               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0632n.06
                                                                                       FILED
                                          No. 08-1646                               Sep 10, 2009
                                                                              LEONARD GREEN, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

KENT JAY GOLDY,                                      )
                                                     )
       Petitioner-Appellee,                          )
                                                     )      ON APPEAL FROM THE
v.                                                   )      UNITED STATES DISTRICT
                                                     )      COURT FOR THE EASTERN
ERICA TIERNEY and                                    )      DISTRICT OF MICHIGAN
KENNETH J. AUD,                                      )
                                                     )
       Respondents-Appellants.                       )


Before:        CLAY and ROGERS, Circuit Judges; JORDAN, District Judge.*

       LEON JORDAN, District Judge. Respondents appeal the district court’s grant, on

the ground of ineffective assistance of trial counsel, of Kent Jay Goldy’s 28 U.S.C. § 2254

petition for writ of habeas corpus. For the reasons that follow, we REVERSE.

                                                I.

       A jury convicted Goldy of possessing a silencer in violation of Michigan Compiled

Laws § 750.224(1)(b) and of carrying a concealed weapon in violation of Michigan

Compiled Laws § 750.227(2). He was sentenced to five years of probation. The facts

underlying the conviction are adequately set forth in the district court’s memorandum




       *
        The Honorable R. Leon Jordan, Senior United States District Judge for the Eastern District
of Tennessee, sitting by designation.
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Goldy v. Tierney, et al.

opinion, Goldy v. Tierney, 548 F. Supp. 2d 422 (E.D. Mich. 2008), and need not be repeated

herein.

          The Michigan Court of Appeals affirmed the conviction, notwithstanding Goldy’s

arguments that he was denied the effective assistance of trial counsel and that the jury

instruction on the silencer charge inadequately conveyed the mens rea of that offense. The

Michigan Supreme Court denied review.

          Goldy then filed his petition for habeas corpus relief. The district court conducted an

evidentiary hearing and found Goldy’s trial counsel ineffective for two reasons: (1) failing

to object to a faulty jury instruction; and (2) advising Goldy not to testify after an adverse

evidentiary ruling. The district court ordered the conviction expunged. The present appeal

followed.

                                                II.

          We review a district court’s legal conclusions in a habeas petition de novo, and we

review factual findings for clear error. Miller v. Webb, 385 F.3d 666, 671 (6th Cir. 2004).

In analyzing an ineffective assistance claim, “we evaluate the totality of the evidence - ‘both

that adduced at trial, and the evidence adduced in the habeas proceeding[s].’” Wiggins v.

Smith, 539 U.S. 510, 536 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 397-98 (2000)

(emphasis omitted)).




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       Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Goldy’s

application for habeas corpus relief cannot be granted with respect to any claim adjudicated

on the merits in state court proceedings unless the adjudication:

       (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). A state court decision involves an unreasonable application of clearly

established Supreme Court precedent when it correctly identifies the governing legal

principle but applies that principle in an objectively unreasonable manner. Williams, 529

U.S. at 407-09.

       Our review of Goldy’s ineffective assistance claim is governed by the familiar two-

prong test of Strickland v. Washington, 466 U.S. 668 (1984). Goldy must first show that his

trial counsel’s representation “fell below an objective standard of reasonableness.” Id. at

688. Our inquiry must be whether his attorney’s performance was “reasonable considering

all the circumstances,” and we “should recognize that counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. at 688, 690. Second, Goldy “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the



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Goldy v. Tierney, et al.

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at 694.

                                               III.

       Michigan Compiled Laws § 750.224(1)(b) prohibits possession of a silencer.

“Silencer” is defined in material part as, “A device for muffling, silencing, or deadening the

report of a firearm.” Mich. Comp. Laws § 750.224(4)(a). In his opening statement, trial

counsel argued Goldy’s position that the device in question was not a silencer but rather “a

barrel extender, which . . . is part of the conversion kit that transforms a pistol into a rifle.”

Counsel further informed the jurors that Goldy “does intend to testify,” and he outlined the

expected content of that testimony.

       Prior to opening statements, the judge addressed defense counsel’s objection to the

potential testimony of Goldy’s former coworker Eric White.

       [Defense Counsel]: . . . [I]t’s my understanding there’s going to be testimony
                          that Eric White . . . met him in a parking lot . . . . He
                          claims that this gun that they’re calling – where it has,
                          they claim it’s a silencer – that my client took it out and
                          shot it in the parking lot and it sounded quieter than a
                          pebble gun. And I think they want to introduce
                          testimony relative to that. . . .

       The Court:             . . . Are you planning to call Mr. White?

       [Prosecution]:         Yes. In fact –

       The Court:             What are you calling him for?


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Goldy v. Tierney, et al.

       [Prosecution]:       Well, he would provide information that the defendant
                            has in the past been in possession of a silencer. He’s
                            saying that this is a barrel extender.

       ...

       The Court:           – I guess whether he’s been, in the past, in possession of
                            a silencer hasn’t got anything to do with this particular
                            case here.

       ...

       The Court:           [To Prosecutor] . . . with all due respect, I don’t see
                            whether he may have owned one in the past is more
                            prejudicial than probative [sic]. It doesn’t go to the issue
                            of this particular item . . . .

Although this interplay did not result in a definitive ruling from the bench, the clear

implication is that White would not be allowed to testify. We note that our review of this

exchange in its entirety does not make clear every parameter of White’s intended testimony,

as several statements were interrupted midsentence in the rapid dialogue between the judge

and the attorneys.

       Later in the trial, Goldy’s counsel again expressed concern regarding White.

       [Defense Counsel]: Eric White . . . he’s the one that says that Mr. Goldy and
                          him were in the parking lot and he shot this - that barrel
                          extender in [sic] parking lot. . . .

       The Court:           I’ve already said I thought that was irrelevant.

       [Defense Counsel]: But every time I go into it a little bit . . . then I’m told
                          that I opened the door. I’m trying to keep it out . . .


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Goldy v. Tierney, et al.

       The Court:            Well, if your client is going to say he never shot the gun
                             with that on it . . .

       [Defense Counsel]: I’m not going to have him say that.

       The Court:            And if he testified to that, then definitely that witness
                             becomes important.

       ...

       The Court:            If your client denies firing that gun with that item
                             attached to it, then this guy’s testimony becomes
                             pertinent.

       ...

       [Prosecution]:        I’m going to ask Mr. White – I’m going to ask, if he
                             [Goldy] testifies, which is his right to do or not to do, I’m
                             going to ask him on May 20 do you recall being with
                             Eric White and firing that weapon with . . . this item on
                             it, and if he says yes, he says yes. If he says no . . .

       The Court:            If he says no, then Mr. White testifies.

       ...

       [Defense Counsel]: . . . Your Honor, that’s more prejudicial . . .

       The Court:            No, it’s not, at that point it’s his credibility . . .

Again, our review of this exchange in its totality does not make clear the full scope of

White’s intended testimony, as the prosecution’s explanation was again cut off midsentence.

       At the district court hearing, both Goldy and his trial counsel testified that the ruling

regarding White caused them to decide not to put Goldy on the stand. Goldy stated that he


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Goldy v. Tierney, et al.

“absolutely” wanted to testify but followed counsel’s advice not to do so in order to exclude

White. In response to questioning by Goldy’s appellate attorney, trial counsel also testified

that he was aware White would testify that Goldy referred to the device as “a silencer.”

Counsel further confirmed his understanding that the prosecution intended “to ask him about

whether or not Mr. Goldy ever shot that and whether they ever talked about it being a

silencer.” In response to additional questioning from appellate counsel, Goldy’s trial attorney

affirmed that he “obviously anticipated that this [White’s testimony] was going to be a

problem.” 1

         The state court of appeals did not squarely address the issue of White’s testimony but

stated generally that Goldy’s decision not to testify was the “sort of strategic decision . . . that

we do not second guess.” See People v. Goldy, No. 246501, 2004 WL 1392404, at *3 (Mich.

Ct. App. June 22, 2004). We therefore apply modified AEDPA deference, focusing on “the

result reached not the reasoning used.” See Hawkins v. Coyle, 547 F.3d 540, 546-47 (6th Cir.

2008).

         The state court did not unreasonably apply Strickland to Goldy’s decision not to

testify. Goldy’s counsel was aware that White would testify that Goldy knew the device at



         1
         As further evidence that Goldy’s decision not to testify was a joint strategy, trial counsel
responded affirmatively when asked by appellate counsel, “And you felt that if Mr. White came in,
it would be damaging. He [Goldy] agreed. And you jointly – you recommended he not take the
stand, and he followed that advice willingly. Is that a fair statement?”

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No. 08-1646
Goldy v. Tierney, et al.

issue was a silencer. That testimony would be damning, since Goldy had maintained that he

viewed the device as only a “barrel extender.” It follows that White’s testimony would have

likely been admissible to show knowledge or absence of mistake. See Mich. R. Evid.

404(b)(1). Although the prosecuting attorney was generally cut off whenever he tried to

explain the purpose of White’s testimony, Goldy’s counsel should have been aware of the

lurking danger, and thus could reasonably advise Goldy not to take the stand.

       The district court observed that “it is reasonably probable that, if presented with Rule

608(b) and his prior ruling, the trial court would have ruled that White’s testimony could not

be used to impeach Petitioner on [a] collateral matter.” Goldy v. Tierney, 548 F. Supp. 2d

422, 428 (E.D. Mich. 2008). It is, however, also reasonably probable that, if presented with

Rule 404(b), the trial judge would have considered White’s testimony and deemed it relevant

to show knowledge or absence of mistake. “Counsel’s strategy choice was well within the

range of professionally reasonable judgments,” Strickland, 466 U.S. at 699, and Goldy has

not overcome the presumption that his attorney’s decision was sound trial strategy. “There

are countless ways to provide effective assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client in the same way.” Id. at 689.

       Trial counsel made a strategic decision to advise Goldy not to testify because counsel

predicted that the value would be outweighed by the damage of White’s impeachment

testimony. That assistance was constitutionally adequate under Strickland. Although the


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Goldy v. Tierney, et al.

Michigan Court of Appeals did not fully address this claim, its application of Strickland was

not objectively unreasonable.

                                             IV.

       Goldy also argues that his trial counsel was ineffective in not objecting to a jury

instruction on the silencer charge that inadequately conveyed the mens rea of the offense.

Consistent with the Michigan Standard Jury Instructions, the trial court charged the jury as

follows:

       Now, the defendant is also charged with the crime of possessing a muffler or
       silencer. A muffler or silencer is a device for deadening or muffling the sound
       of a firing gun. Now, to prove this charge, the prosecution must prove each
       of the following elements beyond a reasonable doubt. And there’s just two.

       First, that the defendant knowingly possessed a muffler or silencer.

       And second, that at the time he possessed it, the defendant knew that the
       muffler or silencer was a weapon.

Goldy contends, and the district court agreed, that this pattern charge does not “require[] the

prosecution to prove that Petitioner was aware of ‘the features’ of the device alleged to be

a silencer ‘that brought it within the scope of’ M.C.L. 750.224.” Goldy v. Tierney, 548 F.

Supp. 2d at 430 (quoting Staples v. United States, 511 U.S. 600, 619 (1994)).

       The state court of appeals held that Goldy waived this argument because he did not

object to the charge. People v. Goldy, No. 246501, 2004 WL 1392404, at *3 (Mich. Ct. App.

June 22, 2004).    The appellate court further commented, however, that “the general


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Goldy v. Tierney, et al.

instruction that was given without objection was sufficient to inform the jurors of the

elements of the offense.” Id. at 2. The state court result was not an unreasonable application

of Strickland.

       Michigan Compiled Laws § 750.224(1)(b) prohibits possession of a silencer, defined

in material part as, “A device for muffling, silencing, or deadening the report of a firearm.”

Mich. Comp. Laws § 750.224(4)(a) (emphasis added). That definition (“A device for ...”)

was incorporated in the jury instructions. As Goldy himself points out in his appellate

briefing, “The word ‘for’ connotes intent.” See Lawson ex rel. Lawson v. Fortis Ins. Co., 301

F.3d 159, 165 (3d Cir. 2002); see also Goldy v. Tierney 548 F. Supp. 2d 422, 429 (E.D.

Mich. 2008) (“Petitioner argues that the use of the word ‘for’ connotes intent.”). Therefore,

the jury was required to find that Goldy knowingly possessed a device intended to deaden

or muffle the sound of a firing gun. The jury instruction therefore adequately conveyed the

necessary mens rea, and the state court’s conclusion that defense counsel met constitutional

standards was thus a reasonable application of Supreme Court precedent.

                                              V.

       As explained herein, Goldy’s state court proceedings did not result in a decision that

was contrary to or an unreasonable application of Supreme Court law. We accordingly

reverse the decision of the district court.




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       CLAY, Circuit Judge, dissenting.             Goldy’s trial counsel rendered ineffective

assistance by failing to object to the trial court’s obviously incorrect ruling that Eric White’s

testimony was admissible to impeach Goldy’s answers on cross-examination. On that basis,

I would affirm the district court and grant Goldy’s habeas petition.

       As an initial matter, the majority applies an incorrect standard of review to this claim.

Because the state court of appeals did not address the specific argument Goldy raised,

AEDPA deference does not apply. “Where the state court has not addressed or resolved

claims based on federal law, most courts, including this one, have held that the decision is

not an adjudication on the merits. Thus, a federal habeas court reviews such unaddressed

claims de novo.” Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005) (quotations and

citation omitted). The district court correctly found that the state court of appeals failed to

address this issue on review. The state court mistakenly believed Goldy’s claim was that his

counsel was ineffective for initially telling jurors that Goldy would testify but subsequently

failing to call Goldy. Goldy’s actual claim was that his counsel did not object to the trial

court’s blatant error in ruling that White testimony was admissible, even though counsel

knew that White’s testimony would seriously undermine the defense’s trial strategy. As

Goldy stated in his appellate brief to the state court of appeals: “Trial counsel did not even

attempt to point out the error in the trial court’s suggestion that the prosecution would be

permitted to open the door to the admission of testimony regarding the evidence which it had


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previously ruled either ‘irrelevant’ or inadmissible on the basis of M.R.E. 404(b), much less

register an objection to it.” (J.A. at 101.)

       The majority acknowledges that “the state court of appeals did not squarely address

the issue of White’s testimony,” but then applies “modified AEDPA deference, focusing on

‘the result reached not the reasoning used.’” Majority Op. at 7 (quoting Hawkins v. Coyle,

547 F.3d 540, 546-47 (6th Cir. 2008)). In Hawkins, this Court found that the state court had

understood the petitioner’s ineffective assistance claim, but had rejected the merits of the

claim “summarily.” 547 F.3d at 547. Because the state court rejected the claim without

providing any reasoning, this Court conducted an independent review of the record and

applicable law, but stated it would uphold the state’s decision as long as the outcome was not

contrary to or an unreasonable application of clearly established law. Id. In contrast, the

state court int he instant case clearly did not understand the substance of Goldy’s claim,

despite the straightforward manner in which Goldy presented it. Because the state court did

not reach any conclusion, reasoned or otherwise, concerning the actual claim raised by

Goldy, this Court should have reviewed the merits of the claim de novo, instead of with

modified deference. Reviewing the claim de novo, I would uphold the district court’s

decision to grant Goldy’s habeas petition with respect to that claim.

       White was expected to testify that he had seen Goldy fire his gun with a barrel

attachment on it approximately two months before he was arrested, and that Goldy had


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No. 08-1646
Goldy v. Tierney, et al.

referred to the attachment at that time as a silencer. Before the start of trial, the trial judge

ruled that White’s testimony was irrelevant as to whether Goldy possessed a silencer on July

23, 2001, specifically stating, “I guess whether he’s been, in the past, in possession of a

silencer hasn’t got anything to do with this particular case here.” (J.A. at 218-19.) The court

also stated that White’s testimony would be more prejudicial than probative. On the second

day of trial, Goldy’s counsel sought clarification on whether Goldy would be opening the

door to White’s testimony if, on cross-examination, the prosecutor asked Goldy if he had

used a silencer when he was with White. Without citing any rules of evidence or case law,

the court responded that “[i]f your client denies firing that gun with that item attached to it,

then [White]’s testimony becomes pertinent.” (J.A. at 183.) Having previously ruled that

there was nothing probative about White’s testimony, the judge was now clearly ruling that

White’s testimony could be admitted to impeach Goldy testimony on cross-examination

regarding a matter that would not have been raised on direct.

       Pursuant to M.R.E. 608(b), “[s]pecific instances of the conduct of a witness, for the

purpose of attacking or supporting the witness’ credibility, other than conviction of crime as

provided in Rule 609, may not be proved by extrinsic evidence.” Thus, under Michigan law,

“the prosecutor may not elicit a denial during the cross-examination of a defense witness and

then use that denial to inject a new issue into the case.” People v. Sutherland, 385 N.W.2d

637, 639 (Mich. Ct. App. 1985). Though Michigan courts have found exceptions to this rule


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Goldy v. Tierney, et al.

where the extrinsic evidence impeaches a defendant on “matters closely bearing on

defendant’s guilt or innocence,” People v. LeBlanc, 640 N.W.2d 246, 254 (Mich. 2002)

(quotations and citation omitted), the trial court in this case had already ruled that White’s

testimony was not an example of such evidence.

       Thus, although White’s testimony was inadmissible to impeach Goldy, impeachment

would have been the only purpose of the testimony, as both the prosecution and the trial court

acknowledged at the time. The majority’s assumptions about what the prosecutor might have

argued, had the trial court given him the chance to argue further, are therefore irrelevant; the

court had already been quite clear that it viewed White’s testimony as irrelevant, other than

for impeachment purposes.

       The judge’s ruling that White’s testimony would be admissible if Goldy took the stand

was therefore a clear error of law. Nevertheless, Goldy’s counsel did not cite Rule 608(b),

and instead argued somewhat incoherently that White’s testimony would be prejudicial. In

view of the basic mistake the trial judge made, it is likely that, had Goldy’s counsel cited

M.R.E. 608(b), the court would have properly excluded White’s testimony. During Goldy’s

evidentiary hearing before the district court, Goldy’s trial counsel testified that he had no

strategic reason for failing to cite Rule 608(b) or to present pertinent case law to argue that

White’s testimony was inadmissible for impeachment purposes. Goldy’s counsel therefore

performed deficiently.


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       A mistake in failing to object to an evidentiary ruling normally might not be such a

monumental error as to affect the outcome of a trial. However, in this case, the failure of

Goldy’s counsel to press the issue caused Goldy prejudice, inasmuch as Goldy’s entire case

appeared to hinge on his testifying.

       To understand the importance of Goldy’s testimony to his defense, it is worth

recounting the evidence introduced at trial. Detective Dave Loe, the arresting officer,

testified that he found the semi-automatic weapon in a closed gun case wrapped in a blanket

in Goldy’s trunk, with a magazine containing ammunition inside the gun. However, a

photograph of the gun in the trunk shows the magazine outside the gun; Detective Loe

explained that he removed the magazine before taking the photograph. Detective Loe

testified that Goldy had told him that he was taking the gun to a shop for repairs. He asked

Goldy why the magazine was inside the gun, and Goldy responded that he had to put it inside

the gun in order to fit the gun in the gun case and close the case. At Goldy’s home, Detective

Loe found several weapons, all legally owned, including a pistol that contained what

Detective Loe called a “barrel modification” attached to it. Goldy had told him the device

was an “extender,” but Detective Loe believed that it was a silencer. (J.A. at 266.)

       Both the prosecution and the defense called firearms experts who offered disputing

testimony about whether Goldy’s extender constituted a silencer, or was capable of

significantly muffling the sound of a gunshot. The defense’s expert questioned Detective


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No. 08-1646
Goldy v. Tierney, et al.

Loe’s version of events, stating that it was unusual for a police officer to take a magazine out

of a gun before photographing the gun as evidence. Another witness for the defense

corroborated Goldy’s statement that he was taking the gun for repairs; the witness testified

that he had been shooting with Goldy three days before Goldy’s arrest, and that Goldy’s gun

had been jamming. The witness testified that he saw Goldy put the gun, unloaded, into a case

and put the case into his trunk.

       Because the evidence against Goldy was so weak–the silencer charge essentially

boiled down to a battle of experts, and the evidence that the gun in Goldy’s trunk was loaded

was based entirely on Detective Loe’s testimony–Goldy’s testimony could have changed the

outcome of the entire trial. During the district court’s evidentiary hearing on Goldy’s habeas

petition, Goldy’s trial counsel testified that Goldy had informed him prior to trial that the gun

in his car was unloaded, and that he never intended the barrel attachment found in his home

to be used as a silencer. Goldy’s trial counsel also stated that Goldy possessed a receipt for

the attachment, which called the attachment a “conversion kit” and not a silencer; he stated

that he would have introduced the receipt as evidence of Goldy’s belief that the extension

was not a silencer, but needed Goldy to testify in order to introduce the receipt into evidence.

(J.A. at 341.) Goldy’s trial counsel acknowledged that without Goldy’s testimony, Detective

Loe’s testimony that Goldy had acknowledged that the magazine was inside the gun was

unrebutted. Further, the district court made a factual finding, having listened to Goldy’s


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Goldy v. Tierney, et al.

testimony during the evidentiary hearing, that Goldy would have been a strong witness and

that the jury could have found him credible. This Court must accept these factual findings

because they are not clearly erroneous. See White v. Mitchell, 431 F.3d 517, 524 (6th Cir.

2005).

         Goldy’s testimony could have led to a different outcome with respect to both charges,

and Goldy’s trial counsel testified that the reason he advised Goldy not to testify was out of

fear of White’s impeachment testimony. Whether or not it was wise to advise Goldy not to

testify, such a difficult decision would have been unnecessary if Goldy’s trial counsel had

responded effectively to the court’s decision to admit White’s testimony. While the court’s

evidentiary ruling was probably one of a number of matters Goldy’s trial counsel had to

juggle simultaneously at trial, his recognition that Goldy’s testimony was crucial should have

led him to be prepared in the event the court ruled as it did–particularly since Goldy’s

counsel was the one who raised the issue with the court in the first place. The decision to

recommend that the defendant testify is one of the most important decisions any defense

counsel has to make, and once Goldy’s trial counsel made the decision that Goldy needed to

testify, he had a duty to ensure that an obviously incorrect legal ruling did not prevent Goldy

from doing so. I therefore respectfully dissent.




                                              17
