NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0163n.06 No. 10-1903 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT MICHAEL DENNIS BATE Y, ) ) P etitioner -Appellee, ) ON AP P EAL FR OM THE v. ) UNITED STAT ES DIS TRICT ) COURT F OR THE E ASTERN DEBRA SCUTT, Warden, ) DISTRICT OF MICHIG AN ) Respondent-Appellan t. ) )

BEFORE: SUHRHEINRICH, SUTTO N and COOK, Circuit Judges. SUHRHEINRICH, Circuit Judge. The State of Michig an appea ls the district court’s g rant of Petitioner-Appellee Michae l Ba tey ’s petition for writ of habea s corpus following his conviction for first-deg ree criminal sexual conduct under Michig an law. We REVERSE and REMAND for further proce eding s consistent with this opi nion. I. Background A. Trial P roce edings Petitioner-Appellee Michae l Ba tey (Petitioner) was char g ed in A lleg an County , Michig an, wi t h two counts of first-deg ree criminal sexual conduct. The char g es arose from alleg ations that Petitioner had eng ag ed in ora l and ana l sex with his mi nor nephe w Matthew. As a principal defe nse, Petitioner planned to asser t that he had been fra med and that Matthew had ac t u al l y b een molested by his older brother, J ason. Some evidenc e supported this theory , including the statement of a police office r who interviewe d Petitioner that “I know J ason has g ivenNo. 10-1903

Batey v . Scutt Matt blow jobs befor e” and a letter from Matthew to Petitioner explaining that the boy s’ pare nt s knew that Petitioner was awa re of J ason sexually abusing Matthew. I n a motion in limine , the trial

court held that Petition er ’s exploration of the sexual activity betwee n the brothers was a “fishing expedition” and prec luded Petitioner from mentioning it during tria l. Severa l witnesses testified ag ainst Petitioner at trial. Matthew, who had been admitted to a residential psy chiatric reha bilitation fa ci lity afte r suffe ring a nervous brea kdown, testified that Petitioner had convince d him to eng ag e i n o ra l sex “at least twenty five times.” Matthew also testified that he and Petitioner had anal sex and that Petitioner told him that sexual activity betwee n family members was normal. J ason testified that he, too, had been molested by Petitioner. He also said that he witnesse d Petitioner perf orming oral sex on Matthew at Petitioner’s home. The boy s’ mother and step-fa ther, Sandra Atwood and David For eman, testified that J ason told them that Petitioner had molested Matthew and that Matthew admitted this was true. The State’s ex p er t witness, Dr. Robi n Z ollar, t estified that it was not uncommon for child victims of sex ual abuse to suffe r mental proble ms and that a de lay in disclosure wa s normal. Unable to asser

t that Atwood and For eman falsely acc used him to co v er u p J ason’s g uilt, Petitioner, an open homosex ual, claimed that Atwood and For eman fra med him beca

use he was g ay . He also asser

ted they had motive to have him imprisoned beca use his involvement in their sons’ lives was offe nsive to them. Specifica lly , he claimed Atwood and For eman disapproved of the way Petitioner had encour ag ed Matthew to explore the homosex ual fee lings he admitted having

. He also alleg ed that his rela tionship with the b o y s’ parents had been s ullied afte r he helped Matthew seek

emanc ipation from them. Finally , he alleg ed that J ason was falsely acc using him b ec ause he had 2No. 10-1903

Batey v . Scutt tried to reha

bilitate J ason fr om his drug a nd alcohol proble ms. A centr al component to his defe nse, Petitioner’s homosex uality was broug ht up ear ly and often at trial. During voir dire, defe nse counsel asked jurors whether they had any biases toward homosex uals, including whether they had relig ious obje ctions to homosex uality , and whether they believed “g ay men are more likely to be pedophiles.” During his opening statement, defe nse counsel
presse d the theory that the animus for Atwood and For eman fra ming Petitioner was, at least in part, their prejudice toward his homosex uality

. T h roughout the course of trial, defe nse counsel called

sever al of Petitioner’s homosexual, former sexual partners to testify on his behalf. T h e prosec utor ref

ere nced Petitioner’s homosex uality multipl e times, as well. She asked Atwood if Petitioner being g ay bothere d her, or whether it disturbed her th at P et i tioner had

encour ag ed Matthew to discover whether he, too, was a homosex ual. Atwood testified that she did

not mind that her brother was g ay and that she fully supported her son in exploring his own sexual identity

. I n fac t, she testified, she and For eman had paid the rent on a building wher e Matthew could attend Petitioner’s g ay Youth Group meeting s . The issue of Petitioner’s homosex uality arose in other contexts also. Specifica lly , the prosec utor asked (1) J ason and Matthew about the names of four of Petitioner’s sexual partne rs, two of whom wer e witnesses; (2) J ason about a co n v er sation with Petitioner, to which J ason responde d over defe nse counsel’s objection that Petitioner told him he “hate s g irls;” (3) J ason: “Did the defe ndant ever provide y o u wi t h any [gay , pornog raphic ]
mag azines or videos or allow y ou to see those in his home? ;” (4) Petitioner’s former sexual partne r who testified about a Youth Group meeting whether he was ref err ing to the “g ay Youth Group;” (5) whether the same witness was a homosex ual; (6) another former sexual partne r of Petitioner whether 3No. 10-1903

Batey v . Scutt he used or saw any g ay pornog raphy at Petitioner’s house; and (7) whether the same witness had spoken reg arding Petitioner’s case to a n ew s p aper called “Michig an’s Communi ty News for L esbians, Gay s, Bi-Sexuals and Transg ender s and Fr iends.” I n her closing arg ument, the prosec utor addre ssed Petitioner’s theory that his homosex uality motivated Atwood and For eman to fra me him for his nephew ’s molestation. She summarized the issue by rec ounting testimony that they provided a buil ding for Matthew to attend P etitioner’s ga y Youth Group mee tings. Finally , she concluded: “This issue isn’t about whether defe ndant is g ay or not g ay . This isn’t about homosex uality , this is about child molestation.” I ronica lly , during trial, the prosecutor ad m i t t ed both the t ransc ript containing the officer’ s
statement that J ason and Matthew had eng ag ed in oral sex and Matthew’s letter to Petitioner alleg ing that J ason had molested him. The prosec utor appar ently admitted the documents for “expediency ’s

s ak e” and did not comment on the s exual history betwee n J ason and Matthew alluded to there i n . When it came time for closing arg ument, defe nse counsel seized the opportunity to comment on the evidenc e the tria l court’s e arlier ruling had pre cluded him from a dmitti ng : [Defense Counsel:] We also hear d all kinds of t estimony , we heard this back door testimony from their expert, Robin Z ollar, who didn’t talk to Matthew, just talked to the prosec utor befor ehand about this c ase, and came in a nd said something like 8% of all males have psy chosis beca use of se x ual abuse

. I g uess what they ’re try ing to show is that Matthew has a p s y ch o s i s t h at was broug ht on by sexual abuse, and it must have bee n beca

use [Petit ioner] did this to him. Of course , when y ou rea d the letter, which y ou’ll g et a chanc e to rea d, what it say s here is that J ason said that y ou knew about him sexually assaulting me befor e any thing was said. That’s signe d by Matthew. “De ar [ Petiti o n er ] , J ason said that y ou knew about him, J ason, sex ually assaulting me bef

ore a ny thing wa s said.” The prosec utor interrupted defe nse counsel’s closing arg ument with an objection. At a sidebar

4No. 10-1903

Batey v . Scutt confe renc e, the trial court sustained the objection and ruled that defe nse counsel ref rain from further

comment on the subject of J ason’s alleg ed sexual abuse. When defe nse counsel rec ommenced his closing arg

ument, he conclude d the subject with the admonition to “re ad this letter car efully , beca use
t h ey ar e Matthew’s own words.

. . I would like y ou to rea d that and see what [Matth ew ] s ai d t o [P etitioner]. When y ou’re looking at this letter.

. . . reme mber he testified that this letter was written a month, two wee ks, to a month before he we nt into the hospit al.” The jury convicted Petitioner of first- d e g r e e c r im in a l s e xu a l conduct on the count of eng ag ing in oral sex with Matthew. He wa s sentence d to fifteen to f orty -five y ear s in prison. B. Pr ocedural Background Petitioner appea led his conviction t o the M ichig an C ourt of Appeals. I n pertinent part, he claimed that the prosec utor had eng ag ed in misconduct by repe atedly ref ere ncing his homosex uality and that the district court’s ruling prec luding him from commenting on admitted evidenc e during closing arg

ument deprive d him of a fair trial. T h e M i ch i g an Court of Appea ls reje cted both 1
arg uments. Wit h re spect to Petitioner’s prosec utorial misconduct claim, the court found that any misconduct did not affe ct Petitioner’s substantial rig hts. I t held, in pertinent par t, that: Ba tey failed to object to all but one of the alleg ed instances of misconduct. Whether viewed under the de novo standard require d for the single p re s erved instance of alleg ed misconduct or the plain err or standard applicable to the other instances Ba tey

P et i tioner raised sever al additional arg uments befor e the Michig an Court of Appea ls. 1 Be cause the district court predic ated habea s relief on Petitioner’s prosec u t o ri al misconduct and closing argume nt claims and did not addre ss the Michig an Court of Appea ls’ conclusions on the other issues pre sented, we also nee d not addre ss them. 5No. 10-1903

Batey v . Scutt bring s to our attention, the result is the s ame: Ba tey has n o t d em o n strated that the prosec utor’s comments wer e likely to have had any neg ative eff ect on the jury

. Wit h respe ct to the comment that drew his objection at trial, the trial co urt took prompt action to preve nt prejudice to him. None of the other comments aff ecte d Ba tey ’s substantial rig hts. Singular ly or collectively , these comments did not deny Ba t ey a fair a nd impartial trial. People v . Batey , No. 227117, 2002 WL 1998565, at *5 (Mich. Ct. App. Aug . 27, 2002). On the issue of Petitioner’s closing arg ument, the Michig an Court of Appea ls found that the trial court had err ed in restric ting defe nse c o u n s e l’ s c o mm e n ts r e g arding matters alre ady in evidenc e. I t concluded, how ever , that the er ror wa s harmless: Neve rtheless, the tria l court’s e rror does not require reve rsal. The jury was awa re from the evidenc e that there was sexual activity betwee n Matthew and J ason. Du ri n g clos ing arg ument, defe nse counsel told the jury that, in a letter to Ba tey , Matthew disclosed that J ason had sexually assaulted him. Def ense counsel urg ed the jury to rea d the letter car efully

. Thus, while defe nse counsel d i d n o t have an o p p o rt unity to fra

me the arg uments as might have been desired, the jury was sti l l awa re of the defe nse theory

. Under these circ umstances, it does not aff irmatively appea r that it is more probable than not that the er ror wa s outcome dete rminative. Id . at *4. Petitioner filed a motion for lea ve to appe al the Michig an Court of Appea ls’ aff

irmance of his conviction with the Michig an Supreme Court. The Michig an Supreme Court denied leave

. 2 Petitioner then fil ed a wr i t o f habeas corpus in the federa l district court for the Eastern District of Michig an, pursuant to 28 U.S.C. § 2254. The district court g rante d habeas re l i ef o n Petitioner’s
pros ec u torial misconduct and closing arg ument claims. Finding that relief was proper on these

The district court thoroug hly addre ssed the various additional filings of the parties’ in this 2 case and we here by incorpora te the detailed rec itation within its unpublished opinion. See Batey v. Burt , No. 05-CV-73699- DT, 2010 WL 2650019 at *2-3 (E .D. Mich. June 30, 2010). 6No. 10-1903

Batey v . Scutt issues, the dis t ri ct court did not addre ss the rema ining claims raised in Petitioner’s petition. The State appea ls. II. Analysi s A. Standard of

Review This Court revie ws a district court’s decision to g rant habea s corpus relief de novo . Tucker

v. Palmer , 541 F.3d 652, 655 (6th Cir. 2008). Under the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 ( AEDPA), a fede ral court may not g rant a writ of habea s corpus unless the state c ourt decisions “(1) resulted in a decision that was contrary to, or i nvolved 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 fac ts in light o f the evidenc e pre sented in the State c ourt proce eding .” 28 U.S.C. § 2254(d). B. Pr osecutor ial Miscondu ct C laim On direc t appea l, the Michig an Court of Appea ls held that prosec utorial misconduct did not aff ect Petit ioner’s substantial rig hts. Under the defe rential AEDPA standard, we will reve rse this holding only

if we f ind it contrary

to or an unre asonable application of e x isting fe dera l law. To sustain a claim of prose cutorial misconduct unde r AEDPA, Petitioner “ must show that
any prosec utorial misconduct ‘so infec ted the trial with unfairne ss as t o make the resulting conviction a denial of due process.’” Henley v. Bell , 48 7 F. 3 d 3 7 9 , 3 8 9 (6th Cir. 2007) (quoting Donnelly v. DeChristoforo , 41 6 U. S

. 637, 643 (1974))

. Petitioner points to sever al of the
prosec utor’s rema

rks that he asser

ts satisfy this stand ar d ; notwithstanding, he fails to cite clea rly established fede ral law, as define d by the Supreme Court, that appropr iately supports his asser tions. 7No. 10-1903

Batey v . Scutt Whil e this alone rende rs further analy sis unnece ssary , we will never theless addre ss the issue raised. Although the Michig an Court of Appea ls did not consider these statements individually , we will do so in order to assess whether it s ruling that the s tatements i n the agg reg at e d i d n o t v i o l ate Petitioner’s substantial rig hts is subject t o reve rsal under AEDPA. As we find, with an almost de

novo ey e, that the pr osecutor’ s statements wer e neither individually nor collectively prejudicia l to Petitioner, we nece ssarily conclude that the Michig an Court of Appea ls’ decision on this issue was
not unrea sonable. First, Petitioner urg es that it was prosec utorial misconduct for the prosec utor to “pose hara ssing questions to defe nse witnesses” and to “re mind the jury that [P etitioner] was g ay ” for “no other purpose than t o inflame the jury .” He uses the following portions of t he prosecutor’s crossexamination of defense witness Eng lemann, Petitioner’s for mer sexual partne r, as a

n example: Q: Now, how of

ten have y ou seen Ma tthew [] ?

. . . . A: Four or five [occ asions]. Q: Four or five oc casions. How long wer e those c onversa tions? A: Not any cer

tain, y ou know, leng th of time that, y ou know, the Youth Group meeting s - -

. . . . Q: I s that the g ay

Youth Group? A: Yes. Q: Okay . Were y ou a member of that g roup also? A: Yes. Q: Are y ou a homosexual? A: Yes. Q: Are y ou a fr iend of the de fenda nt? A: Yes.

. . . . Q: Okay . Have y ou been a partne r of Mike’ s sexually ?

. . . . A: Yes, a t one time or anothe r. 8No. 10-1903

Batey v . Scutt Considered in context, it is clea r the prosec utor was asking leg iti m at e q u es t i ons to uncover Eng leman n ’s b i as i n favor of Petitioner. Her question about whether the Youth Group to which Eng lemann was ref

err ing was the “g ay Youth Group,” and whether he was a member of the g roup, laid the fo u n d at ion to establish that Eng lemann was g ay like Petitioner. The fact that Eng lemann

was g ay , in turn, was nece ssary to establish that he had eng ag ed in a consensua l sexual rela tionship with Petitioner, a per m i s s i b le inquiry tending to show that Eng lemann was disposed to provide testimony that would be favor able to Petitioner. The Supreme Court has co n s i s t en t l y held that a witness’ bias and partiality is a leg itimate subject of cross-e x amination. See, e.g., Davis v. Alaska , 415 U.S. 308, 316 (1974) (“The partiality of a witness is subject to exploration at trial, and is ‘alwa y s rele vant as discred i t i n g t h e witness and affec ting the weig ht of hi s testimony .’”) (interna l citation omitted). Se c o n d, Petitioner contends it was flag rantly improper to question another one of Petitioner ’ s former sexual partne rs about whether he had used or kept, or knew of Petitioner keeping , g ay p o rnog raphy at Petitioner’s home. Although these inquiries seem prejudicia l in isolation, J as o n testified specific ally that Petitioner would “flip [gay , pornog raphic videos ] on and start masturbating

. . . . Take off all his clothes and masturbate.” I n a pre- trial statement, Petitioner denied having g ay pornog raphy in his home and indicated that it must have belong ed to some one else. I n
t h i s contex t, questions reg arding the witness’ knowledg e of g ay pornog raphy at Petitioner’s residenc e wer e rele vant and not ha rassing

. Moreove r, even the question of the witness’ use of g ay pornog raphy at Petitioner’s home was clea rly probative g iven Petitioner’s alleg ation that someone must have left the ma terial be hind there. 9No. 10-1903

Batey v . Scutt Third, Petitioner arg ues that the prosec utor wrong fully elicited stereoty pical testimony from J ason ab out Petitioner, including that he “hate s g irls” and had suffe red failed rela tionships with

women: Q: Did the def

endant e ver g ive y ou any

information about homosexuality ? A: Yea h. Q: How did he pr ovide that to y ou? What did he tell y ou? A: Well, it would end up me telling him about my bad rela tionships wi t h m y g irlfriends, then he would g et in t o ex p l aining why he hates g irls so much and his problems with g irls, then he’d ge t into the gay issue and he would start pressing it , y ou know. Q: Then he would start doing what? A: Making it out that ever y thing - - that ever

y thing in all the - - the g ay rela tionship is better than he terosexual - - Q: Okay

. A: - - and I was heter osexual and I was g etting confuse d and there for a while I thought that I was g ay . I was confuse d, y ou know, I ’d s ay I am g ay and then I ’d chang e my

mind and then I ’d think about it and I ’d say I ’m not g ay . Q: Why did y ou think y ou wer e g ay ? A: ‘Cause he manipulated me, he had such mind play over me . Her e, aga in, context is dispositi ve. J ason’s t es t imony reg arding Petitioner say ing he “hates g irls” and had encounte red “proble ms with g irls” supported his alleg ations that Petitioner manipulated him into believing that the homosex ual lifesty le was superior to having heter osexual rela tionships. This purported manipulation, in turn, explained why J ason believed Petitioner had “mind play ” over him when he convince d him to enga g e in homosexual acts. Finally , Petitioner alleg es t hat t he prosecutor took “g rea t pains” to poi n t o u t the i rre levant detail that a ne wspape r to which a defe nse witness spoke wa s exclusively for the g ay

community : Q: Are y ou familiar with the ne wspape r ca lled Be tween the L ines? A: Yes, I am. Q: And, that’s a ne wspape r published in Michig an. I s that corr ect? A: Yes, it is. 10No. 10-1903

Batey v . Scutt Q: I t’s called a Michig an’s Communi ty News for L esbians, Gay s, Bi-Sexu als and Transg ender s and F riends. Sorry

. A: Yes. The rec ord ref

lects that this exchang e took place in the course of the prosec utor’s attempt to impeach the defe nse witness. The prosec utor took no more “pains” to point out the title of the newspa per to which the witness spoke than to clar ify what he said in his conve rsation and on what date the

co n v er s at i o n occur

red. I t is inconsistent for Petitioner to now claim that the mere mention of a homosex ual p u blication is prejudicia l wher e Petitioner himself chose to make homosex uality a

corne rstone of his own de fense

. Petitioner is c orre ct that his homosexuality was a main focus at trial. But this was beca use either Petitioner himself asser ted it as a principal def

en s e, or beca

use Petitioner’s discussions of homosex uality and his possession of homoerotic materia ls wer e materia l components of the State’s

case . Simi larly , it was Petitioner himself who most often raised the issue of defe nse witness’ homosex uality

. The prosec utor reiter ated it only as nece ssary to show bias. Acc ording ly , whether the prosec utor’s statement are assessed individually , as here , or collectively , as by the Michig an Court of Appea ls, we fi n d n o ground on which the Michig an Court of Appea ls’ conclusion that Petitioner’s substantial rig hts wer e unaff ecte d by prosec utorial misconduct war rants reve rsal under AEDPA. C. Closing Argum ent Claim The Michig an Court of Appea ls found that the trial court err ed when it p revented defe nse counsel from commenting on matters in e vidence during its c losing arg ument. I n consideration of the fac t that the State’s own admission apprise d t h e j ury of the very information defe nse counsel 11No. 10-1903

Batey v . Scutt soug ht to discus s , h o we v er , i t found the err or harmless. Under AEDPA, we reve rse this finding only if we conclude that the Michig an Court of Appea ls’ decision was contra ry to or an unrea sonable application of f

eder al law, a s defined by

the Supreme Court. The Supreme Court has held that the rig ht of a criminal defe ndant to pre sent closing
arg ument is de rivative of the Six th A mendment rig ht to counsel and the rig ht to prese nt a defe nse, and “is a basic element of the adver sary fac tfinding proce ss in a cr i m i n al trial.” Herring v. New Y ork , 422 U. S

. 853, 858 (1975). To this end, while the trial court has discretion to “ensur e that
arg ument does not stray unduly from the mark, or otherwise impede the fair and order ly conduct of the trial,” id . at 862, it may not f ully curta il the defe ndant’s rig ht “ to be hear d in summation of the evidenc e fr om the point of view most favora ble to him.” Id . at 864. The State does not dispute that the trial court’s closing arg ument ruling was err or but urg es

us to c onclude, like the Michig an Court of Appe als, that the err or was harmless. An ordinary trial

err or is harmless if the revie wing court finds that it did not have “substantial and injurious eff ect or influence in deter

mining the jury ’s verdic t.” Br ec h t v. Abrahamson , 507 U.S. 619, 638 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)). We ag ree that any err or in this case was harmless under Brecht

. By virtue of the prosec utor’s

ear lier admiss ions, the jury had ac cess to evidence that J ason had sexually abused Matthew i n the past. Fur thermore , defe nse counsel was able to rea d aloud the most damag ing portions of this evidenc e befor e the prosec utor objected

. I n fac t, defe nse counsel was able to fully arg ue that Dr. Z ollar’s testimony mere ly established that Matthew had been a victim of sexual molestation and that the jury could ultimately infer that J ason, not Petitioner, was the perpe trator of that abuse. Although 12No. 10-1903

Batey v . Scutt the trial court sustained the prosec utor’s objection, it never instructed the jury to disreg ard defe nse counsel’s comments. Finally , defe nse counsel was able to c onclude his c losing arg ument rema

rks on the subject, without objection, by encour ag ing the jury to refe renc e Matthew ’s letter f or itself. We are confide nt that this direc tive, coupled with the afor ementioned fac tors, ameliora ted any prejudice cause d by the t rial court’s ruling

. As th e Michig an C ourt of Appeals rea ched the same 3 conclusion, we find that its decision w as n o t contrary to or an unrea sonable application of clearly established fe dera l law. The district court relied o n Conde v. Henry , 198 F.3d 734 (9th Cir. 1999) to support its conclusion that the Michig an Court of Appea ls’ decision failed under AEDPA. The district court’s relianc e on Conde was misplace d for two r easons. F irst, Conde is a Ninth Circ uit c ase and is thus

not “cle arly established fede ral l aw a s determine d by the Supreme Court .” See 28 U.S.C. § 2254(d)( 1). Second, Conde is fac tually distinguishable

. I n that case , the Ninth Circuit found habea s re l i ef appropr iate for the trial court’s structura l err or of preve nting defe nse counsel from

ar gu i n g to the jury that the defe ndant, on trial for kidnaping for the purposes of robber y , h ad n o intent to commit robber

y . Conde , 198 F.3d at 739. Thus, the trial court’s ruling in Conde eff ectively
preve nted the defe ndant from contesting an element of the crime with w hich he was char g ed. Id

. This is not t h e ca se here , wher e the maxi mum eff ect of the trial court’s ruling was to mere ly

We are also persua ded by t h e S t ate’ s arg ument that additional elabor ation on J ason’s 3 alleg ed abuse may not have been as exculpatory as expected. I n d ee d , t h e u n u sual nature of biologica l brothers en g ag ing in sexual acts with one another may have corr oborate d, rathe r than undermined, Matthew’s testimony that Petitioner tol d h i m that sexual activity betwee n family members wa s normal.

13No. 10-1903

Batey v . Scutt abbre viate one of

many of Petitioner’s ar g uments supporting his complete innocenc e.

III. Conclusi on For the rea sons stated, we REVERSE the district court’s g rant of habea s relief on the basis of prosec utorial misconduct and Petitioner’s closing arg ument claim. We REMAND for the district

court to consider whether habea s relief is war rante d on the o t h er , p re viously unconsidere d claims raised in Petitioner’s habea s petition, in c luding the threshold issue of whether these claims have been
appropr iately

prese rved.

14