NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1209n.06 Nos. 11-2010, 11-2048 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

LANIER MCP HERSO N, P e t i t i o n e r - A p p e l l e e / C r o s s - A pp e ll a nt ,

v. JEFF REY WOODS, R e s p o n d e n t - A p p e l l a n t / C r o s s Appellee. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM THE UNITE D STATE S DISTRICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

Before: G IBBO NS and COOK, Cir cuit Judges; and ROSENTH AL, District Judge . * JULIA SMITH GIBBONS, Circuit J u d g e. This appea l arises out of t he dis trict court’s g rant of habeas corpus to a Michig an prisoner. The petitioner-a ppellee and cross-a

ppellant, L anier McPherson (“Mc Pherson”) , was convicted by a jury in Way ne County Circuit Court of first-deg ree murder, felon in p o s s es s i o n o f a firea rm, and possession of a firea rm during the commission of a felony

. The dist rict court g rante d his habeas corpus peti t i o n p ursuant to 28 U.S.C. § 2254 on his Fifth Amendment claim but denied his petition on all other g rounds. The Warden, J eff rey Woods, appea ls the gra

nt of habeas corpus , and McPher son cross-a ppeals the de nial of his petition on the

rema ining g rounds. Ba sed on the rea sons that follow, we reve rse the district court’s g rant of habeas corpus on McP h er s o n ’s Fifth Amendment claim and aff irm the district court’s denial of habeas corpus on all other g rounds.

The Honora

ble L ee H. Rosenthal, United States District J udg e for the Southern District of * Texas, sitt ing by

desig nation.McPhe rson v. W oods Nos. 11-2010, 11-2048 I. On Aug ust 19, 2000, four men went to a funer al home in Detroit to attend a funer al: L anier McPherson, Cherell King , Delano Gaf fney , and Marc ell Dorsey

. McPherson trave led to the funer al 1 with his g irlfriend, L ucre tia Thompson, his uncle, and Cherell King

. When McPherson arr ived, he had a g un with him. He told Thompson the g un was not his and asked her to take the g un home with her. At some point during the day , Gaf fney ’s car was stolen from the funer al home parking lot. King told office rs that when Gaf fney rea liz ed this, he reme mbere d seeing two men walking on West Gra nd Boule vard whom he suspected of st ea ling his car . Gaf fney asked McPherson to have Thompson br ing Gaf

fney ’s g un back to him, which McPherson did. At that time, D orsey , Cherell King , Gaf fney , and McPherson all g ot into Dorsey ’s J eep and drove down West Gra nd Boule vard. Dorsey ’s J eep approa ched the two men, Abdu l S co t t and Max King , at the corne r of West Gra nd Boule vard and L inwood Avenue

. Two of the passeng ers in Dorsey ’s J eep jumped out of the vehicle. Scott and King wer e shot—Scott five times and King twice. King survived the shooting. Scott did
not. A. Cherell King an d McPherson wer e arr ested for an unrela ted crime approximately three months afte r the shooting, on November 22, 2000. The next day , I nvestig ator Ba rbar a Simon

arr ived at 1300 Be aubien, wher e McPherson was being held, to inter view him about the shooting Throug hout this opinion, to avoid confusion, we will ref er to Cherell King as “Chere ll King ” 1 and to Max King a s “King .” -2-McPhe rson v. W oods Nos. 11-2010, 11-2048 of Scott and King

. McPherson initialed a document informing him of his rig ht to have an attorney prese nt. L ater , at a st at e co u rt W alker hear ing, Simon testified that McPherson “said he didn’t 2 know any thing about it and he didn’t want to talk. And afte r a while, I believe I took him back up

on the ninth floor.” Simon testified that McPherson had said “fuc k this, fuc k y ou, I don’t want to talk.” At that same hear ing, McPherson testified that Simon “kept asking me questions and I said I don’t want to talk, I want a lawy er. She told me the big, bad, lawy er talk doesn’t scar e her, I don’t run any thing in Squad 7.” Simon did not attempt to speak with McPherson ag ain. The next day , Cherell King was interviewe d and g ave a statement implicating McPherson. After lear ning of this statement, on November 24, I nves t i gat or J ames Fisher testified at t rial t hat he we nt to interview McPher son. McPherson testified a t the W alker hear ing tha t he initially

told Fisher that he wanted a lawy er and that he did not want to ta lk to Fisher . Both men a cknowledg e t h at Fisher then g ave McPherson a Constit utional Rights Certifica te of Notification befo re beg inning to take a formal statement, which McP h er s o n re ad aloud and initialed. Fisher took contempora

neous notes, which McPherson also revie wed and i n i t i al ed at the conclusion of the interview. I n his statement, McPherson a sserted tha t he g ave the g un Thompson broug ht back to t h e funeral home to Gaf

fney

. Gaf fney then put the gun i n Cherell King’s hand and said, “smoke both of them.” Disbelieving McPherson’s statement, Fisher set up an appointment for McPherson
to take a poly g raph examination wi t h I n v est iga tor Andre w Sims , a poly g raph examiner with the Detroit Police De partment.

I n Michig an, a W

alker hear ing is an evidentiar y hear ing conducte d to deter mine whether a 2 confe ssion was involuntarily made. See generally People v. W alker , 132 N.W.2d 87 (Mich. 1965). -3-McPhe rson v. W oods Nos. 11-2010, 11-2048 McPherson testified at the W alker hear ing that the next day , November 25, an unnamed investiga tor enter ed his holding are a. McPh erson testified that he asked, “wha t happene d to the l awy er I asked for and I thought I was g etting off.” McPherson rec alled the investiga to r s ay i n g “y eah, y eah” and wa lking of f. On Novembe r 26, Sims gave McPherson a poly g raph examination. Be fore beg inning the examination, McPherson signe d a waiver of his Miranda ri ghts. Sims initially disbelieved McPherson’s account of the events during the poly g raph examination and told him so. At that point, McPherson told Sims that he would tell the truth. Sims testified at trial that during that statement, McPherson said that he “fire d a couple of shots, beca use they wer e rea ching as though they wer e arme d. And [McPherson] shot him and left the scene .” McPherson g ave the following statement to Sims: I , L anier McPherson, was only g oing, try ing to ask the two g uy s had they seen a Chevy that had been stolen from a funer al home? And while doing so, the g uy s beca me hostile, and beg an to rea ch like they had wea pons. So, I fi re d t h e gu n at them, only to scar e them awa y , beca use I didn’ t want to be hurt by them or any wea pons they wer e try ing to pull out. After completing his interview with Sim s , M cPherson was transporte d by I nvestig ator Dwig ht Pearson back to 1300 Be aubien, wher e he was being held. McPherson made the following
statement to I nvestig ator Pearson (re ad at trial from I nvestig ator Pearson’ s notes memorializing the statement): Q [by I nvestig ator Pearson]: T el l m e what happene d over at L inwood and West Gra nd Blvd.

-4-McPhe rson v. W oods Nos. 11-2010, 11-2048 A [by McPherson]: “(H ondo),

. . . Delano Gaf fney , wh i l e o ver at Cole’s Fune ral 3 Home, st ated that there was two g uy s walking down W est Gra nd Blvd. that knew somethin g about this car he had that was stolen. He asked us, did any one have a heate r [gun] on them. That’s when I called my

g irlfriend a

nd told her to br ing my nine milli meter up to the funer al home. I t took her five to te n minutes to g et up to the fune ral home. After the gun was broug ht up to the funer al home, Tick, w hich is [C here ll] King , Hondo, and my self g ot into Dune’ s, which is Marc el Dorsey , J eep Gra nd Cherokee and went riding around looking for both Hondo’s car and two g uy s that wer e walking down West Gra nd Blvd. Whil e riding , we saw th e t wo g uy s walking on West Gra

nd Blvd. So, Dune stopped the J eep at the corne r of L inwood an d W es t Gra

nd Blvd. I g ot out to ask the two g uy s about Hondo’s car , b ec au s e Hondo was upset. When I walked over to the two g uy s, I asked them have they seen a g old Chevy with twenties? They said, no, dog , we haven’ t seen one, and that they didn’t know what I

was talking about. I

asked the m where they

wer e wa lking.” Q [by the prosec utor]: W hile they wer e wa lking? A [by Pearson]: I asked, y es, that’s ri gh t

. [P ear son ag ain narr ating McPherson’s statement]: “I asked them, while they wer e wa lking, did they see one? They said, dog , we told y ou that we didn’t see no car . That’s when one of the g uy s put his hand under his shirt. And t he other g uy put his hands i n his pocket. That’s when I pulled out my nine milli meter, and fired about nine shots at them. After I fired the shots, I g ot back into the Jeep and we left.” Q [by Pearson]: W here is the nine milli meter a t now? A [by McPherson]: “I don’t know. Tick sold it.” Q: Did y ou know who Tick sold the g un to? A: “No.” Q: What color is the J eep G rand Cher okee? A: “B rown, four

door.” Q: What did y ou do with the g un afte r y ou shot the two g uy s?

Statements attributed to McPherson a re pla ced in quotation mar ks. 3 -5-McPhe rson v. W oods Nos. 11-2010, 11-2048 A: “I g ave it to Tick, a

nd they said they would g et rid of it.” Q: Who was driving the J eep? A: “Dune .” Q: What color was the nine milli meter? A: “A stainless stee l.” B. McPherson soug ht to suppress his statements on the g round s t h at (1) the police failed to scrupulously honor McPherson’s invocation of his rig ht to counsel; (2) the police contin u ed to question McPherson afte r he invoked his rig ht to rema in silent; and (3) McPherson’s statement was involuntary and taken in a coerci v e environment. After the W alker hear ing refe rre d to ear lier, at which Simon, Fisher , Sims , Pearson, and McPherson all testified, the trial court denied the motion to suppress, re asoning : But the bottom line here is the period o f d et en t i o n and the totality of the circ umstances a

nd whether I believe that it wa s a violation there. And a s I look at ever y one’s testim ony and apply the Slocum and Mosley and Cip r i ano and W alker and Twomey and t h e federa l case s that I alluded to, and the standards of Cipriano as I g o one-by -one, w hile I have some conce rns, the motion to suppress I ’m g oing to deny

. McPherson’s first trial ended in a mistrial as a result of a hung jury

. On April 24, 2002, afte r a second trial, the jury returne d a verdic t of g uilty on all three counts: first deg ree murder, in violation of Mich. Comp. L aws § 750.316(1)( a); felon in possession of a firea rm, in violation of Mich. Comp. L aws § 750.22 4f; and possession of a firea rm during the commission of a felony , in violation of Mich. Comp. L aws § 750.227b. On May 9, 2002, McPherson was sentenc ed to thirty y ear s to life

-6-McPhe rson v. W oods Nos. 11-2010, 11-2048

on the first deg re e m u rd er ch arge , thirty -eig ht months to five y ear s on the felon in possession char g e, and f

ive y ear s on the felony

firea rm cha rg e. C. McPherson then appea led his convictions and sentenc es to the Michig an Court of Appea ls, alleg ing that his rig hts under the United States and Michig an Constit utions wer e violated by (1) the introduction of a dece ased co-de fenda nt’s custodial statement incriminating McPherson; (2) the admission of McPherson’s c onfession, which w as involuntary and take n afte r the police f ailed to honor his reque st for counsel; (3) the trial court’s limit ation of defe nse counsel’s cross-e x amination of the prosec u t i o n ’s ey ewitness, Montez Meadow s; (4) the poly g raph examiner’s unresponsive testimony that innocent people never confe ss and counsel’s failure to object to that comment; and (5) the prosec utor’s improper comment t h at a witness who implicated McPherson was “found dumped in Hamtra mck with a bullet in his head.” On J uly 20, 2004, the M ichig an C ourt of Appeals aff irmed McPherson’s convictions and
sentenc es. As to McPherson’s fir st claim, the court a cknowledg ed that Crawf ord v. W ashington , 541 U.S. 36 (2004), prec ludes the admission of testimonial out-o f- court statements wher e the witness is unavailable and the defe ndant did not have “a prior opportunity for cross-e x amination” of the decla

rant. Howeve r, it held that evidenc e of t h e d ec ea s ed Cherell King ’s statement was introduced not for the truth of the matter asser ted, but rathe r to show “that defe ndant was awa re of [C here ll] King ’s statement in light of defe ndant’s testimony that King was the shooter and as part

o f th e p r o s e cutor’s theory that defe ndant chang ed his story sever al times and could not be believed.” There fore , the use of Cherell King ’s testimonial statement to police that McPherson was the shooter -7-McPhe rson v. W oods Nos. 11-2010, 11-2048 did not violate McPherson’s Six th Amendment rig ht to confr ont the witnesses ag ainst him, and the trial court’ s admission of that statement did not constitute rever sible err or. As to McPherson’s second claim tha t h is c o n f e s s ion was improperly admitted, the court held that McPherson’s Fi ft h Am en dment rig hts wer e prese rved beca use (1) his statements wer e voluntarily made and (2) he failed to establish that his Fifth Am en d m en t ri g ht to counsel was violated. The court of appea ls cre dited the trial court’s cre dibilit y finding s, noting that they wer e resolved a g ainst McPherson. As to McPherson’s third claim that the trial court improperly lim i t ed d efe nse counsel’s

cross-e x amination of Montez Meadow s, the court hel d t h at d efe nse counsel did not proper ly prese rve the issue for appea l be cause he did not spe cifica lly object at tria l on this ground, nor did he articula te what evidenc e he was unable to prese nt beca use of the limit ation. Reviewing for plain

err or, t he court held that McPherson f ailed to show that he w as “de nied a rea sonable opportunity to test the truthfulness of Mea dows’s testimony on any materia l issue.” As to McPherson’s fourth claim that the poly g raph ex am i n er , Sims , g ave unresponsive

t es t i m o n y that innocent people never confe ss, the court held that McPherson waived his rig h t t o revie w on t h at claim beca use McPherson soug ht opinion testimony from Sims about interview techniques. As a result, the court held that McPherson “invited” the err or, failed to object, and there by waived r eview. As t o McPherson’s fifth claim, that the prosec utor eng ag ed in misconduct throug h his

co mment that a witness who implicated McPherson was “found dumped in Hamtra mck wi t h a bullet in his head,” the court held that any err or by the prosec utor was cure d by the trial court’s jury -8-McPhe rson v. W oods Nos. 11-2010, 11-2048 instruction that “[t] he lawy ers’ statements or arg uments, they ar e n o t ev i dence .” There fore , this claim was also denied. McPherson then soug ht leave to appea l to the Michig an Supreme Court, but was de nied. D. McPherson filed a habeas petition in the Easter n District of Michig an. He later filed a motion to s tay

the proc eeding s to allow him to return to state court to ex haust additional claims. On Fe bruar

y 1, 2007, the district c ourt enter ed an order g ranting McPherson’s stay , provided that he prese nt his claims in state court within six ty day s of the date of entry of the o rd er an d that he
return to fede ral court to lift the stay within six ty d ay s o f ex h austing his state court reme dies. McPherson prese nted his claims in state court by filing a motion for relief from judgme nt on Aug ust 27, 2007—near ly fi v e m onths afte r the expiration of the deadline set by the district court. This motion was denied by the s tate trial court. T h e Michig an C ourt of Appeals denied McPherson’s “dela y ed applica

tion for leave to appea l.” On September 28, 2009, the Michig an Supreme Court ref used to g rant leave to appea l the order of the Michig an Court of Appea ls, rende ring McPherson’s claims exhausted. On November 30, 2009, McPherson, throug h his attorney , timely filed a motion seeking to lift the stay of his habeas corpus proce eding s in district court. That motion was g rante d by the district court on F ebrua ry 5, 2010. McPherson’s amende d petition soug ht relief on the basis of the following alleg ed violations of hi s constitutional rig hts: (1) the i ntroduction of a dece ased co-def endant’ s custodial statement incriminating McPherson; (2) the trial court’s limit ation of defe nse counsel’s cross-e x amination of M o n t ez M eadow s; (3) prosec utorial misconduct; (4) the poly g raph examiner’s unresponsive -9-McPhe rson v. W oods Nos. 11-2010, 11-2048 testimony that innocent people never confe ss; (5) the admission of McPherson’s confe ssion, which

was involuntary and taken afte r the police failed to honor his reque st for counsel; and (6) ineffe ctive assistance of counse l. On J uly 25, 2011, the district court enter ed an order g ranting McPherson’s petition pursuant to 28 U.S.C. § 2254, on the g round that McPherson’s Fifth Amendment rig hts wer e violated when the police continued to quest i o n h i m af t er he invoked his rig ht to counsel. As a result of that questioning, M cP h er son made statements to Sims and Pearson that he shot the victims in selfdefe nse. At trial, he denied shooting the victims. Be cause of the improper admi s s i on of McPherson’s prior statements, the district court held t h at t h e state courts’ decisions holding that McPherson’s r ights we re not violated w ere unrea sonable. I n g ranting the petition, the district court rea soned that McPherson “pre sent ed cl ea r and convincing evidenc e to rebut any express or implicit finding of fac t that Petitioner did not make an unequivoca l reque st for counsel.” The court noted that the rec ord did not support the fac tual finding that McPherson never invoked his righ t t o co u n s el. Neither Simon nor Fisher denied that McPherson reque sted to speak with an attorney , and McPherson testified at the W alker hear ing that he reque sted to speak to an attorney and was denied that rig ht. Finally , the district court interpre ted the trial court’s comments to indicate an “implicit” finding that McPherson had invoked his r ight to counsel, citing to one comment in par ticular: Now, in a homicide case , I would think that they ’d g o to g rea t leng ths to ensure that he’s repr esente d by Counsel, that honor any reque sts that he made, if he in fac t made them.

-10-McPhe rson v. W oods Nos. 11-2010, 11-2048 II. I n habeas corpus proce eding s, we revie w a district court’s leg al conclusions de novo . Montgomery v. Bobby , 654 F.3d 668, 676 (6th Cir. 2011) ( en banc ). When, as here , the district court did not conduct an evident i ar y hear ing and relied solely upon the state court

rec ord, we revie w the district c ourt’s fac tual finding s de novo . Matthews v. Ishee , 486 F.3d 883, 889 (6th Cir. 2007). Under AEDPA, [a] n application for a writ of habea s corpus on behalf of a person in custody pursuant to the judgme nt of a State court shall not be g rante d with respe ct to any claim that was adj u d i ca t ed on the merits in State court proce eding s unless the adjudication of the claim— (1) resulted in a decision that was contra ry to, or involved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fa cts in light of the e vidence prese nted in the State cour t proce eding

. 28 U.S.C. § 2254(d). Pursuant to the “contr ary to” clause of § 2254(d)( 1), “a fede ral habea s court may g rant the writ if the state court arr ives at a conclusion opposite t o t h at re ac h ed by [t he Supreme Court] on a question of law or if the state court decide s a case differ ently than [t he Supreme Court] has on a set of materia lly indisti ng uishable fac ts.” W illiams v. Taylor , 529 U.S. 362, 412–13 (2000). Under the “unre asonable application” cl ause of § 2254(d)( 1), a fede ral habeas court may g rant the writ if the state court’s application of clea rly established fede ral law to the facts of t he prisoner’s case was objectively unrea sonable in light of the evidence prese nted in the state court proce eding s. Id. at 409–11. I mportantly , “an unreasonable -11-McPhe rson v. W oods Nos. 11-2010, 11-2048 application of fede ral law is diffe re n t fr o m an incorrect application of fede ral law.” Id. at 410. Finally , under the “unre asonable deter mination” clause of § 2254(d)( 2), fede ral courts must bear in mind that “a state-c our t f actua l deter

mination is not unrea sonable mere ly beca use the fede ral habea s court would have rea ched a differ ent conclusion i n the first instance.” W ood v. Allen , 558 U.S. 290, 130 S. C t. 841, 849 (2010). Section 2254(d), as amende d by AEDPA, is a “purpose fully demanding standard.” Montgomery , 654 F.3d at 676 (citing Harrington v. Richter , 131 S. Ct. 770, 786 (2011))

. To obtain relief

, a habeas petitioner must “ show that the state court’s ruling on the claim being prese nted in fede ral court was so lacking i n j u s t ification that there was an err or well understood and compre hended in exis ting law bey ond any possibili ty for fairminded disag ree ment.” Richter , 131 S. Ct. at 786–87. This “hig hly defe rential standard

. . . demands that state-c ourt decisions be g iven the benef it of the doubt.” Cullen v. Pinholster , 131 S. Ct. 1388, 1398 (2011) ( quoting W oodford v. Visciotti , 537 U.S. 19, 24 (2002) ( per curiam )). Under the doctrine of Harrington v. Richter , summary denials of claims are g ener ally considere d to be decide d on the merits and enjoy AEDPA defe renc e. “When a fede ral claim has bee n prese nted to a st ate court and the state court ha s denied re lief, it may be pre sumed that the state court adjudicate d the claim on the merits in the absenc e o f an y i n d i ca t ion or state-law proce dural principles to the contra ry .” Richter , 131 S. Ct. at 784–85; see also W erth v. Bell , 692 F.3d 486 , 4 9 4 (6 t h C ir. 2012) (holding t hat, i n the absence of a reason to think

some other explanation is more likely , a summary denial of revie w from Michig an’s appellate courts is a de cision on the merits and is entitled to AEDPA def ere nce)

. -12-McPhe rson v. W oods Nos. 11-2010, 11-2048 As to fac tual finding s, a habeas petitioner bear s the burden of rebutting , by clea r and convincin g evidenc e, the presumption that the s tate court’s fac tual finding s are corr ect. 28 U.S.C. § 2254(e) (1). Only fac tual deter minations that are “‘obje ctively unrea sonable in light

o f t h e evidenc e prese nted in the state-c ourt proce eding ’” will be overturne d. McKinney v. Ludwi ck , 649 F.3d 484, 488 (6th Cir. 2011) (quoting Miller-El v. Cockrell , 537 U.S. 322, 340 (2003))

. A. The Warden arg ues that McPherson’s petition should h ave been dismiss ed by the district court as untimely beca use he failed to co m p l y wi t h t he district court’s order of Fe bruar y 1, 2007 in which McPherson’s timely -filed petitio n wa s s t ay ed to allow him to exhaust his claims in state court. The district court require d that McPherson “p resent his claims in state court within six ty day s from the date of this Orde r [or] the Court will dismiss the petition f

or writ of habea s corpus without pr ejudice.” McPherson g ives a list of rea sons why he failed to comply with the Februa ry 1 order

. The W arde n notes in h i s opening brief that McPherson filed his motion for relief fr o m j u d g ment “over six months” afte r the date g iven by t h e d i s t ri ct court. Other than that brief mention, this arg ument is exclusively develope d in the Warden’s reply brief. I n light of this perf unctory trea tment of this issue, we conclude that the Warden has waived t h e i s s u e of McPherson’s timeliness in filing his petition. See United States v. Johnson , 440 F.3d 832, 845–46 (6th Cir. 2006) (noting that “‘a n appellant abandons all issues not raised and arg ued in its initial brief o n ap p ea l ’” (quoting United States v. Still , 102 F.3d 118, 122 n. 7 (5th Cir. 1996)) and that “‘it is a settled appellate -13-McPhe rson v. W oods Nos. 11-2010, 11-2048 rule that issues adver

ted to in a perf

unctory manner , unacc ompani ed by some eff ort at develope d arg umentation, ar e d ee med waived.’ ” (quoting United States v. Elder , 90 F.3d 1110, 1118 (6th Cir. 1996))). B. I n its decision g ranting habeas relief , the district court noted that the trial court never made a n expli cit fac tual finding that McPherson did not invoke his r ight to c ounsel. I t he ld that the rec ord befor e the state court “supports a fac tual finding ” that McPherson did invoke his rig ht with Simon and Fisher and that they failed to honor this invocation, in clea r violation of Edwards v. Arizona , 451 U.S. 477 (1981). The district court conducte d the wrong analy sis. As noted above, fac tual finding s by the state court enjoy a presumption of corr ectne ss, which can only be overc ome by clea r and convincing evidenc e to the contra ry . Miller-El , 53 7 U. S

. at 340. This presumption is not exclusive to a state court’s expli cit finding s, but also applies to those implicit finding s of fac t that are inhere nt in its resolution of conflicting evidence

. Marshall v. Lonberger , 459 U.S. 422, 433 (1982); McQ ueen v. Scroggy , 99 F.3d 1302, 1310 (6th Cir. 1996) (noting that impli cit finding s are also presumed to be corr ect “bec ause of the trial court’s ability to adjudg e the witnesse s’ demea nor and c redibility ”). McPherson arg ues that the polic e co n t i n ued to interrog ate him afte r he invoked his rig ht to counsel. During the course of a two-da y ev i d en t i ary hear ing befor e the state trial court, none of the investiga tors wer e asked, nor did the y testify , whether such an invocation

-14-McPhe rson v. W oods Nos. 11-2010, 11-2048

ever took place

. Under Edwards , the pol ice may not further

interrog ate a custodial suspect who has invoked his rig ht to counsel unless the suspect initiates additional communication. 451 U.S. at 484. Howeve r, “[i] f an acc used makes a statement conce rning the rig ht to counsel ‘that is ambig uous or equivoca l’ or makes no statement, the police are not require d to end the interrog ation, . . . or ask que stions to clarify whether the ac cused w ants to invoke his or her Miranda rig hts.” Berghuis v. Thompkins , 130 S.Ct

. 2250, 2259–60 (2010) (quoting Davis v. United S t a t es , 5 1 2 U.S. 452, 459 (1994))

. There fore , the trial court’s analy sis in deny ing McPherson’s motion to suppress nece ssarily require d a cre dibilit y deter mination—whether McPherson’s testimony that he invoked his rig ht to counsel could be believed. The trial court addre ssed this fact e x pressly in announcing its ruling: Some of the inconsistencies in Mr. McPherson’s statements, that troubles me. He took the stand to testify and to tell his version and I listened very car efully to w hat he had to say . Some of the things he said, I think his response s wer e very candid with the Court and I cre dit him with that. Some of the things that wer e said don’t make sense a nd that was wha t my line of questioning to Mr

. McPherson re volved ar ound. The trial court further noted, “I f I ’m to believe t h e p o l i ce version, he never reque sted an attorney or a phone call.” The district cour

t is corr ect that the s tate trial court never articulated its findi ng that M cP herson did not invoke his rig ht to counsel, and the majority of the state trial court’s
statem ents addre ssed its finding that the confe ssions wer e voluntarily made. Howeve r, a contra ry fac tual finding would have require d suppression of McPherson’s statement and we,

as a revie wing court, are permitted to reason ba ckwa rd from a lega l conclusion t o establish

-15-McPhe rson v. W oods Nos. 11-2010, 11-2048 the fac tual finding s that sustain it. See Lonberger , 459 U.S. at 434 (“The trial court’s ruling allowing the rec ord of conviction to be admitted into evidenc e . . . is tantamount to a ref usal
to believe the testimony of responde nt.”). The district court’s conclusion that the trial court “implicitly found that Petitioner had invoked his rig ht to counsel” is plainly fore closed by the trial court’ s denial of Mc Pherson’s motion to suppress. Moreove r, any ambig uity cre ated in the state trial court was resolved in the Michig an Court of Appea ls decision, which held that t h e trial court’s ruling “turne d principally on

cre dibilit y issues, which wer e resolved ag ainst defe ndant.” The Michig an Court of Appea ls

we n t o n to hold that McPherson “has not established that his Fifth Amendment rig ht t o counsel was violated.” The United States Supreme Court has held t h at a state appellate court’s deter

mination of the trial court’s fac tual finding s i s , itself, entitled to defe renc e. Parker v. Dugger , 4 9 8 U.S. 308, 320 (1991) (“[W ]e conclude that a determination of what the trial judge found is an issue of historical fac t.”). I t was not unrea sonable for the Michig an Court of Appea ls to defer to the credibility deter mination of t he trial judge

. The law of t he Supreme Court, the Six th Circuit, and the state of Michig an all call for defe re n ce t o t rial judge s on matters of witness cre dibilit y under these circ umstances. See Felkne r v. Jack son , 131 S. Ct. 1305, 1307 (2011) (“The trial court’s [credibility ] deter mination is entitled to g rea t d ef er en ce , and must be sustained unless it is clea rly err oneous.”) (interna l citation and quotation marks omitted); Fields v. B a g l ey , 275 F.3d 478, 485 n.5 (6th Cir. 2001) (“When consider i n g a m o tion to suppress, the trial court is the primary judge of the cre dibilit y of

-16-McPhe rson v. W oods Nos. 11-2010, 11-2048 witnesses and the weig ht of the evidenc e. I f the trial court’s finding s are supported by competent and cre dible evidenc e, then the appellate court must acc ept them.”) (interna l ci t at i on omitted); People v. Sexton , 609 N.W.2d 822, 825 (Mich. 2000) (“[I ]f resolution o f

a disputed fac tual question turns on the cre dibilit y of witnesses or the weig ht of the evidenc e,

we will defe r to the trial court, which had a superior opportunity to evalua te these matters.”)

. Although the district court asser ted that the Michig an courts had eng ag ed in “an

unrea sonable deter

mination of the fac ts,” it did not cite the requis ite clea r and convincing evidenc e contrary to that relied on by the Michig an cour ts. Rather, it conclusively asser ted that “[t] he rec ord supports a fac tual finding that Petitioner did invoke his rig ht with [O] ffice r Simon and later

with Fisher,” noting only that McPherson testified that he had “re peate dly reque sted” to speak with an attorney and that Simon and Fisher never denied that McPherson asked to sp ea k wi t h an attorney

. I n essenc e, the district court disag ree d with the state trial court’s c redibility

assessments. But thi s is exactly the t y pe of re- weig hing of evidenc e that is fore closed under AEDPA, and we must there fore reve rse the district court’s g rant of habeas on this ground. C. McPherson arg ues in his cross-a ppeal that he is e ntitled to habeas relief beca use the prosec utor introduced a statement by Cherell Ki n g, in which Cherell King implicated M cP h erson in the shooting. McPherson arg ues that the Michig an Court of Appea l s

-17-McPhe rson v. W oods Nos. 11-2010, 11-2048

unrea sonably applied the Six th Amendment, as explained in Crawf or d v. W ashington , 541 U.S. 36 (2004). The statement wa s “introduce d” as f ollows: Q: And isn’t that what, actually , happene d here , that Mr. [ Cherell] King has ratted, using the term fr om term of ar t, ratted y ou out? A: No, sir. Q: And y ou had known that befor e y ou g ave y our statement to I nvest iga tor Fisher on November twenty -four th at 3:30 i n the afte rnoon on that day , y ou alre ady knew that Mr. [Chere ll] King had ra tted y ou out, isn’t that true? A: He e nded up telling me that he sa id that I did it. Contrary to McPherson’s asser tion, introduction of this evidenc e does not constitute

an unrea sonable application of Crawf ord

. Crawf

ord prec ludes the use of testimonial out-ofcourt statements unless the witness is unavailable and the defe ndant had a prior opportunity for c ross-examination. 541 U .S. a t 68. Although admission of testimonial he arsa y violates the C onfrontation C lause, testim onial statements m ay be admitted “for purposes other than establishing the truth of the matter asser ted.” Id. at 59 n.9 (interna l c itation omitted). Her e, t h e prosec utor did not introduce the statement itself, but asked only about McPherso n ’s

awa rene ss that Cherell King had made a st atement impl icating him in order to establish his mindset at the time of hi s own s tatement. This purpose wa s confirme d when the tr ial court limit ed the prosec utor’s further questioning to “wha t I nvestig ator Fisher told the Def endant,

as to why he made the statement that he made.” As noted by the Michig an Court of Appea ls, “the prosec utor’s question was desig ned to impeach defe ndant’s statement th a t [C h e r e ll] King

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was the shooter.” Be cause the Michig an Court of Appea ls did not unrea sonably apply fede ral law, we aff

irm the district court’s de nial of habeas on this ground. D.

M cP herson next arg ues that the Michig an Court of Appea ls unrea sonably appli ed fede ral law by aff

irming the trial court’s limit ation o n McPherson’s counsel’s crossexamination of Mont ez Meadow s. The Michigan Court of Appe als corr ectly rea soned t hat McPherson did not proper ly prese rve his claim beca use he did not demonstrate “wha t rele vant evidenc e he was unable to prese nt or what issues he was unable to adequately explore beca use of the trial c ourt’s limitation.” Montez Meadow s, an ey ewitness , testified at McPherson’s second trial that she
encounte red Abdul Scott and Max King near wher e the shooting occur red. She testified that McPherson a

nd another

man g ot out of the car

and shot at Scott and King . Howeve r, whe n Meadow s had testified at McPherson’s first trial, she said that she did not know and could not identify the two m en who g ot out of the c ar. To e x plain the contra diction in her testimony , Meadow s t est ified that she had been scar ed at the first trial but decide d that it had been “wr ong ” not to tell all that she knew. The trial court pu t re as o nable limit s on Meadow s’s cross-e x amination, in light of defe nse counsel’s repe titive questioning and Meadow s’s incre asing distress. The trial court noted that Meadow s had becom e distraug ht on the witness stand, causing the trial court to

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rec ess the proce eding s ear ly for lunch. Be fore taking its brea k, t h e co u rt instructed the witness that she must “re g ain [her] composure” and notified the lawy ers that they would have
ten more minutes of cross-e x amination, ten minutes on redire ct, and five minutes of re- cross. McPherson’s tri al co u nsel, Corbett O’Mea ra, indicated that the time constraints “will be substantially limit ing the interrog ation that [he] intended, and [] would otherwise pursue.” Howeve r, on the rec ord, the trial court noted that O’Mea ra had spent “fifty minutes” exploring why Meadow s did not previously tell i n v es t i gat o rs that she knew who had committed the shooting. The trial court noted that “this witness is distraug ht, this witness is close to being , in this C ourt’s estimation, close to a br eakdow n.” The Confrontation Clause does not provide an unbounded rig ht to cross-e x amination. As n o t ed by the Supreme Court, it g uara ntees only “an opportunity for eff ective crossexamination, not cross-e x amination that is eff ective in whateve r way , and to whateve r extent, the defe nse might wish.” Delaware v. Fenstere r , 474 U.S. 15, 20 (1985). The proper analy sis in determining whether counsel was g rante d an opportunity for eff ective c ross-examination asks whether the jury had enoug h informa t i on to assess the defe nse theory , in spite of any court-imposed limit ations. Dorsey v. Parke , 872 F.2d 163, 16 7 (6 t h C ir. 1989). Her e, McPherson was g iven adequate op p o r tu nity to explore Meadow s’s conflicting statements, her

cre dibilit y , and her observa t i o ns on the day of the shooting. I n fac t, McPherson does not adequately articula te how his r ights have been aff ecte d in his brief to this court, noting only that he wa s p rec luded “fr om bring ing to the attention of the jury defe cts in [Meadows’s]

-20-McPhe rson v. W oods Nos. 11-2010, 11-2048 char acte r aff

ecting truthfulness and of her backg round nece s s a r y f o r the jury to proper ly assess her testimony in light of the defe nse theory .” L acking any indication that the Michig an Court of Appea ls unrea sonably applied fede ral law on this issue, we aff irm the district court’s denial of habeas on this ground. E. McPherson also asser

ts that he is entitled to habeas relief on the basis of prosec utorial misconduct. He arg ues that the prose cutor’s state ment, during closing arg ument, that “par t of the information the police has has been buried with the man who g ot shot in the back of the head and g ot dumped in Hamtra mck” was n ot supported by evidenc e, that the prosec utor improperly used Cherell King ’s out-of-c ourt statement, vouched for Meadow s’s cre dibilit y , and tried to convince the jury that McPh erson was a dang erous person of bad char acte r. Howeve r, on habeas revie w, McPherson must d emons trate that the prosec utor’s rema rks rende red the conviction resulting from th e trial a denial of due proce ss. Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974). This he ha s not done. I n analy zing whether a prosec utor’s comments cre ated a fundame n tally unfair trial,

we look to “(1) whether the evid en ce ag ainst the defe ndant was strong [; ] (2) whether the conduct of the prosec ution tended to mislead the jury or prejudice the defe ndant; (3) whether the conduct or remarks were isolated or ex tensive; and (4) wheth er the remarks were made delibera tely or accidenta lly .” Slagle v. Bagley , 457 F.3d 501, 516 (6th Cir. 2 0 0 6 ) (i n t ernal citation omitted). Although the prosec utor made some reg rettable comments during the

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course of the trial, McPherson has not shown that the comments denied him a fair trial in light of the streng th of the evidenc e ag ainst him and the isolated nature of the comments. See id. Fur ther, the trial court’s jury instruction that “[t] he lawy ers’ statements or arg uments, they are not evidenc e” was sufficie nt to rende r any err or harml es s , and the district court proper ly denied habeas on this issue. See United States v. Crosgrove , 637 F.3d 646, 664 (6th Cir. 2011). F . McPherson claims that he was denied a fair trial by Sims ’s “unre sponsive” testimony

on cross-e x amination. The testimony at issue was a s follows: A:

. . . I ’ve interviewe d over 2,500 people. I f they have not done any thing, no matter wha t y ou prese nt to them, they ’re g oing to tell y ou, I didn’t do it, I ’m telling y ou I didn’t do it, I ’m telling the truth. Only a person th at d i d , may have committed the crime, or committed the crime is g oing to say that I did it, but it was excused or log ic or philosophical re ason why

. Q: Only a person who’s committed the crime is g oing to sa y they committed the ac t, but they

have a n excuse? A: Yes. The Michigan C o u rt of Appeals denied relief on this claim on the basis of t he invi ted error doctrine, observing that McPherson ’s t ri al counsel assumed the pos sibili ty that Sims could pr o v id e an opinion harmful to his client when he questioned Sims about interview techniques. As noted by the district court, in light of the fac t that Sims ’s rema rk was made in response to

a question from defe nse counsel and was limit ed, McPherson has failed to de monstrate that

-22-McPhe rson v. W oods Nos. 11-2010, 11-2048 he was deprive d of a fair trial by the statement and he is not entitled to habeas relief on this g round. G. McPherson alleg es that he rec eived ineffe ctive assistance of trial counsel by counsel’s failure to articula te his objection to the limit ations place d on cross-e x amination of Meadow s, by his open-e nded questioning that permitted Sims ’s unresponsive testimony , and by failing to object to the prosec utor’s statements noted a bove. For McPherson to be entitled to relief on his ineffe cti v e assistance claim, he would have to demonstrate both that his counsel provided defic ient perf ormanc e and that he suffe red resulting prejudice

. S t r i ck l a nd v. W ashington , 466 U.S. 668, 687 (1984). Def icient perf ormanc e occur s if “counse l’s repr esenta tion fell b el o w an objective standard of

rea sonabl en es s . ” Id. at 688. We apply a “strong presumption” t hat counsel’s perf ormanc e

was rea sonable, id. at 689, an d a p et i tioner seeking to prove defic ient perf ormanc e must demonstrate that counsel’s err ors wer e so eg reg ious t h at he “wa s not functioning as the ‘counse l’ g uara

nteed the def

en d an t b y t he Six th Amendment,” id. at 687. I n order to demonstrate prejudice , a petiti oner must prese nt “a rea sonable probability that, but for

cou n s el ’s unprofe ssional err ors, the result of the proce eding would have been differ ent. A

rea sonable proba

bility is a probability sufficie nt to unde rmine conf idence in the outcome.” Id. at 694. A “conc eivable eff ect on the outcome of the proce eding ” is insuf fi cient. Id. at 693. Rather, a petition must show err ors “so serious as to deprive the defe ndant of a fair

-23-McPhe rson v. W oods Nos. 11-2010, 11-2048 trial.” Id. at 687. When ineffe ctive assistance claims are revie wed under AEDPA defe renc e, and these two exacting sta ndards apply simult aneously , revie w i s “doubly ” def ere ntial, and the appropr iate question for revie w is “whe ther there is any rea sonable arg ument that counsel
sat i s fi ed Strickland ’s defe rential standard.” Richter , 131 S. Ct. at 788 (citing Knowles v. Mirzayance , 556 U.S. 111, 123 (2009)). Apply ing that “doubly defe rential” standard to McPherson’s case , McPherson cannot show that the Michig an Supreme Court had “ no rea sonable basis” for its de termination that Strickland ’s defe rential standard could not be met. See Richter , 131 S. Ct. at 784. McPherson arg ues t hat t rial counsel provided ineffec tive assistance for f ai l i n g t o proper ly object to the limit ation of cross-e x am i n at ion of Meadow s and for questioning Sims in a manner that allowed him to g ive unresponsive testimony

. McPherson has not articula ted in this court how he was prejudice d by the trial court’s limit ation on his c ross-examination of Meadow s. We have alrea dy held t hat M cPherson wa s not prejudiced by Sims ’s unre sponsive testimony or by the prosec utor’s statements. Wit hout this showing of prejudice , McPherson’s ineffe ctive assistance claims fail. III. Fo r t he foreg oing rea sons, we rever se t he dis trict court’s gr ant of habeas corp u s o n McPherson’s Fifth Amendment g round and aff irm the district court’s denial of habeas corpus on all other g rounds.

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