NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1187n.06 No. 11-4036 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J AMES M. CONL EY, Petitioner-Appellant,

v. W A R D E N C H ILLIC O T H E C O R R E C T IO N A L I NSTI TUTI ON, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

BEF ORE: GI L MAN, GI BB ONS, and ROGERS, Circuit J udg es. ROGERS, Ci rcuit Judge. Petitioner J ames M. Conley seeks ha beas r elief f

rom his conviction i n Ohio state cour t for
ag g rava ted burg lary

. Conley challeng es a witness’s in-court identification of him and contends that his prosec utorial-misconduct claims are not proce durally defa ulted. The Oh i o C ourt of Appea ls conclude d that the witness’s in-c ourt identification wa s reliable, a nd held that beca

use Conley

did not obje ct to the alleg ed misconduct at trial, he waived all but pla in e rror revie w. Be cause Conley has fa i l ed t o est ablish that the pretria l proce dure was unduly sug g estive and that the witness’s identification was not reliable , his challeng e to the identification is without merit. Conley has also failed to establish that his prosec utorial-misconduct claims are not proce durally defa ulted, an dNo. 11-4036

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cannot show cause and prejudice to excuse the default, or t hat t he failure to consider these claims would produce a miscar

riag e of justice. This case arises out of a late-nig ht home invasion. Tom and Sandra Cooper wer e awa kened by their barking dog in the ear l y hours of Dec ember 19, 2007, and discovere d an intruder in their bathroom. Although they tried to trap the intruder and summon the police, he foug ht his way out and attempted to flee . Sandra Cooper g rabbe d hold of t he int ruder and hit him repe atedly on the hea d and shoulders with a flashlig ht be fore the intruder eventua lly ran from the house. The police wer e unable to appre hend the suspect. The next day , Mr. Cooper identified Conley from a photo lineup; Mrs. Cooper d i d n ot identify any one from that lineup, telling investigators that she had only been able to see the suspect in profile dur ing the incident. Conley , who had previously worke d for Mr. Cooper, wa s arr ested a

nd char g ed with ag g rava ted burg lary

. At trial, both Mr. and Mrs. Cooper identified Conley as the burg lar. Although Mrs. Cooper did not identify Conley at the initial photo lineup, she saw and rec og nized him at a pretria l hear ing. She testified at t ri al that she had looked into a courtroom and observe d Conley standing among a g roup of twenty people; upon seeing his fac e in profile, she immediatel y re co gn ized him as the intruder. The jury found Conley g uilty , and the trial court sentenc ed him to se ven y ear s in pr ison. 1 Conley appea led to the Ohio Court of Appea ls, raising seven assig nments of err or. Among other things, he challeng ed the identifications of Mr. and Mrs. Cooper, alleg ed prosec ut o ri al

T he pre ced ing fa ct s ar e summ ar ized in the Ohio Cour t of Appea ls ’s dec is ion , Sta te v. Conl ey , No. 1 08CA78 4, 20 09 Ohi o 18 48, ¶3- ¶5 (Ohi o Ct . App. Apr. 13, 2009 ). - 2 -No. 11-4036

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misconduct, and claimed that he had rec eived ineffe ctive assistance of trial counsel—thoug h not for his trial counsel’s failure to object to the al l eged prosec utorial misconduct. The court reje cted all of Conley ’s ar g uments and af firmed the judg ment. On the identification issue, the Ohio Court of Appea ls noted that Conley was not challeng ing the photo lineup as unduly sug g estive. State v. Conley , 2009 Ohio 1848, ¶8 (Ohio Ct. App. Apr. 13, 2009). The court declined to second- g uess the jury ’s deter mination as to the cre dibilit y of the i dentifica tions, noting that wher e a pretria l identification proce dure is not unduly sug g esti v e, reliability g oes to the weig ht of t h e ev i d en ce , n o t its admissibili ty

. Id. at ¶9. The court reje cted Conley ’s argu ment that the identification was unreliable as a matter of law. On the prosec utorial misconduct issue, the court held that beca use Conley did not raise any objection at trial, he waived all but plain err or, which the court did not find. Id. at ¶27. The court stated “[a]ddit ionally ” that it

was not persua ded that the prosec utor’s comments constituted misconduct, beca use the prosec utor did not improperly vou c h f o r th e c r e d ib il it

y of the identify ing witnesses—Mr. and Mrs. Cooper—and did not sugg est that Conley was a “liar” in his closing ar g ument. Id. at ¶29-30. Conley petiti o n ed fo r a writ of habea s corpus in the district court. The mag istrate judge recommended deny ing the petition beca use Conley ’s prosec utorial-misconduct claim wa s proce durally defa

ulted; the state court’s plain-er ror revie w of the claim did not constitute a waiver of the state’s proce dural-de fault rule, but rathe r functioned as an enfor ceme nt of that rule. R. 19 at 12, PgI D # 683. The state court’s alterna tive ruling on the merits did not “for g ive” Conley ’s waiver for purposes of his habea s petition. R. 19 at 13, PgI D # 684. Although Conley raised an ineffe ctive-

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assistance -of- trial-counse l claim to excuse the defa ult, the mag istrate judge found that Conley failed to present his ar g ument—that his trial counsel fa iled to object to t he prose cutor’s misconduc t—to the state court. Conley was also barr ed from claiming ineffe ctive assistance of appellate counsel as g rounds to excuse his defa ult on the ineffe ctive-a ssistance-of

- trial- counsel claim beca

use he never attempted to file a

n Ohio Rule 26(B ) applica tion. R. 19 at 14, P g I D # 685. On t he identification issue, the m ag istrate judge commented, “Arg uably , beca use t he st ate appellate court failed to addre ss t h e fe d er al constitutional nature of Petitioner’s claim, this Court
must conduct a less defe rential sta n dard of revie w.” R. 19 at 17, PgI D # 688. Neve rtheless, the
mag istrate judge deter

mined that the pretria l proce dure was not unduly sug g estive and was reliable under the five-f

actor test in Neil v. Biggers , 409 U.S. 188 (1972). R. 19 at 20, Pg I d # 691. The district court adopted the mag istrate j u d ge’s repor t and rec ommendation deny ing Conley ’s petition, but cer

tified two issues for appea l: (1) Was Petitioner denied a fair trial by Sandra Cooper’s in-court identification of him as the perpe trator? , and (2) I s the prosec utorial misconduct claim proc edura lly

defa ulted? For the rea sons below, the district court properl y re j ec t ed the petitioner’s arg uments with
respe ct to these issues. Under 28 U.S.C. § 2254(d) [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 a djudicated on the m erits i n State-cour t proce eding s unless the adjudica tion of the claim (1) resulted in a decision that was contra ry to, or involved an unrea sonable application of,

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clea rly established Fe d er al l aw, as deter mined by the Supreme Court of the United States; or (2) result ed in a decision that was based on an unrea sonable deter mination of the fac ts in light of the evidenc e pre sented in the State c ourt proce eding .” The S upreme Court has furth er elabor ated that the s tandar d of “contrar y to, or i nvolv[ ing]

an unre asonable application of, clea rly established Fe dera l la

w” is “diff

icult to meet,” bec ause the
purpose of AEDP A is to ensure that fede ral habea s relief functions as a “g uard ag ainst extreme malfunctions in the state criminal justice sy stems and not as a me ans of err or corr ection.” Gree ne v. Fisher , 132 S. Ct . 38, 43 (2011) ( quoting Harrington v. Richter , 131 S. Ct . 770, 786 (2011))

. Conley ’s challeng e to Mrs. Cooper’s identification testimony is withou t m er i t ; the Ohio Court of Appea ls did not act contr ary to, or unrea sonably

apply , clea

rly established fe dera l law by upholding the ide ntification. AEDPA defe renc e applies even t h oug h the Ohio Court of Appea ls did not direc tly cite fede ral law in deny ing relief. The Court of Appea ls cited Ohio case s that discuss the federa l law 2 standards f

or eva luating the admissibili ty of i n-cour t identification evidence. The Supreme Court has made clea

r that AEDPA defe re n ce m u s t still be g iven to the state court’s decision beca use “[w]hen a federa l claim has been prese n t ed to a st ate court and the state court has denied relief , it
may be presumed that the state court adjudicate d the claim on the merits i n t h e ab s en ce of any indication or state law proce dural principles to the contra ry .” Harrington , 131 S. Ct. at 784-85. I n

S 2 tat e v . W

il ls , 120 Ohi o App. 3d 3 20 ( Ohio Ct. App. 1 997) ; Sta te v. M cCro ske y , N o. 20 07CA00 089, 200 8 Ohi o 25 34 ( Ohio Ct. App. M ay 19, 20 08)

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Br o w n v. B o b b

y , we explained that in light of Harrington , “the mere fac t that the Ohio Court of Appea ls did not specific ally explain that it was ruling on Br own’s Six th Amendment claim does not
preve nt this court from defe rring to tha t c ourt’s opinion on habea s revie w.” 656 F.3d 325, 328-29 (6th Cir. 2011). The Ohio Court of Appe als did not unrea sonably apply fede ral law by holding that Conley failed to establish that this pretria l identification was unduly sug g estive. The court deter mined that Conley ’s arg ument boiled down to an attack on the weig ht of the identification evidenc e, not its admissibili ty , and there fore declined to s ec o n d-g uess the trial jury ’s conclusions. An in-court identification based on a pretria l proce dure that is “so impermissibly sug g estive as to g ive rise to a

v e r y s u b s ta n ti a l li k e li h o o d o f ir

repa rable misidentification” violates a defe ndant’s due proc e s s r ig h ts

. Mills v. Cason , 572 F.3d 246, 251 (6th Cir. 2009) (quoting Thigpen v. Cory , 804 F.2d 893, 895 (6th Cir. 1986)). To evalua te sug g estiveness, a court must consider “the eff ects of the circ umstances of the pretria l identification.” Howard v. Bouchard , 405 F.3d 459, 469-70 (6th Cir. 2005). There was

an unsucce ssful photo lineup plus a later unplanned identification prior to trial. Conley arg ues that these tog ether

produce d an unduly

sug g estive identifica tion. First, Mrs

. C ooper was shown a photo arr ay shortly afte r the incident, but was unable to identify the perpe trator beca use she had only viewed h i m i n p ro fi le during the incident. Conley cannot establish that the phot o arr ay itself was im permissibl y s u gg estive. For an identification to be impermissibly sug g estive, it must steer the witness towards one suspect or another , independe nt of the witness’s honest rec ollection. W ilson v. Mitchell , 250 F.3d 388, 397 (6th Cir. 2001). I n this

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case , the photo arr ay obviously did not steer Mrs. Cooper towards Conley , beca use she was unable to identify

Conley afte r viewing

the ar ray . Second, Mrs. Cooper identified Conley afte r viewing him at a pretria l h ea ri ng . Conley
cannot establish that this was impermissibly sug g estive, either in itself or beca use of the prior photoarr ay proce dure. Mrs. Cooper opened a courtroom door during a hear ing, looked in, and saw a g roup of t wenty people standing in a corner. As one of those people turned to talk to someon e el se, she

saw his fac e in profile and “eve ry thing flooded back from that night.” She had no doubt that the man she saw in the room was the man who had broken into her home. There was nothing impermissibly
sug g estive about this beca u s e t h e rec ord does not indicate that Mrs. Cooper was steere d towards identify ing Conley ; she did not know any thing besides the bar e fac t that the man suspected of brea king into her home would be among the people in that courtroom—s i m i l ar to what any ey ewitness knows whe n asked to identify a suspec t in a lineup or photo arr ay . Although Conley expresses skepticism about Mrs

. C o o p er’s acc ount, the jury hear d and chose to believe i t. On habea s revie w, the fede ral courts are in no position to second- g uess that deter mination, espec ially in light of AEDPA’s clea r command that “a dete rm i n ati on of a fac tual issue made by a State court shall be presumed to be corr ect” unless the habea s petitioner rebuts that presumption “by clea

r and convincing evidenc e.” 28 U.S.C. § 2254(e) (1). Conley has made no such showing

. Conley also conce ded at oral arg ument that the identification at the pretria l hear ing would
not have been unconstitutionally sug g estive without the previous photo arr ay . Conley ’s attorney noted that but for the photo- arr ay proce dure, it “w ould be like the witness just saw this person out

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in public.” Ora l Arg

ument at 4:08. Con l ey al s o ar gu es that the photo arr ay steere d Mrs. Cooper towards him at the pretria l hear ing. This arg ument is unpersua sive beca use he cannot establish that Mrs. Cooper knew from the six -per son arr ay what the perpe trator looked like. I n addition, Mrs. Cooper identified Conley only when she saw his fac e in profile, and the photos in the arr ay she was shown wer e not in profile; it was for that rea son she was orig inally unable to identify the perpe trator from the arr ay . Be cause it is clear that the photo a rra y did not steer Mrs. Cooper towards Conley , the Ohio court of appea ls could rea sonably conclude that the pretria l identification was unconstitutionally

sug g estive. Conley ’s second arg ument on appea l, conce rning alleg ed prosec utorial m i s conduct, is
proce durally defa

ulted. A fede ral court g ener ally may not consider any claim for habea s relief that

was reje cted by the state courts for failure to comply with the state’s proce dural rules. Hargrave v. Y ukins , 374 F.3d 383, 387 (6th Cir. 2004) (citing Harris v. Ree d , 489 U.S. 255, 262 (1989))

. A fourstep analy sis is used to deter mine whether a habea s petitioner’s claim is p ro ce d u rally defa ulted. “F irst, the court m u st deter mine that there is a state proce dural rule that is applicable to the petitioner’s claim and that the petitioner failed to comply with the rule.” Maupin v. Smith , 785 F.2d 135, 138 (6th Cir. 1986). “Second, the court must decide whether the state courts actua lly enfor ced the state proce dural sanction.” Id. “Third, the cour t m u s t decide whether the state proce dural forf eiture is an adequa

te and independe nt state g round on which the state can rely to fore close revie w of a fede ral constitutional claim.” Id

. Fi n al l y , even if the first three steps establish proce dural defa ult, a habea s petitioner can overc ome the defa ult by “demonstra t[ ing] cause for the [procedura l]

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defa ult and actua l prejudice as a result of the alleg ed violation of fede ral law, or demonstrat[ing] that failure to consider the claims will result in a fundame ntal miscarr iag e of justice.” Girts v. Y

anai , 501 F.3d 743, 755 (6th Cir. 2007); accord Harris , 489 U.S. at 262. Eac h of the four steps precl udes Conley from re lief in this case. First, the Ohio Court of Appea ls deter mined, and Conley does not contest, that Conley failed
to object to the misconduct at trial as require d by Ohio’s contempora neous-objec tion rule. State v. Conley , 2009 Ohio 1848, ¶27 (Ohio Ct. App. Apr. 13, 2009). Conley there fore conce des t he first step of the Maupin test. Second, the Ohio Court of Appea ls did not waive Ohio’s proce dural-de fault rule when it conducte d plain err or revie w of Conley ’s prosec utorial-misconduct claim. As we held in Lundgren v. Mitche ll , 440 F.3d 754, 765 (6th Cir. 2006), “a state cour

t’s plain err or ana ly sis does not save a petitioner from proce dural defa ult” (citing Scott v. Mitchell , 209 F.3d 854, 866 (6th Cir. 2000)). Our decision in Lundgren followed a long line of controlling prec edent in this reg ard. See , e.g. , Hinkle

v. Randle , 271 F.3d 239, 244 (6th Cir. 2001); Seym our v. W alker , 224 F.3d 542, 557 (6th Cir. 2000); Scott , supra . The Ohio court’s alterna tive ruling on the merits did not remove the proce dural defa ult beca use “a state court need not fea r rea ching the merits of a fede ral claim in an alterna tive holding.” Harris v. Ree d , 489 U.S. 255, 264 n.10 (1989); Coe v. Bell , 161 F.3d 320, 300 (6th Cir. 1998). The Ohio Court of Appea ls found no plain err or on the rec ord and held that “ Additionall

y , appellant has
not persua ded us that the comments actua lly constitute prosec utorial misconduct.” State v. Conley , 2009 Ohio 1848, ¶28 (Ohio Ct. App. Apr. 13, 2009) (emphasis added)

. W e do not rea d lang uag e

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relied upon by Conley from our subsequently reve rsed decision in Mitts v. Bagley , 620 F.3d 650, 656 (6th Cir. 2010), as a ltering our long -standing holdings in this reg ard. Third, the state proce dural rule constituted an adequate and independe nt g round of decision. Ohio’s contempora

neous objection rule has been deeme d an adequate and independe nt state g round in numerous Six th Circuit decisions. See , e.g. , W ogenstahl v. Mitchell , 668 F.3d 307, 335 (6th Cir. 2012); Goodwin v. Johnson , 632 F.3d 301, 315 (6th Cir. 2011). Moreove r, the Supreme Court has indicated that the adequa te-a nd-indepe ndent-state- g round doctrine, “[b] y its very definition

. . .

re quires the fede ral court to honor a state holding that is a sufficie nt basis for the state court’s judgme nt, even when the state court also relies on fede ral law.” Harris , 489 U.S. at 264 n.10. Conley is m i s t aken in arg uing that the contempora neous-objec tion rule does not constitute an adequate and independe nt state g round wher e, as here , the state court also rea ched the merits of the fede ral c laim. Four th, Conley cannot exc u s e h is p r o c e d u r a l d e f a u lt b e c a u s e th e in e f

f e ctive-a ssistance claims that he raises to establish “ca use” are also defa

ulted, and beca

u s e h e ca n n o t establish prejudice

. Conl ey co n ce d es that he failed to raise his ineffe ctive-a ssistance-of -trial-c ounsel claim on direc t
appea l, and an ine ffe ctive assistanc e cla im cannot establish “c ause” if it was never considered by

3 the state courts—since under those circ u m s t an ces it is also proce durally defa ulted—unless the

Alt hough Conley ra is ed an inef fe ct ive- ass is ta nce cl ai m on oth er grounds , he did not add re ss tr ia l 3 cou nse l’ s fa il ure t o o b

j e c t t o t he al le ged pro sec uto ri al m is con duc t. Conl ey admits tha t it “ca nnot be exp la ine d” why his dir ect a p pea l al le ged pro sec uto ri al m is con duc t and acknowl edged his tr ia l cou nse l’ s fa il ure to obj ect to tha t m is con duc t, but did not ra is e tha t is sue as a bas is for cl ai m ing ine ff ect ive ass is ta nce of cou nse l. See Pet it ion er ’s Br. at 49. - 10 -No. 11-4036

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petitioner can establish cause and prejudice to excuse the defa ult. Edwards v. Carpenter , 529 U.S. 446, 453 (2000). Conley raises a n ineffe ctive-a ssistance-of

- appellate- counsel c laim to ex cuse the defa ult of his inef fe ct ive-a ssistance-of

- trial- counsel claim, but beca use Conley did not prese nt either claim befor e the state courts, both are proce durally defa ulted and cannot excuse the defa ult of h i s prosec utorial-misconduct claim. “A claim of ineffe ctive assistance

. . . must be prese nted to the state
courts as a

n independe nt claim before it may be used to establish cause f or a pr ocedur al def

ault.” Edwards , 529 U.S. at 452 (quoting Murray v. Carrier , 477 U.S. 478, 489 (1986))

. Conley also never filed an Ohio Rule of Appellate Procedur e 26(B ) application—a proce dure to reope n a criminal case based on a

n ineffe ctive-a ssistance-of -appe llate-c ounsel claim. I n addition, Conley

cannot e stablish pr ejudice be cause his prosecutoria l-misconduct claim is meritless. As in Hall v. Vasbinder , 563 F.3d 222, 237 (6th Cir. 2009), “the prejudice analy sis for the proce dural defa

ult and the prejudice analy sis for the ineffe ctive assistance of counsel arg ument

are sufficie ntl y simil ar to trea t as the same in this context.” Under the Strickland standard for ine f f e c ti v e a s s is ta

n c e , Co n le y mu s t show that his counsel’s perf ormanc e (1) was objectively defic ient and (2) prejudice d the defe nse so as to rende r the t ri al fu n d am entally unfair. Strickland v. W ashington , 46 6 U. S

. 6 68, 687 (1984). Conley has not established that “ther e is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would ha v e b een differ ent,” a s require d by Strickland

. Id. at 694.

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The Ohio Court of Appea ls considere d and reje cted Conley ’s alleg ations that the prosec utor (1) improperly vouched for the Coopers’ cre dibilit y , and (2) sug g ested that Conley lied on the stand. Be cause the prosec utor mere ly arg ued the evidenc e, his comments did not deprive Conley of a fair trial. Since no misconduct occur red, Conley ’s ineffe ctiv e- as s i s t ance arg ument fails beca use his counsel was under no profe ssional obliga tion to make meritless objections. See Bradley v. Birkett , 192 F. App’x 468, 475 (6th Cir. 2006). Moreove r, beca use no misconduct occur red, defe nse counsel’s failure to object could not have prejudice d the defense or undermined c onfidenc e in the
outcome of the trial. Conley cannot estab l ish the “pre judice” neede d to overc ome the proce dural defa ult of his mis conduct c laims. Finally , Conley has not sufficie ntly established that he is actua lly innocent, such that the failure to consider his misconduct cl ai m would result in a fundame ntal miscarr iag e of justice. A

c o lo r a b le actua l-innocenc e claim “re quires petitioner to support his alleg ations o f c o n s ti tu ti o n a l e r r o r with new reliable evidenc e—whe ther it be exculpatory scientific evidenc e, trustworthy ey ewitness

acc ounts, or critica l phy sical evide nce—tha t was not prese nted at trial.” Schlup v. De lo , 513 U.S. 298, 324 (1995). Conley has made no such compelling showing here

. He mere ly claims that afte r h i s trial, Mr. Cooper said to a local man named Mathers, who had previously been co n v i ct ed o f brea king and enter ing and rec eiving stolen proper ty , “What are y ou doing here ? I thought I put y ou in jail.” Conley sug g ests an alterna tive perpe trator for his c rime and attempts to c ast doubt on Mr. Cooper’s identification, but the trial jury alre ady evalua ted his identification and deeme d it cre dible. The district cour

t’s denial of Conley ’s habe as petition is affirme d.

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