                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                    File Name: 07a0330n.06

                                      Filed: May 11, 2007

                                           No. 05-1902

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


KELVIN McCRAY,                                           )
                                                         )
        Petitioner-Appellant,                            )
                                                         )   ON APPEAL FROM THE
                v.                                       )   UNITED STATES DISTRICT
                                                         )   COURT FOR THE EASTERN
LINDA METRISH, Warden,                                   )   DISTRICT OF MICHIGAN
                                                         )
        Respondent-Appellee.                             )
                                                         )
___________________________________________



BEFORE:         BOGGS, Chief Judge; and DAUGHTREY and GIBBONS, Circuit Judges.

        PER CURIAM. Timothy Chaney was shot and killed outside 864 Philip Street in Detroit.

Most witnesses agreed that the shots came from the passenger’s side of a car stopped nearby.

According to the state, Kelvin McCray was sitting in the front passenger’s seat of that car; Orlando

Scott was sitting in the back seat on the passenger’s side; and both men participated in Chaney’s

murder, with one pulling the trigger and the other providing assistance. A Michigan state jury

convicted both McCray and Scott of second-degree murder and use of a firearm during the

commission of a felony. McCray petitioned for a writ of habeas corpus and now appeals the district

court’s denial of his petition.


                                                -1-
No. 05-1902
McCray v. Metrish

        McCray’s strongest claim is that the admission into evidence of an out-of-court statement by

Scott violated his Sixth Amendment right to confront the witnesses against him. We agree that a

constitutional violation occurred. Applying the deferential standard of review mandated by the

Antiterrorism and Effective Death Penalty Act, however, we have no basis to disturb the state court’s

conclusion that the error was harmless.

        We can dispose of McCray’s other three claims more easily. First, he waived his claim that

the admission of his allegedly involuntary confession violated the Fifth Amendment’s protection

against self-incrimination: the section of his appellate brief purportedly addressing that claim in fact

discusses a distinct Fourth Amendment claim on which no certificate of appealability was issued.

Second, his claim that he received ineffective assistance of trial counsel is procedurally defaulted:

our precedent compels us to conclude that the state appellate courts rejected this claim without

reaching the substance because McCray did not comply with a state procedural rule. Third, his claim

that he received ineffective assistance of appellate counsel lacks merit: because he claims that his

counsel ineffectively advanced a Fourth Amendment claim, he must show that the underlying claim

was meritorious, and he cannot do so.

                                                   I

        Scott gave a statement regarding Chaney’s shooting prior to trial. The jury heard a redacted

version of that statement: all names except Scott’s were replaced by the word “blank.” In the

statement, Scott told police that he went to Philip Street looking for people who had robbed a

friend’s dope house; that he and three other people were in a green Acura sedan that stopped in front

of 864 Philip Street, with a fifth person somewhere behind them in a second car; and that he was

                                                 --2--
No. 05-1902
McCray v. Metrish

sitting in the back seat on the passenger’s side. Someone in the Acura, believing that Chaney was

the robber, called Chaney over to the car. The person in the front passenger’s seat removed two

guns, a nine-millimeter and a .380, from the glove compartment and attempted to hand the nine-

millimeter to Scott, but Scott did not take it. That person then fired four or five shots at Chaney as

Chaney was running away.

       The trial court instructed the jury to consider the statement only as evidence against Scott.

And although Scott denied responsibility, one could understand his statement to be self-

incriminating. Some evidence suggested that the shooter was in the back seat on the passenger’s

side, and Scott admitted that he was the one sitting there. But one also could understand Scott’s

statement to inculpate McCray, since other evidence indicated that McCray was the “blank” sitting

in the front passenger’s seat. Scott did not testify at trial, leaving McCray with no opportunity to

cross-examine him about the statement.

       The warden concedes that, despite the redaction and the limiting instruction to the jury, the

trial court’s treatment of Scott’s statement violated the constitutional rule that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const., amend. VI; see generally Bruton v. United States, 391 U.S. 123, 136 (1968) (holding

that the admission of statements by a non-testifying co-defendant can violate the Sixth Amendment

even when the jury receives a limiting instruction). The warden argues, however, that the violation

was harmless error. See Schneble v. Florida, 405 U.S. 427, 432 (1972) (holding that a violation of

Bruton does not require automatic reversal).

                                                  A

                                                 --3--
No. 05-1902
McCray v. Metrish

        To determine whether the error was harmless, we first must identify the appropriate standard

of review. Our approach to a harmless-error question on collateral review depends on whether a

state court addressed the merits of that question on direct review. AEDPA permits us to grant a writ

of habeas corpus “with respect to any claim that was adjudicated on the merits in State court

proceedings” only if the state decision “was contrary to, or an involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d). The federal rule governing harmless-error determinations on direct review is that

an error must be “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24

(1967). When a state court determined that an error occurred but was harmless, “the appropriate

standard of review is the Chapman standard plus AEDPA deference.” Eddleman v. McKee, 471 F.3d

576, 585 (6th Cir. 2006).

        Section 2254(d) applies, however, only when there is a state decision to which we can defer.

If the state court did not address whether an error was harmless (e.g., if it found no error in the first

place), then we cannot apply AEDPA deference. In that situation, we apply the pre-AEDPA standard

articulated by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), asking

whether an error had a “substantial and injurious influence in determining the jury’s verdict.”

        Here, we believe that the Michigan Court of Appeals did address the merits of the harmless-

error question. After determining that it could not resolve a Fourth Amendment challenge to the

admissibility of McCray’s confession without a more developed factual record, that court disposed

of McCray’s Sixth Amendment claim in a single phrase: “if on remand, the trial court determines

that defendant McCray’s inculpatory statement must be suppressed, then it was also reversible error

                                                  --4--
No. 05-1902
McCray v. Metrish

to admit defendant Scott’s redacted statement.” Despite its brevity, that phrase has a clear meaning.

It indicates that the admission into evidence of Scott’s redacted statement was error, but that the error

was harmless as long as McCray’s confession was properly admitted. On remand, the state courts

concluded that there was no error relating to the confession.

        State conclusions of law deserve AEDPA deference regardless of how those conclusions are

expressed. See Harris v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir. 2000) (“Where a state court decides

a constitutional issue by form order or without extended discussion, a habeas court should then focus

on the result of the state court’s decision, applying the standard articulated above.”). Consequently,

we believe that the proper standard of review in this case is the standard articulated in Eddleman.

                                                   B

        Applying that standard, we now ask whether that decision “was contrary to, or an

unreasonable application of, the clearly established federal rule that a trial error is harmless only if

it is harmless beyond a reasonable doubt.” Eddleman, 471 F.3d at 578. That inquiry, like any

harmless-error inquiry, is highly fact-specific, and it requires us to describe the state’s case against

McCray in some detail.

        In addition to Scott’s statement, the jury heard three types of evidence: McCray’s own

statements to police, including a full confession; the eyewitness accounts of six bystanders and two

other occupants of McCray’s Acura; and forensic evidence. Some of the eyewitness accounts and

forensic evidence corroborated elements of McCray’s confession, but none of it, standing alone,

inculpated McCray. In other words, the state’s case against McCray depended on McCray’s

confession.

                                                  --5--
No. 05-1902
McCray v. Metrish

       McCray made three statements to police. In all three statements, he admitted that he and at

least four other people – his cousin Oyd McCray, Scott, Devon Jackson, and Jeff Johnson – went to

Philip Street to investigate a robbery at Jackson’s dope house and that he was in the green Acura in

front of 864 Philip Street when the shooting took place. In his first statement, he indicated that he

was in the front passenger’s seat of the Acura, with Scott directly behind him in the back seat.

Jackson drove a second car and stopped some distance behind the Acura. Chaney approached the

Acura and briefly argued with Scott; as Chaney started to move away, Jackson fired four or five

shots, apparently because he thought Chaney was reaching for a gun. In fact, Chaney was unarmed,

and neither McCray nor Scott asked for a jury instruction addressing the possibility that the shooting

was in self-defense.

       In his second statement, McCray again named Jackson as the shooter. This time, however,

he said that he was driving the Acura (not sitting in the front passenger’s seat) and that Jackson was

in the back seat of the Acura on the passenger’s side (not in a second car).

       In his third statement, McCray confessed that he was the shooter. As in the first statement,

he said that he was in the front passenger’s seat of the Acura, with Scott directly behind him. As in

the first statement, he said that Jackson followed in a second car. Unlike in the first statement,

however, he stated that he was the one who had taken a rusty .380 out of the glove compartment and

fired four or five shots at Chaney as Chaney moved away from the car.

       The accounts of the six bystanders generally corroborate McCray’s confession. All six

agreed that the bullets came from the passenger’s side of a green or gray car stopped in front of 864

Philip Street and that there were four people in the car. The witnesses disagreed, however, about

                                                --6--
No. 05-1902
McCray v. Metrish

where the shots came from. Anthony Cannon testified that the shots came from the front passenger’s

seat. Kimberly Wilson testified that they came from the passenger’s side of the back seat, stating

further that she saw a “skinny arm” reach out and fire the shots; that physical description is

consistent with Scott’s build but not McCray’s. Jeffrey Cannon echoed Wilson’s testimony at trial,

but before trial he had told police that he saw gunfire from both the front and back seats on the

passenger’s side. He explained the inconsistency by stating that he was afraid when he gave his pre-

trial statement because he was in police custody at the time. None of the other bystanders could tell

whether the shots came from the front or back of the car.

        Jeffrey Cannon was the only bystander who could identify any of the people in the car, and

he gave more detailed testimony than the other bystanders gave. He testified that he had seen

McCray’s car about fifteen minutes before the shooting and that at the time McCray was driving.

He said that he did not know whether McCray was still in the driver’s seat when the car stopped in

front of 864 Philip Street, but he professed confidence that Scott was the shooter.

        The jury also heard the accounts of two people who were in the car with McCray and Scott.

It was stipulated that Oyd McCray would have testified that Oyd – not Kelvin McCray – was driving

the car, that Scott was sitting in the back passenger’s seat, and that “he didn’t fire any shots.” (It is

unclear whether “he” refers to Oyd or Scott.) Testifying for the defense, Jeffrey Johnson stated that

he was in the back seat on the driver’s side of the green Acura with McCray driving, Oyd in the front

passenger’s seat, and Scott in the back seat on the passenger’s side. He stated that no one in the

Acura had a weapon and that the shots came from somewhere behind the Acura, possibly from inside

another car.

                                                  --7--
No. 05-1902
McCray v. Metrish

       Finally, the jury heard three relevant stipulations regarding forensic evidence. First, police

recovered five spent casings in front of 864 Philip Street and one bullet that hit Chaney. Second,

those casings were found near where McCray’s car had stopped, not where a second car following

McCray’s car might have stopped. Third, all of the casings came from the same .380-caliber gun,

and police had not recovered the gun.

       Against this evidence, McCray argued at trial that his first statement, in which he said that

Jackson shot Chaney from a second car, was the truth. His second and third statements, he claimed,

were falsehoods that he invented because he believed that he would not be released until he told

police what they wanted to hear.

                                                  C

       Set against these facts, was the state-court decision – that the admission of Scott’s statement

was harmless beyond a reasonable doubt – an unreasonable application of clearly established federal

law? To answer that question, we must assume the uncomfortable position of surrogate jurors,

critically evaluating the evidence presented at trial. We review that evidence in two steps. First, we

“consider the evidence before the jury absent the constitutionally infirm evidence,” determining the

strength of the case that the jury should have seen. Brumley v. Wingard, 269 F.3d 629, 646 (6th Cir.

2001). Second, we examine the persuasiveness of the erroneously admitted evidence, considering

the nature of the evidence, the emphasis placed on it within the state’s case, its relationship to the

other evidence presented, and whether there was opportunity to challenge it through cross-

examination. Eddleman, 471 F.3d at 586 (citing Arizona v. Fulminante, 499 U.S. 279, 296-302

(1991)). As the persuasiveness of the erroneously admitted evidence increases, the strength required

                                                --8--
No. 05-1902
McCray v. Metrish

in the state’s untainted case to render the error harmless increases as well. When the state’s case is

extremely weak, almost no error will be harmless. When its case is overwhelmingly strong, even

a very large error might be harmless.

       Regarding the state’s case, as noted earlier, the forensic evidence and some of the

eyewitnesses accounts corroborated elements of McCray’s third statement, but no evidence other

than the third statement independently inculpated McCray. Thus, without the third statement, the

state’s case against McCray would have been very weak. But the third statement is quite powerful.

“A confession is like no other evidence. Indeed, the defendant’s own confession is probably the

most probative and damaging evidence that can be admitted against him.” Fulminante, 499 U.S. at

296 (quotation marks and citations omitted). This is especially true when the confession includes

details about the crime – the goal of finding the robber of Jackson’s dope house, the number of shots

fired, the caliber of the gun, that Chaney was moving away from the car when he was shot – rather

than merely a bare assertion of guilt. See ibid. (describing a qualitative distinction between a

circumstantially inculpatory statement and “a full confession in which the defendant discloses the

motive for and means of the crime”). Based on the confession alone, we think that without Scott’s

statement the case against McCray was at least moderately strong.

       Regarding the erroneously admitted evidence, there are three reasons to think that Scott’s

statement was not particularly persuasive as evidence against McCray. First, the trial court explicitly

instructed the jury that it should consider the statement only as evidence against Scott. We generally

presume that juries follow such limiting instructions. Richardson v. Marsh, 481 U.S. 200, 208

(1987). Even when the danger that a jury might not heed the instruction is sufficient for us to say

                                                 --9--
No. 05-1902
McCray v. Metrish

that the instruction does not eliminate the error, as here, it greatly reduces the harm attendant to the

error. See United States v. Lane, 474 U.S. 438, 450 (1986) (holding that a misjoinder was harmless

when “the District Court provided a proper limiting instruction, and in the final charge repeated that

instruction and admonished the jury to consider each count and defendant separately”).

        Second, the statement that the jury heard named a “blank” as the shooter, not McCray. While

the jury might have surmised that the blank referred to McCray, if for no other reason than because

the state had charged him with Chaney’s murder, it could not have had perfect confidence that its

supposition was correct.      Like the limiting instruction, the redaction probably reduced the

statement’s impact on the jury even though it was not enough to make the admission of Scott’s

statement constitutionally permissible.

        Third, a self-serving statement lacks the persuasive force of testimony by a disinterested

witness. Eddleman, 474 F.3d at 587 (concluding that an error was not harmless when much of the

properly admitted inculpatory testimony came from witnesses who “had reasons to implicate

Eddleman other than a commitment to telling the truth”). Here, the properly admitted evidence,

especially the confession, was not thus discountable, while Scott’s statement was plainly self-

serving, and for that reason the jury may well have viewed it skeptically.

        McCray argues that our view of Scott’s statement understates its likely influence on the jury.

Because Scott’s account of the shooting closely paralleled McCray’s third statement, McCray claims,

the admission of Scott’s statement undercut his position that his third statement was a false

confession. The problem with this argument is that McCray’s false-confession theory would have

seemed incredible no matter what. As noted earlier, McCray at trial took the position that he told

                                                 --10--
No. 05-1902
McCray v. Metrish

the truth in his first statement, in which he said that Jackson shot Chaney from a second car. This

position is flatly inconsistent with the location of the shell casings, close to where McCray’s car was

stopped, and with the testimony of the six bystanders, all of whom agreed that the shots came from

the passenger’s side of McCray’s car. Only Johnson, another occupant of McCray’s car, gave

testimony that was compatible with McCray’s core position; even the testimony of Jeff Cannon and

Kimberly Wilson, who identified Scott rather than McCray as the shooter, contradicts it.

Consequently, the jury likely disbelieved McCray’s theory because it went against the overwhelming

weight of the properly-admitted evidence, not because Scott’s statement reinforced McCray’s

confession.

       Nevertheless, we do not think that this is an easy case. Chapman’s requirement that an error

must be harmless beyond a reasonable doubt is a high bar to findings of harmlessness on direct

review. Applying the Chapman standard in two cases somewhat similar to McCray’s case, the

Supreme Court reached opposing results. In Schneble v. Florida, the Court held that an error was

harmless. 405 U.S. at 432. Many of the facts in Schneble parallel the facts of McCray’s case: the

defendant confessed to strangling a woman with a rope, but argued that his confession was false; his

co-defendant made an out-of-court statement that echoed the defendant’s confession; the trial court

instructed the jury not to consider the co-defendant’s statement against the defendant, but the

Supreme Court held that it was error to admit it at all. Id. at 429. But in Schneble, unlike in this

case, a key piece of physical evidence supported the defendant’s confession: shortly after the

murder, Schneble had rope burns on his hands. Id. at 431.



                                                --11--
No. 05-1902
McCray v. Metrish

       Conversely, in Arizona v. Fulminante, the Court held that the erroneous admission of a

coerced confession was not harmless under the Chapman standard. 499 U.S. at 302. Somewhat like

in this case, the only other significant evidence against the defendant was a second, untainted

confession, and the defendant challenged the reliability of that confession. Id. at 296. The Court’s

analysis, however, relied heavily on the fact that the erroneously admitted evidence was a confession,

noting that “the risk that the confession is unreliable, coupled with the profound impact that the

confession has upon the jury, requires a reviewing court to exercise extreme caution before

determining that the admission of the confession at trial was harmless.” Ibid. The evidence

erroneously admitted here – Scott’s statement – would not have had such a profound impact on

McCray’s jury.

       This case falls somewhere between Schneble, where the state’s case was stronger, and

Fulminante, where the erroneously admitted evidence was more persuasive. Were it before us on

direct review, we might well have conclude that the lack of physical evidence inculpating McCray

distinguishes this case from Schneble and therefore that the admission of Scott’s statement was not

harmless. But it is not before us on direct review. Our charge is not to ask whether the error was

harmless beyond a reasonable doubt (the Chapman standard applicable on direct review) but rather

whether it was unreasonable for the state court to conclude that it was harmless. Precisely because

the underlying question is close, we cannot say that the state decision was unreasonable. Mitchell

v. Esparza, 540 U.S. 12, 17 (2003) (“A federal court may not overrule a state court for simply

holding a view different from its own, when the precedent from this Court is, at best, ambiguous.”).



                                                --12--
No. 05-1902
McCray v. Metrish



                                                  II

       McCray also raises three claims regarding the admissibility of his confession. After

summarizing the circumstances of McCray’s initial arrest and detention, we address those claims in

turn. It is clear that none provides a basis to grant McCray’s petition.

                                                  A

       Police first learned that McCray was involved in Chaney’s murder from Jeffrey Cannon.

While himself in police custody, Cannon said that Chaney was shot by someone in a gray Toyota

four-door car with “gold star type wheels” and “gold trim around the wheel wells.” Other eyewitness

had described the car as a green Acura with star wheels. Cannon said that a man whom he knew as

“Head” owned the car and provided the addresses of three residences where he thought that police

might find Head. He described Head as a black male in his early 20s, about 5' 9", with a heavy build,

dark complexion, bald head, and thin mustache.

       At one of these addresses, police officers saw a dark-green four-door Acura with star wheel

covers. They waited until McCray walked out of the residence, ascertained that the Acura was his,

and arrested him, explaining that he matched the description of Head. The description of McCray

contained in an officer’s interrogation record made later that day, however, differs somewhat from

Cannon’s description of Head. It describes McCray as a 21-year-old black man with dark

complexion, matching the description, but also lists his height as only 5' 6" and states that he had a

medium build, short hair, and no mustache.



                                                --13--
No. 05-1902
McCray v. Metrish

          McCray was arraigned three days after his arrest. In the interim period, he made the three

statements introduced at trial. The detective who questioned McCray explained the delay by stating

that “[t]he case was an active case, we were following people, we were following up trying to locate

other people, talking to them.”

          Before trial, according to McCray, his trial counsel filed a motion to suppress his confession,

but then withdrew the motion before the trial court could hold a hearing or rule on it. On direct

appeal, McCray raised two challenges to the confession’s admissibility. First, he claimed that his

detention was unreasonable because he was arrested without probable cause and held for three days

prior to arraignment, in violation of the Fourth Amendment, and that his confession was an

inadmissible fruit of the unlawful detention. Second, he claimed that his confession was involuntary

and therefore that its admission into evidence violated the Fifth Amendment’s protection against

self-incrimination. The Michigan Court of Appeals remanded the case to the trial court for an

evidentiary hearing regarding the Fourth Amendment claim. On remand, the trial court found that

McCray’s arrest was supported by probable cause and that police did not unreasonably delay

McCray’s arraignment in order to extract incriminating evidence. That finding was affirmed on

appeal.

          Later, McCray returned to the state trial court to file a motion for relief from the judgment,

arguing that he received ineffective assistance of trial and appellate counsel in challenging the

admissibility of his confession on direct review. The court held that the actions and omissions

alleged by McCray “do not constitute such prejudicial and egregious errors to warrant relief” and

denied the motion. The Michigan Court of Appeals and the Michigan Supreme Court each denied

                                                  --14--
No. 05-1902
McCray v. Metrish

his application for leave to appeal for failure to meet the burden of establishing entitlement to relief

under Michigan Court Rule 6.508(D).

       In his petition for a writ of habeas corpus, McCray reprises his Fourth Amendment claim,

his Fifth Amendment claim, and his two ineffective-assistance claims.

                                                   B

       We cannot reach the merits of either the Fourth Amendment claim or the Fifth Amendment

claim. In his appellate brief, McCray includes a section heading regarding the Fifth Amendment

claim, but the discussion that follows that heading is not about the Fifth Amendment. Instead,

apparently due to a mistake by his attorney, it is about the Fourth Amendment claim. The principle

that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived” precludes us from addressing the substance of the Fifth

Amendment claim. Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (internal

quotation marks and citations omitted).

       Nor can we address the substance of the accidentally-briefed Fourth Amendment claim. Both

the district court and this court refused to grant a certificate of appealability with respect to that

claim. AEDPA states that, “[u]nless a circuit justice or judge issues a certificate of appealability,

an appeal may not be taken to the court of appeals.” 28 U.S.C. § 2253(c)(1)(A). Because no

certificate was issued here, the statute’s plain language prohibits us from addressing the Fourth

Amendment claim.




                                                 --15--
No. 05-1902
McCray v. Metrish

                                                   C

         We also do not need to reach the merits of McCray’s ineffective-assistance-of-trial-counsel

claim. “When a state-law default prevents the state court from reaching the merits of a federal claim,

that claim can ordinarily not be reviewed in federal court.” Ylst v. Nunnemaker, 501 U.S. 797, 801

(1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977)). Our precedent compels us to

conclude that the state courts relied on an “adequate and independent state procedural bar” to reject

McCray’s claim regarding the ineffectiveness of trial counsel on a state procedural ground and

therefore that the claim is procedurally defaulted. Luberda v. Tripett, 211 F.3d 1004, 1005 (6th Cir.

2000).

         As noted earlier, McCray raised his ineffective-assistance claims in a motion for relief from

the judgment rather than on direct appeal. After the trial court addressed and rejected those claims

on the merits, the state appellate courts refused to review McCray’s claim. They stated in one-

sentence orders that he had “failed to meet the burden of establishing entitlement to relief under

[Michigan Court Rule] 6.508(D).” The relevant part of Rule 6.508(D) bars courts from granting a

motion for relief from the judgment that “alleges grounds for relief, other than jurisdictional defects,

which could have been raised on appeal from the conviction and sentence or in a prior motion.”

M.C.R. 6.508(D)(3).

         We have confronted essentially the same facts before. In Luberda, the petitioner filed a

motion for relief from the judgment raising four constitutional claims that he had not raised in his

initial appeal, including a claim of ineffective assistance of trial counsel. 211 F.3d at 1006. After

the trial court rejected his motion on the merits, the Michigan Court of Appeals and the Michigan

                                                 --16--
No. 05-1902
McCray v. Metrish

Supreme Court affirmed, ruling that ‘[Luberda had] failed to meet the burden of establishing

entitlement to relief under M.C.R. 6.508(D).’” Ibid. (alteration in original). We held that his claims

were procedurally defaulted. The state supreme court, we reasoned, was the last state court to issue

a reasoned (albeit brief) decision in Luberda’s case, and by invoking Rule 6.508(D) it made clear that

its decision to deny relief rested exclusively on a state procedural rule. Id. at 1005.

       We see no relevant distinction between this case and Luberda. Following our binding

precedent, we hold that McCray’s claim is procedurally defaulted.1

       We may excuse a petitioner’s default, and address an otherwise-defaulted claim on the

merits, only if we conclude that “there was cause for the default and prejudice resulting from the

default, or that a miscarriage of justice will result from enforcing the procedural default in the




       1
         McCray contends that his case is controlled by Abela v. Martin, 380 F.3d 915 (6th Cir.
2004), rather than by Luberda. In Abela, we held that a claim was not procedurally defaulted
when the state trial court and the state court of appeals both addressed it on the merits but the
Michigan Supreme Court invoked Rule 6.508(D) in denying review. Abela does not compel us
to reach the same result here, because the relevant procedural facts are not the same. In
McCray’s case, Luberda, and Abela, the Michigan Supreme Court relied on Rule 6.508(D) to
deny review of a claim. However, in McCray’s case and Luberda – but not in Abela – the state
court of appeals also relied on Rule 6.508(D), “making it clearer that the Michigan Supreme
Court was also invoking [a procedural] bar when it referred to M.C.R. 6.508(D).” Abela, 380
F.3d at 923.
        Moreover, because “en banc consideration is required to overrule a published opinion of
the court,” 6th Cir. R. 206(c), Abela could not have overruled Luberda and our subsequent
opinions following Luberda. See Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005);
Munson v. Kapture, 384 F.3d 310, 314-15 (6th Cir. 2004); Hargrave-Thomas v. Yukins, 374 F.3d
383, 387 (6th Cir. 2004); Burroughs v. Makowski, 282 F.3d 410, 414 (6th Cir. 2002); Simpson v.
Jones, 239 F.3d 399, 407 (6th Cir. 2000). Luberda remains binding precedent; its facts are on all
fours with the facts of McCray’s case; and it compels us to conclude that McCray’s ineffective-
assistance-of-trial-counsel claim is procedurally defaulted.
                                                 --17--
No. 05-1902
McCray v. Metrish

petitioner’s case.” Coleman v. Thompson, 501 U.S. 722, 749 (1991). But we do not believe that

McCray satisfies these conditions.

       First, “the existence of cause for a procedural default must ordinarily turn on whether the

prisoner can show that some objective factor external to the defense impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Ineffective

assistance of appellate counsel, however, can constitute cause for failure to raise a claim of

ineffective assistance of trial counsel in a timely fashion. Id. at 496. McCray, for the first time on

appeal, claims that any procedural default was caused by ineffective appellate assistance. He argues

that his appellate counsel knew both that he wanted to pursue an ineffective-assistance claim and that

his trial counsel had withdrawn as appellate counsel so that he could raise the issue on direct appeal.

Yet “[h]abeas petitioners cannot rely on conclusory allegations of cause and prejudice to overcome

procedural default; they must present affirmative evidence or argument as to the precise cause and

prejudice produced.” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006). McCray’s

allegations in support of his ineffective-assistance-as-cause theory – all made in a single sentence

of his appellate brief – are both conclusory and unsupported by evidence.

       Second, to establish prejudice, a petitioner advancing an ineffective-assistance claim must

make the same showing that he would have been required to make to establish that the ineffective

assistance itself was prejudicial. Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir. 2006). “The

defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S.

668, 694 (1984). Here, there is no chance that the outcome would have been different if McCray’s

                                                --18--
No. 05-1902
McCray v. Metrish

trial counsel had not withdrawn the motion to suppress. On direct appeal, the Michigan Court of

Appeals ordered the trial court to conduct an evidentiary hearing. That evidentiary hearing probed

the exact questions that the withdrawn motion to suppress would have raised. After the hearing, the

trial court concluded that McCray’s initial arrest was supported by probable cause and that his

confession was voluntary. Whether or not those holdings are correct, there is no reason to think that

the result would have been different had the trial court addressed them in a different procedural

setting. Cf. Van v. Jones, 472 F.3d 292, 314 (6th Cir. 2007) (holding that a Michigan consolidation

hearing is not a “critical stage” because “counsel could have cured the potential harm arising from

his absence by making a motion to sever later in the proceeding against his client”).

       Third, “[a] fundamental miscarriage of justice results from the conviction of one who is

‘actually innocent.’” Lundgren, 440 F.3d at 764 (quoting Murray, 477 U.S. at 496). McCray does

not attempt to show that he is actually innocent. Nor could he, given his confession, Scott’s

inculpatory statement, and the other evidence.

       Because McCray can show neither cause or prejudice, nor that failure to consider his

ineffective-assistance claim would result in a miscarriage of justice, we cannot excuse his procedural

default.

                                                   D

       Finally, McCray argues that his appellate counsel provided constitutionally ineffective

assistance at the evidentiary hearing before the trial court after the remand ordered by the state court

of appeals. He posits that his Fourth Amendment claim that his arrest was not supported by probable

cause would have succeeded had his appellate counsel introduced evidence that McCray did not

                                                 --19--
No. 05-1902
McCray v. Metrish

match the physical description of Head given by Jeffrey Cannon. Although we do reach the merits

of this claim, we conclude that the district court was correct to deny relief.

       To prevail on his ineffective-assistance claim, McCray must show that counsel’s performance

was deficient and that the deficient performance prejudiced his defense. See Strickland, 466 U.S.

at 687. McCray cannot show prejudice. “Where defense counsel’s failure to litigate a Fourth

Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also

prove [1] that his Fourth Amendment claim is meritorious and [2] that there is a reasonable

probability that the verdict would have been different absent the excludable evidence in order to

demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). McCray can

satisfy the second requirement: had the confession been excluded, the state would have had little

evidence of McCray’s guilt, and there would have been a reasonable probability (if not a certainty)

that he would not have been convicted.

       But he cannot satisfy the first requirement. “The usual rule is that a police officer may arrest

without warrant one believed by the officer upon reasonable cause to have been guilty of a felony

. . . .” Carroll v. United States, 267 U.S. 132, 156 (1925). The Court “has never invalidated an

arrest supported by probable cause solely because the officers failed to secure a warrant.” Gerstein

v. Pugh, 420 U.S. 103, 113 (1975). To determine whether probable cause existed, we ask whether

at the time of the arrest an officer knows of facts and circumstances “sufficient to warrant a prudent

man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio,

379 U.S. 89, 91 (1964).



                                                --20--
No. 05-1902
McCray v. Metrish

       Despite the discrepancies between Cannon’s description of Head and the arresting officer’s

description of McCray, the police had probable cause to arrest McCray. Cannon provided officers

with three addresses at which they might find Head, including the address of the house outside of

which McCray was arrested. Cannon stated that Head was driving a gray Toyota four-door car with

“gold star type wheels” and “gold trim around the wheel wells.” Other eyewitness had described the

car as a green Acura with star wheels. Officers knew from a police database that McCray owned a

green Acura. They saw a green Acura with star wheels and gold trim parked outside the house where

he was arrested. They waited until McCray walked out of the residence, ascertained that the Acura

was his, and arrested him. This information alone, without any reference to whether McCray’s

appearance matched Cannon’s description of Head, is sufficient to establish probable cause. In

particular, the fact that officers found the Acura parked outside a house specifically identified by

Cannon makes it reasonable for officers to believe that McCray was the suspect whom they sought.

       Moreover, the discrepancies between the two descriptions are not as serious as they appear.

First, Cannon described Head as having a heavy build, while McCray’s interrogating report described

him as having a medium build. Yet the interrogation report listed McCray’s height as 5'6" and his

weight as 165 pounds. Based on those numbers, it seems possible that an observer reasonably could

have described McCray’s build as either medium or heavy – such that an officer looking for a heavy

person would not automatically conclude that McCray was not his man.2 Second, Cannon described

Head as having no hair and a light mustache, while the interrogation report described him as having


       2
        Indeed, at trial, McCray’s counsel responded to Kimberly Wilson’s testimony that the
shooter had a skinny arm by stating that “I didn’t hear anyone refer to [McCray] as being a man
with skinny arms” – suggesting that McCray’s build probably was closer to “heavy” than “thin.”
                                               --21--
No. 05-1902
McCray v. Metrish

short hair and no mustache. That disparity, however, could result from little more than a few days

of shaving and not getting a haircut. Third, Cannon described Head as 5'6", while the interrogation

report listed his height as 5'9". While this three-inch difference is significant, both 5'6" and 5'9" fall

within the range of approximately average male heights. Given all of these facts, the diverging

descriptions may well have resulted primarily from the difficulty of translating a full description of

a person’s appearance into a series of single adjectives transcribed onto a form. This is especially

likely because Cannon knew Head well and readily identified McCray as Head at trial.

        Based on these circumstances, it is clear that McCray’s arrest was supported by probable

cause. A person of reasonable caution easily could have believed that McCray had committed an

offense. Beck, 379 U.S. at 95.

        In dismissing McCray’s motion for relief from the judgment, the state trial court concluded

that McCray’s claim of ineffective assistance of appellate counsel had no merit. That decision was

not contrary to, or an unreasonable application of, clearly established law. Because McCray’s Fourth

Amendment claim that his arrest was not supported by probable cause is not meritorious, he cannot

prevail on his ineffective-assistance claim.

                                                   III

        The judgment of the district court denying McCray’s petition is affirmed.




                                                  --22--
No. 05-1902
McCray v. Metrish

          JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur with the majority’s

decision to deny the petition and its resolution of all issues in the case; however, I would not apply

the AEDPA standard of review to the issue involving Scott’s statement because I believe that the

Michigan courts did not adjudicate the harmlessness of the admission of Scott’s statement on the

merits.

          The only state court to mention the admissibility of Scott’s statement was the Michigan Court

of Appeals, prior to remanding the case for factual development of McCray’s claim that his

confession should be suppressed. The entirety of its consideration of the issue was: “if on remand,

the trial court determines that defendant McCray’s inculpatory statement must be suppressed, then

it was also reversible error to admit defendant Scott’s redacted statement.” The majority reads this

comment of the Michigan Court of Appeals to mean that the admission of Scott’s statement was

harmless if McCray’s statement was properly admitted. (Op. 4-5.) I disagree that the comment can

be read in this way. The only conclusion that may be drawn from the Michigan Court of Appeals’s

statement is that if McCray’s statement was not admissible then the admission of Scott’s statement

was not harmless. It does not logically follow that the reverse of each proposition is true.3 It seems

equally likely that the Michigan court intended to express the view that if the confession were

suppressed, the admission of Scott’s statement was clearly reversible error, but that it was reserving

judgment on the issue in the event that the confession was not suppressed. Therefore, given the


          3
              For example, if a case is not from the Sixth Circuit, then it is not from the Eastern

District of Michigan. It does not follow that if a case is from the Sixth Circuit, then it is from the

Eastern District of Michigan.
                                                     --23--
No. 05-1902
McCray v. Metrish

absence of any other indication to the contrary, I would conclude that the Michigan courts did not

adjudicate the harmlessness of the admission of Scott’s statement.

       In the absence of a state court decision on the merits, the pre-AEDPA standard of review

applies, and as the majority notes, we ask whether the error had a “substantial and injurious influence

in determining the jury’s verdict,” with the petitioner having the burden of demonstrating the trial

error resulted in “actual prejudice.” Brecht, 507 U.S. at 637. Because McCray cannot satisfy this

standard, which is arguably more deferential than the AEDPA standard, see Eddleman, 471 F.3d at

582-83, I concur in the denial of the petition.




                                                  --24--
