NOT RECOMMENDED FORFULL-TEXT PUBLICATION FileName: 14a0843n.06 CaseNos. 13-3855/3857 

## NOV 2

## 2014 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

## DEBORAH&HUNTSClerk MARK LANGFORD, 

## ) ) Petitioner-Appellee/Cross-Appeliant, 

## ) ) ON APPEAL FROM THE UNITED v. 

## ) STATES DISTRICT COURT FOR 

## ) THE SOUTHERN DISTRICT OF WARDEN, ROSS CORRECTIONAL 

## ) OHIO INSTITUTION, 

## ) ) OPINION Respondent-Appellant/ 

## ) Cross-Appellee. 

## )

BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, DistrictJudge.* BERNICE BOUIE DONALD, CircuitJudge. PetitionerMarkLangford, an Ohio state prisoner, filed a writ ofhabeas corpus pursuant to 28 U.S.C. 

## § 2254, claiming several grounds for relieffrom his state trial court conviction for murder. The district court granted and denied the petition in part, and both sides appealed. For the reasons that follow, we AFFIRM the district court in all respects. I. BACKGROUND In 1995, Mark Langford and Marion Jones were members of rival gangs. State v. Langford, No. 9AP-1140, 2010 WL 3042185, at *6 (Ohio Ct. App. Aug. 5,2010). In the course

*The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by designation. 1CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution ofthis rivalry, Langford was beaten up. Id. In retaliation, on July 18, 1995, Langford, and possiblyhis friends, shot atthe individuals whomtheybelieved had attackedLangford. Id. at * 1, *6. Jones died in the gunfire. Id. at *1, *6. On August 4, 1995, the State of Ohio indicted Langford for Jones’ murder. Id. at *1. At trial, witness Nichole Smith did not honor her subpoena and appear to testify. Id. Subsequently, on November 24, 1995, the state dismissed the indictment, andthe courtordered an entry ofnolleprosequi. In 2005 two federal prisoners, Jason Arnold and Isaac Jackson, informed law enforcement that they heard Langford, while he was incarcerated, confess to involvement in Jones’ murder. Langford, 2010 WL 3042185, at *5, *7 In about February 2006, law enforcement reopened the case as a result of this information. Id. at *2. Law enforcement located Nichole Smith in 2006, and they also interviewed the two prisoners claiming to have information about Langford. Id. On October 24, 2008, an Ohio grand jury again indicted Langford on two counts relating to Jones’ death: aggravated murder, in violation ofOhio Rev. Code Ann. 

## § 2903.01, and murder, in violation of

## § 2903.02. Id. Each count includedwhat Ohio law calls a “specification,” charging that Langford possessed a firearm during the offense. The firearm specification exposed Langfordto amandatory minimum sentence under 

## § 2929.14(B)(1)(a). Langford moved the state trial courtto dismiss the indictment on the groundthatthe pre indictment delay violated his state and federal due process rights and his right to present a defense. Langford, 2010 WL 3042185, at *2. Langford argued that several key witnesses

— including Paul Michael Ross (“Big Mike”) Don Gentry (also known as “Big Mike”), and Deshaun Williams

— were now deceased. Id. at *2..3. Additionally, at an evidentiary hearing, a detective testifiedthat law enforcementhad destroyed 

### two pieces offorensic evidence: the bullet
2CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution that killed Jones and a cartridge box containing Langford’s fingerprint. Id. at *2. On June 18, 2009, the trialjudge, in open court, denied Langford’s motion to dismiss because Langford did notdemonstrate thatthat pre-indictmentdelay causedhim actual prejudice. Id. at *3 On October 19, 2009, the case proceeded to trial. The State of Ohio presented two theories at trial. The first was that Langford was the actual shooter, and therefore a principal offender in the homicide. The second theory was that Langford was an accomplice. Nichole Smithtestifiedthat in 1995, she would spendtime with “Detroitboys.” She furthertestifiedthat in July 1995 the “Detroit boys” and the “F and L group” (named for Fairwood and Livingston Roads), ofwhich Jones was a part, had a feud over “territorial drugs.” She testified thatthe “F and L boys” “beat [up Langford] pretty bad.” Smith testified that on the night ofJuly 18, 1995, she was “hanging out in the alleys,” and Langford told her that it was “time to get [the F and L boys].” Smith also testified that Langford and his confederates had three weapons (two handguns and one rifle), butthat Langford did not have the rifle. Smith walked with the Detroit boys inthe direction ofthe F and L group, and she witnessedthe Detroitboys withthe rifle shoot at the F and L group. Smith testified that she also witnessed Langford shooting at the F and L group. The two federal prisoners, Jason Arnold and Isaac Jackson, also testified that Langford confessedto his involvement in Jones’ death. On October 26, 2009 the court charged thejury. On Count One, the court instructed the jury that in order to convict Langford of aggravated murder, it needed to find that Langford “purposely and with prior calculation and design caused the death of Marlon Jones,” and it provided a definition of “purposely.” See Ohio Rev. Code Ann. 

### § 2901.22 (“A person acts purposely when it is his specific intention to cause a certain result

. .

. .“). Thejury was also instructed on the elements ofmurder, as charged inboth Count One (as a lesserincluded offense)
3CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution and Count Two, and was told that the word “purposely” used in the definition ofthat crime had the same meaning as the court previously explained. Specifically, thejury instructions stated thatmurderrequired finding that Langford “purposely caused the death ofanother.” Finally, the court instructed the jury that Langford could be “convicted as a principal offender or as a complicitoror an aider and abetterto any or all counts and specifications in the indictment.” The instructions stated: Before you can find the defendant guilty ofa crime as a complicitor or aider and abettor, you must find beyond a reasonable doubt that..

. the defendant aided or abetted another in purposely committing the offenses.... The defendant cannot be found guilty ofcomplicity unless the offense was actually committed, but he may be found guilty ofcomplicity in an attemptto comit [sic] the offense.

. . . An aider or abettor is one who aids, assists, supports, encourages, cooperates with, advises, or incites another to comit [sic] a crime, and participates in the commission ofthe offenseby some act, word, orgesture. On October 27, 2009, thejury returned its verdict. On Count One, thejury acquitted Langford of aggravated murder and the firearm specification but convicted him ofthe lesser included offense ofmurder. On CountTwo, thejury convicted Langford ofmurderbut acquitted him ofthe firearm specification. The court sentenced Langford, on Count Two only, to fifteen years to life imprisonment. On appeal to the Ohio Court ofAppeals, Langfordraised five assignments oferrors, only
one ofwhich was sustained. See Langford, 2010 WL 3042185, at * 1. The Ohio Supreme Court did not accept Langford’s appeal. See State v. Langford, 939 N.E.2d 1266 (Ohio 2011) (table). The Ohio Court ofAppeals denied Langford’s application for reopening, and the Ohio Supreme Court again did not accept Langford’s appeal for review. State v. Langford, 947 N.E.2d 684 (Ohio 2011) (table).

4CaseNos. 13-3855, 13-3857 Lan

### gfordv. Warden, Ross CorrectionalInstitution Langford petitioned in federal district court for a writ ofhabeas corpus, seeking reliefon several grounds: (1) the pre-indictment delay violated his rights to due process and a fair trial; (2) the trialjudge failed to instructthejury on the mens rea for complicity; and (3) his appellate counsel was ineffective for failing to raise several issues to the state court of appeals. A magistratejudge recommended that the district court grant reliefon the second claim and deny reliefon the others. See Langford v. Warden, Ross Corr. Inst., No. 2:12-CV-0096, 2013 WL 459196 (S.D. Ohio Feb. 7, 2013). The district court conditionally granted Langford reliefon the jury instruction issue and dismissed Langford’s other claims. See Lang/ord v. Warden, Ross Corr. Inst., No. 2:12-CV-96, 2013 WL 3223379 (S.D. Ohio June 25, 2013). Respondent Warden appeals the district court’s decision granting Langford a conditional writ of habeas corpus on the jury instruction claim. Langford appeals the district court’s dismissal ofhis pre-indictmentdelay claim andhis ineffective assistance ofcounsel claim. IT. STANDARD OF REVIEW We review the district court’s legal conclusions regarding Langford’s habeas petition de
novo. Davis v. LaJier, 658 F.3d 525, 530 (6th Cir. 2011) (en banc). A federal court may not grant a petition for a writ ofhabeas corpus for “any claim that was adjudicated on the merits in State courtproceedings,” unless the state proceedings: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Courtofthe United States; or (2) resulted in a decision that was based on an unreasonable determination ofthe facts in lightofthe evidence presented inthe State courtproceeding. 28 U.S.C. 

### § 2254(d). The “unreasonable application” clause authorizes federal courts to grant the writwhen a “state-court decision unreasonably applies the law of[the Supreme Court] to the
5CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution facts of a prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 409 (2000). The state-court application offederal lawmustbe “objectivelyunreasonable.” Id. III. ANALYSIS A. Jury Instruction

“The Constitution gives a criminal defendantthe rightto have ajurydetermine, beyond a reasonable doubt, his guilt ofevery element ofthe crime with which he is charged.” United States v. Gaudin, 515 U.S. 506, 522-23 (1995). Under Ohio law, a defendant can be convicted under a theory ofaccomplice liability ifhe “act[s] with the kind ofculpability required for the commission ofan offense.” Ohio Rev. Code Ann. 

### § 2923.03(A). A person guilty ofcomplicity “shall be prosecuted and punished as ifhe were a principal offender.” Id. 

### § 2923.03(F). “[Tb supporta conviction for complicity.

. . the evidence must show.

. . thatthe defendant shared the criminal intent ofthe principal.” State v. Johnson, 754 N.E.2d 796, 801 (Ohio 2001). Langford argues thatthe trial court’s failureto so instructviolates Supreme Courtlaw. Here, the trial court instructed thejury that it could convict Langford as an accomplice if it found that he “aided or abetted another in purposely committing the offenses.” The trial court did not instruct thejury that complicity required that Langford act with the culpability required for murder, i.e., purposely. The Ohio Court ofAppeals notedthat the trial court didinstructthe jury onthe meaning of“purposely.” The court reasoned: Thejury, by its verdict, found that Langford had a specific intention to cause the death ofMarion Jones, either by his own intention or by the transpired intent of the shooter who was actually using the Ruger .357. Thejury could not have been misled by the charge given, nor could it have found Langford guilty based upon an error in thejury charge.

6CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution Langford, 2010 WL 3042185, at *5 The court did not elaborate. It did not explain howthejury ‘by its verdict” determinedthatLangford had the specific intention to murder Jones. Thejury’s verdict form simply stated that the jury “flou]nd the defendant guilty ofthe lesser included offense ofmurder” and “guilty as to count two ofthe indictment for murder.” The verdict form did not address mens rea or indicate anything thejury may have concluded about Langford’s
mens rea. Although the state court’s reasoning for rejecting Langford’s jury instruction claim is terse, our concern is with the state court’s decision

— not the adequacy, or even logic, ofits reasoning. Indeed, we accordthe same deference to a state court’s adjudication ofa claim on the merits regardless ofwhether it provides any reasoning at all. Harrington v. Richter, 131 S. Ct. 770, 784 (2011). “[D]etermining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” Id. AEDPA “does not require a state court to give
reasons before its decision can be deemed to have been ‘adjudicated on the merits.” Id. at 785. Our review, then, is ofthe Ohio Court ofAppeals’ decision that the failure to instruct on mens
readid notviolate Langford’sjurytrial right. “Thepivotal question is whetherthe state court’s application of[Supreme Court law] was unreasonable.” Id. “A state court’s determination that a claim lacks merit precludes federal habeas reliefso long as fairmindedjurists could disagree on the correctness ofthe state court’s decision.” Id. at 786 (internal quotation omitted). “[W]e may grant the writ based on errors in statejury instructions only in extraordinary cases.” Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). As previously noted, the prosecution mustprove, beyond areasonable doubt, every elementofthe crime charged. Gaudin,
7CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution 515 U.S. at 522—23; see also In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proofbeyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); Sandstrom v. Montana, 442 U.S. 510 (1979) (finding that deficient jury instruction violated the defendant’s constitutional rights by not requiring that the state prove every element ofthe criminal offense beyond a reasonable doubt). Here, however, the trial court did not instruct the jury that conviction as an accomplice, under Ohio law, requires thatthe defendanthavethe same intent as the principal. As the magistratejudge correctly reasoned, this violated Supreme Court law. See Langford, 2013 WL 459196, at *13. Accordingly, the state court’s contrary conclusion was necessarily an unreasonable application ofSupreme Court law. 2. Respondent does not dispute that the trial court failed to instruct on the mens rea of complicity, but insteadpresents avariety ofarguments suggesting, essentially, that any errorwas harmless. Respondent first argues that the jury instructions, in their entirety, sufficiently instructedthejury on the mens rea element. This appears to be the theory thatthe Ohio Court of Appeals relied on as well: that the instructions as a whole were not ambiguous. See Langford, 2010 WL 3042185, at *5 We find, however, that there was nothing in thejury instructions to convey the principle that an accomplice need act with the same mens rea as the principal offender in order to be found guilty as a complicitor. Beginning with Count One, the twenty four page jury instructions first addressed the elements of aggravated murder, the firearm specification, and the doctrine oftransferred intent. The trial court then turned to the lesser included offenses of murder and involuntary manslaughter. The instruction on the lesser included offense ofmurder states: ‘Before you can find the defendant guilty, you must find that
8CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution the State has provedbeyond areasonable doubtthatthe defendant.

. . purposely caused the death ofanother.” Beginning on the fourteenth page, thejury instructions then address Count Two. The instructions again state: “Before you find the defendant guilty ofMurder, you must find thatthe State has proved beyond a reasonable doubtthat.

. . the defendantpurposely caused the death of Marion Jones.” Seven additional paragraphs discuss the firearm specification and the lesser included offense ofinvoluntary manslaughter. Then, the instructions address complicity: “The defendant may be convicted as a principal offender or as a complicitor or an aider and abettor to any or all counts and specifications ofthe indictment.” The instructions continue: “Before you can find the defendant guilty ofa crime as a complicitor or aider and abettor, you must find beyond areasonable doubt that

. . . the defendant aided or abetted another in purposely committing the offenses

. . . Additionally, the instructions informed the jury: “An indictment charging a defendant as a principal offenderalso charges the defendantwith aiding and abetting that crime.” We agree with the magistrate judge: the state court decision is an unreasonable application of Supreme Court law, even when viewing thejury instructions in their entirety, given the instructions’ failure to include any language informing the jury about the required
mens rea ofcomplicity. See Langford. 2013 WL 459196, at *13. Although the instructions did notdirectly state that complicity is a strict-liability crime, they also did not affirmatively statethe correct mens rea. Rather, the instructions omitted mention of the mens rea for complicity altogether. As indicated, the trial court instructed the jury that conviction under a theory of accomplice liabilityrequiredthejuryto findthatLangford “aided or abetted anotherinpurposely
9CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution committing the offenses.” We decline to adoptthe proposition thatthe word “purposely” in this clause was sufficient. In orderto instruct thejury correctly, and comply with Ohio’s modeljury instruction, the adverb “purposely” must have modified the verb phrase “aided and abetted.” In the instruction actually given, the adverb “purposely” instead modifies the verb “committing.” This is not, as the dissent argues, a minor or insignificant “misplacement of a word.” “Purposely,” as instructed, modifies a completely differentverb, and in doing so leaves openthe question as to the manner in which Langford must have “aided and abetted another.” When properly placed, “purposely aiding and abetting another” in committing murder accurately conveys that, in order to be convicted as a complicitor, Langford must have had the specific intent to aid and abet the murder ofJones. When improperly placed, thejury is erroneously informedthat in orderto convictLangford as acomplicitor, Langford musthave aided or abetted another, and it is sufficient that the other “purposefully committ[edj” murder. These two scenarios are not functional equivalents. Thus, it is insufficient to say that the instruction is correct, or that its error is harmless—as discussed more fully below—simply because the word “purposely” appears somewhere in the sentence. Accordingly, the word “purposely” in the complicity instruction cannot reasonably be read to accurately convey that Langford must act with the kind ofcomplicityrequired forthe underlying offense. In addition, the Respondent’s reliance on Henderson v. Kibbe, 431 U.S. 145 (1977) is misplaced as applied to the facts ofthis case. In Henderson, the defendantrobbed an intoxicated
man and abandoned him on an unlighted road at night in near zero-degree weather. Shortly thereafter, the man was hitby atruck and died. Id. at 147. The state chargedthe defendant with murder under a statute that provided for guilt when “under circumstances evincing a depraved indifference to human life, [one] recklessly engages in conduct which creates a grave risk of
10CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution death to another person, and thereby causes the death ofanother person.” Id. at 148 (alteration marks omitted). The defendant sought habeas relief, arguing that the trial court should have instructed thejury on the meaning of“thereby causes the death ofanother person.” Id. The Supreme Court held the trial court’s failure to elaborate on causation was not error where “the trialjudge read to thejury” the exact statutory language. Id. at 153. There, the defendant’s “claim ofprejudice [was] based on the failure to give any explanation beyondthe reading ofthe statutory language itselfofthe causation element.” Id. at 155 (emphasis added). There is no requirement that a trial court do more than instruct on the elements of an offense. Here, however, the trial courtdid not evenread the language of

### § 2923.03, Ohio’s complicity statute.’ Further, even reviewing the “totality ofthe circumstances” attrial, we are notpersuaded that thejury was sufficiently aware ofthe mens rea needed for complicity. Citing Middleton v, McNeil, 541 U.S. 433 (2004), Respondent asks us to considerthejury instructions in light ofthe prosecutor’s closing argument at trial. In Middleton, the Court found that federal law does not prohibit a state appellate court from assuming that a prosecutor’s argument clarifies an ambiguousjury charge. Middleton, 541 U.S. at 438. Here, Respondent reproduces in his brief eight pages ofthe prosecutor’s closing argument, but provides almost no accompanying legal argument. Having reviewedthe prosecutor’s argument, we do not find that it alters the analysis. Respondent suggests that the prosecutor’s use ofwords like “intend,” “intentions,” “wanted,” and “help them,” over eight pages of closing argument, somehow shows that the prosecutor cured any defect in thejury instructions. Respondent’s argument is not persuasive. It hardly needs stating that the use ofwords like “intend” and “wanted” in the course ofdiscussing the ‘Also relevant for the Court in Henderson was that the defendant did not initially challenge the sufficiency ofthejury instructions on directappeal. See Henderson, 431 U.S. at 150. Ajudge of New York’s intermediate court ofappeals first raised the issue in his dissent from the court’s affirmance ofthe defendant’s conviction. See Id. 11CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution narrative ofthe crime do not inform ajury that an accomplice must share the mens rea ofthe principal. The prosecutor’s closing argument, if anything, rendered the applicable law more opaque. For instance, Respondent highlights the following statement made by the prosecutor at
one point in closing argument: “It doesn’t matterwho actually fired the bulletthatkilled Marlon Jones. Everybody helped. Anybody who helped in any way is equally guilty, equally guilty of complicity.” This statement, ifanything, compoundedthe errorin thejury instructions. We also reject Langford’s characterization ofthe record. Langford argues thatthejury’s acquittal on the firearm specifications under Counts One and Two demonstrate that the jury concluded thatLangford did notpossess a gun and was notthe principal offender. Therefore, he argues, the jury must have found him guilty of murder only under the accomplice-liability theory. We declineto drawthat inference. As the magistratejudge cogently explained, “[a]jury need not act either rationally or consistently when it returns a verdict in a criminal case.” Langford, 2013 WL 459196, at *14. We cannot question even inconsistent verdicts. United States v. Powell, 469 U.S. 57, 68 (1984). An inconsistentverdict may result because “thejury, convinced ofguilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.” Id. at 65. The magistratejudge correctly reasoned that we may not assume the theory on which the jury convicted Langford

— as an accomplice or as aprincipal. See Langford, 2013 WL 459196, at *15. 3. Finally, Respondent argues that any failure to instruct on an element ofthe offense was harmless error. A trial court’s failure to charge an element ofan offense is subject to harmless
error analysis. See Neder v. United States, 527 U.S. 1, 12 (1999). The Supreme Court has
12CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution further recognized that a trial court’s failure to instruct fully and accurately about the necessary
mens rea for accomplice liability is reviewed forharmless error. See California v. Roy, 519 U.s. 2, 3—4 (1996). On federal habeas review, the omission ofan element is not harmless error if there is “grave doubt about whether a trial error offederal law had ‘substantial and injurious effect or influence in determining thejury’s verdict.” O’Neal v. McAninch, 513 US. 432, 436 (1995) (quotingBrechtv. Abrahamson, 507 U.s. 619, 637 (1993)). Two cases illustrate how the harmless error doctrine operates in the context offaultyjury-instruction claims. In Neder, thejury convicted the defendant ofmultiple counts ofmail fraud, wire fraud, and filing false income-tax returns. 527 U.s. at 6. The Court ruled that the materiality ofa defendant’s falsehoods is an element offraud offenses. Id. at 20. Nonetheless, the Courtfoundthatthe trial court’s failureto instruct on materiality as an elementwas harmless
error because “overwhelming” trial evidence “incontrovertibly establishe[d] that [the defendant’s] false statements were material.” Id. at 16. Additionally, the defense’s theory did not turn on the materiality element, and the defense declined to argue that the false statements could be found immaterial. Id. In short, the erroneous instruction was harmless because the omitted element was both “uncontested and supported by overwhelming evidence.” Id. at 17. Here, the instruction is neitheruncontestednor supportedby overwhelming evidence. In Dawson v. UnitedStates, we reviewed a habeas petition in which a defendant claimed thathis convictions forunlawful firearmpossession were infirmbecause the trial court instructed thejury that it could convict on atheory ofconstructive possession. 702 F.3d 347, 349 (6th Cir. 2012). We found that giving the constructive-possession instruction was error because there “was no testimony suggesting that [the defendant] constructively possessed the firearm.” Id. at 350. Nonetheless, we held that the error was harmless because, “[v]iewing the record as aCaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution whole, it [wa]s clear the jury found [the defendant] guilty based on a theory of actual possession.” Id. In the instantmatter, we agree withthe magistratejudge thatthis “case appears to present just the opposite situation.” Langford, 2013 WL 459196, at *15. “It cannot be said that,” had the trial court not instructed thejury that it could convict Langford as an accomplice while also failing to instruct on the mens rea ofcomplicity, “thejury undoubtedly would have convicted petitioner of being a principal offender.” Id. The evidence at trial, if anything, is more consistent with a theory ofaccomplice liability than principal liability. As the Ohio Court of Appeals noted, Jones was killed by “a bullet fired from a Ruger .357 or other large gauge handgun.” Langford, 2010 WL 3042185, at *4 Nichole Smith testified that two men were shooting handguns at Jones and one was shooting an assault rifle. Id. One of the prison informants testifiedthatLangford confessed thatthree men were shooting atJones, thatLangford
was one ofthe three, and that Langford was shooting a .22-caliber handgun. Id. at 5. “[N]o testimony establishes that Langford fired the fatal shot.” Id. Although thejury was entitled to draw its own inferences and convict Langford as a principal offender, “it is at least as likely, if notmore so, that it convicted him as an aider and abettor.” Lang/ord, 2013 WL 459196, at *15. We decline to draw any conclusions aboutthe actual basis forthejury’s conviction. It suffices to note that the evidence was not great

— let alone “overwhelming,” Neder, 527 U.S. at 17

—that Langford was a principal offender. The failure to instruct on the mens rea of complicity, therefore, had a substantial influence in determining thejury’s verdict. 4. We recognize the high bar that a petitioner must clear before obtaining reliefon ajury instruction claim. “The burden ofdemonstrating that an erroneous instruction was so prejudicial
14CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution that itwill support a collateral attack on the constitutional validity ofa state court’sjudgment is
even greater than the showing required to establish plain error on direct appeal.” Henderson, 431 U.S. at 154. As such, only “extraordinary cases” merit granting habeas relief“based on
errors in statejury instructions.” Daniels, 501 F.3d at 735. In this case, the trial court failed to instructthejury on arequired element ofthe offense. This case does not involve any ofthe following: the failure to give a desired but unnecessary instruction, Henderson, 431 U.S. at 155; an express instruction affirmatively allowing thejury to convict on an invalid theory ofguilt, Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008); the failure to instruct on an element that was uncontested at trial, Neder, 527 U.S. at 17; or an instructionthat thrice correctly stated the law and once incorrectly stated it, Middleton, 541 U.S. at437-38. This case differs even from others involving claims that a trial court erred in incorrectly instructing on the mens rea ofcomplicity. Daniels v. Lafler, for instance, involved a defendant convicted of murder and assault for helping a friend burn down a house, and killing three children. 501 F.3d at 737 (Boggs, J.). On petition for habeas relief, the petitioner argued that
one passage in thejury instructions might have led thejury to convict him even ifit did not believe that the prosecution proved the mens rea requirement of complicity. Id. at 740. In rejecting the petitioner’s claim, we observed that the challenged instruction was not even necessarily inaccurate, as it “state[d] a necessary condition for guilt, not a sufficient condition.” Id. at 742. We also noted that there was no evidence that the challenged instruction constituted
an incorrect statement of Michigan law. Id. Here, in contrast, even Ohio’s model jury instructions suggest that the trial court’s failure to instruct on the mens rea ofcomplicity was significant. The model instruction states: The defendant is charged with complicity in the commission ofthe offense of (spec)5.’ offense). Before you can find the defendant guilty, you must find beyond 15CaseNos. 13-3855, 13-3857 Lan

### gfordv. Warden, Ross CorrectionalInstitution
a reasonable doubt, that

. . . the defendant (insert culpable mental state 

### fone is requiredfor the commission oftheprincipaloffense) [aided or abetted] another in committingthe offense of(specify offense). 2-OJI-CR523.03. Here, thetrial court improperly insertedthe culpable mental state before the wrong verb. Additionally, in Daniels, we noted that the trial court accurately stated the mens rea requirement twice. Daniels, 501 F.3d at 742. This “made clear that thejury could not convict [the defendant] without finding that” he shared the mental state ofthe principal offense. Id. at 742-43. “[O]ne arguably misleading statement ofthe mens rea requirement,” we said, was not “likely to have caused thejury to ignore repeated prior statements ofthe correct requirement.” Id. at 743. Here, the trial court failedto properly instructthejury on the mens reaofcomplicity. B. Pre-IndictmentDelay Langford also seeks relief on the ground that the delay between the offense and the indictment violates his right to a fair trial and to present a defense. Jones was shot on July 18, 1995. A grandjury indicted Langford on October 24, 2008. Langford argues that this thirteenyear delaywas unconstitutional. “[T]he Due Process Clause of the Fifth Amendment [may] require dismissal of [an] indictment ifit were shown

. . . thatthe pre-indictment delay

. . . caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” United States v. Marion, 404 U.S 307, 324 (1971). It is insufficient for a petitioner merely to show that pre-indictment delay caused him actual prejudice. Due process does not “ba[r] prosecution whenever a defendant suffers prejudice as a result ofpreindictment delay.” United States v. Lovasco, 431 U.S. 783, 789 (1977). Unless a petitioner can show that the prosecution sought a “tactical advantage” or acted with “reckless 16CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution disregard” to their rights, “prosecut[ing] a defendant following investigative delay does not deprive him ofdue process, even ifhis defense might have been somewhat prejudiced by the lapse oftime.” Id. at795 n.17, 796. Langford argues that the pre-indictment delay caused him prejudice because certain evidence was no longer available at the time ofhis trial. During the thirteen-year period, law enforcement destroyed the bullet that killed Jones and a cartridge box containing Langford’s fingerprint. Langford, 2010 WL 3042185, at *2. Langford also argues that three defense witnesses died during the years priorto his indictment. Langford submits thatDeshaun Williams would have testified that Langford was not involved in Jones’ homicide. Langford, 2010 WL 3042185, at *2. Don Gentry (known as “Big Mike”) purportedly had informationthat Langford
was not the fatal shooter. Langford, 2010 WL 3042185, at *3 Langford submits that Paul Michael Ross (also known as “Big Mike”) would have testified thathe provided a .357 Magnum to an individual otherthan Langford. Langford, 2010 WL 3042185, at *3• All three individuals diedpriorto Langford’s 2008 indictment. The trial court applied Lovasco and concluded that Langford did not demonstrate actual prejudice from the delay. Langford, 2010 WL 3042185, at *3 The Ohio Court ofAppeals, applying a four-factor test derived from Barker v. Wingo, 407 U.s. 514 (1972), similarly determined that Langford suffered no prejudice as a result ofthe delay. Id. at *3..5 As the magistratejudge correctly noted, the Ohio Court ofAppeals applied the incorrect legal standard. See Langford, 2013 WL 459196, at *7• “Pre-indictmentdelay andpost-indictment delay present separate issues.” UnitedStates v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009). But, as noted, we do not evaluate a state court’s legal reasoning, however flawed. See Harrington, 131 5. Ct. at 784-85. “When a federal claim has beenpresented to a state court and the state court has denied
17CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution relief, it may be presumed that the state court adjudicated the claim on the merits.” Id. Our review is ofthe state court’s decision thatLangford’s pre-indictment-delay claim fails. The magistratejudge concluded, after a thorough analysis ofthe trial court’s evidentiary hearing on Langford’s motion to dismiss, that Langford may have suffered some prejudice as a result ofthe delay. See Langford, 2013 WL 459196, at *7..9, It is unnecessary to repeat that analysis here. For purposes of appeal, we assume without deciding that Langford suffered prejudice. But “the due process inquiry must consider the reasonsfor the delay as well as the prejudice to the accused.” Lovasco, 431 U.S. at 790 (emphasis added). Absent an intent on the State’s part to delay prosecution in orderto gain an advantage over the defendant, no amount of prejudice canjustify dismissing a case forpre-indictment delay. Langford, 2013 WL 459196, at

* 10. The trial court deteimined that the prosecution’s delay was not undertaken to gain a tactical advantage overLangford. The trial court stated: “I don’tknow how orwhythe State was not able to proceed with its case orwhy or how it chose notto pursue this case again until 2008.” The Ohio CourtofAppeals did not address the reasons forthe delay but affirmed the trial court’s ruling. Langford, 2010 WL 3042185, at *5, The magistrate judge correctly noted: “[T]he ultimate result reached by the state courts is entitled to AEDPA deference even ifthe analytical process was flawed in some respects.” Langford, 2013 WL 459196, at 1o. Langford offers no evidence suggesting that the prosecution delayed the indictment in order to gain tactical advantage over the accused. Lovasco, 431 U.S. at 795. Instead, Langford asks us to presume bad faith on the part ofthe prosecution because “the only rational explanation is that the State delayed indicting Langford in order to gain a tactical advantage.” We decline to draw that inference. Itis incumbent on Langfordto show thatthe delay was prompted by a desire to gain a
18CaseNos. 13-3855, 13-3857 Lang/ordv. Warden, Ross CorrectionalInstitution tactical advantage at trial. United States v. Brown, 959 F.2d 63, 66 (6th Cir. 1992). Where a defendanthas no direct evidence ofbad faith, we have previously declined to infer an improper prosecutorial motive. Id. Even a showing that the prosecution was prepared to proceed to trial earlierthan it did is insufficient to meet the Lovasco standard. Lovasco, 431 U.S. at 793. The magistrate judge speculated that part ofthe thirteen-year delay may have been the product oflack ofinterest or lack ofeffort. 

### Langford, 2013 WL 459196, at * 11. But, the magistratejudge correctly noted, “that is not the same as conduct designed to make it more difficult for a defendantto mount a defense.” Id. For reasons more fully set forth in the magistrate judge’s Report and Recommendation, there is no basis to conclude that the prosecution delayed indictment in order to gain a tactical advantage. See id. The essential point is that the state court’s presumptive conclusionto thateffect is notunreasonable. C. Ineffective Assistance ofAppellate Counsel A criminal defendanthas the rightto effective assistance ofcounsel on afirstappeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). Langford argues thathe is entitled to habeas reliefbecause his counsel on direct appeal was ineffective for failing to raise several issues. Langford argues that his appellate counsel should have raised additional arguments about the jury instructions, an argument that a witness’ prejudicial comment warranted a mistrial, and an argument that the trial court erred in failing to suppress certain statements. Langford presented these arguments to the Ohio Court ofAppeals in his motion to reopen the appeal. See Lang/ord, 2013 WL 459196, at *16..18. Under federal law, to establish ineffective assistance of counsel, a criminal defendant must first show that “counsel’s representation fell below an objective standard of
19CaseNos. 

### 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). This inquiry looks at whethertrial counsel fell below the standard ofa competent attorney. Id. at 688-91. There is a strong presumption that counsel’s conduct falls within the wide range ofreasonable professional assistance. Id. at 689. Secondly, to succeed on an ineffective-assistance claim, a criminal defendant must show that counsel’s ineffectiveness prejudiced him. Id. at 692. That is, the defendant must show thatthere is areasonable probabilitythat, but for counsel’s unprofessional errors, the result oftheproceedingwould have been different. Id. at 694. Itis very difficultfora defendantto surmountStrickland’s high bar. See Cullen v. Pinhoister, 131 S. Ct. 1388, 1404-08 (2011) (rejecting defendant’s ineffective-assistance claim even when counsel failed to perform any investigation before a penalty-phase hearing that resulted in a death sentence); see also Bobby v. Van Hook, 558 U.S. 4, 9-13 (2009) (rejecting defendant’s ineffective assistance claim based on counsel’s failureto investigate morethoroughly andpresentmore mitigating evidence),
rev‘g VanHookv. Anderson, 560 F.3d 523 (6th Cir. 2009). 1. Jury Instructions Langford argues that appellate counsel was ineffective for failing to argue that the trial court erred in declining to instruct the jury that mere presence at the scene of the crime is insufficientto convictunder atheory ofaccomplice liability. The trial court instructed thejury: “[M]ere presence can be enough [to convict) if it is intended to and does aid the primary offender.” The Ohio Court ofAppeals held that “thejury charge given would not have allowed findings of guilty based solely upon [Langford’s] presence.” Langford, 2013 WL 459196, at

* 17. The magistratejudge, independently reviewing the issue, agreed “thatthejury instructions made it sufficiently clear that in orderto find petitioner guilty on a complicitytheory, he had to have committed some act in furtherance ofthe crime.” Id. at * 19. The magistratejudge further
20CaseNos. 

### 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution stated: “Even the specific language to which [Langford] objected—that ‘mere presence can be enough if it is intended to and does aid the primary offender’—told thejury that more than presence (i.e. the fact that the complicitor’s presence actually aided the primary offender) was needed in orderto convict.” Id. Langford relies on our statementthat “mere presence at the scene ofthe crime

. . . [is] not enough to convict a defendant of aiding and abetting.” United States v. Head, 927 F.2d 1361, 1373 (6th Cir. 1991). Additionally, Langford argues that the trial court gave an incorrect instruction on causation. The trial court instructed thejury: “Cause is an act or failure to act which the natural and continuous sequence directly produces the death and without which it would not have occurred. Cause occurs when the death is the natural and foreseeable result of the act or failure to act.” Langford submits that Ohio law requires a different causation instruction. The Ohio Court ofAppeals denied relief, stating: “Causation was notreally an issue in the case. The victim was shotto death.” Langford, 2013 WL 459196, at *17. The magistrate judge similarly determined that this claim “would not likely have succeeded ifraised on direct appeal.” Id. at *21. We agree. Further, Langford cites no case, state or federal, indicating that the trial courtincorrectly chargedthejury on causation. Finally, Langford argues that appellate counsel should have argued that the trial court erred in declining to give an instruction advising thejury that it mayplace diminished weight on the testimony ofjailhouse informants. The trial court gave a general instruction, telling thejury to “considerthe credibility ofwitnesses” and to consider “interest and bias, ifany, togetherwith all the facts and circumstances surrounding the testimony.” The Ohio Court ofAppeals denied Langford’s claim on the ground that Ohio does not required a special charge to be given when cellmates or fellow inmates testify. 

### Langford, 2013 WL 459196, at *18. The magistratejudge
21CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution determined thatthis issue would nothave likely succeeded ifraised on direct appeal. Id. at *21. Langford, citing State v. Nelson, 303 N.E.2d 865 (1973), claims that Ohio law requires a trial court to give a requestedjury instruction ifit contains a correct statement oflaw. Nelson stands forno suchproposition. 2. Prejudicial CommentWarranting Mistrial On direct examination, the prosecution asked one ofthe prison informants why Langford discussed his involvement in Jones’ murder. The witness responded: “When he first brought it up to me, he used to say things like he had killed someone before, so.” The Ohio Court of Appeals found that the trial court “sustained an objection to the statement because it could be construed as referring to one or more other homicides and made it clear to thejury that they should not consider the statement for any purpose whatsoever.” Langford, 2013 WL 459196, at *17. The trial court denied Langford’s motion for a mistrial. Langford argues that appellate counsel was ineffective forfailingto argue thatthis was error. The Ohio Court ofAppeals determined that the trial court was within its discretion to deny a mistrial. Langford, 2013 WL 459196, at *18. The magistratejudge noted that a trial court’s rulingto deny amistrial “will be sustained on appeal ‘absent an abuse ofdiscretion.” Id. at *20 (quoting State v. Treesh, 739 N.E. 2d 749, 773 (2001)). After thoroughly analyzing the exchange betweentheprosecutorandthe witness attrial, the magistratejudge reasoned: Given the ambiguous nature ofthe reference, the immediate objection, the lackof any additional testimony or argument about other murders, and the heavy burden which would restupon petitionerin the appeals courthadthis issue been raised

— not to mention the appeals court’s determination that it found the ruling to have been within the trialjudge’s discretion

— it is not unreasonable to conclude that even if appellate counsel had assigned this matter as error, it would not have affectedthe outcome ofpetitioners appeal.

22CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution Id. Langfordpresents no basis forquestioning this conclusion. 3. Suppression ofLangford’s Statements Langford also argues that appellate counsel was ineffective for failing to argue that the trial court erred in not suppressing certain statements thatLangford made to law enforcement in violation ofMiranda. In these statements, Langford sometimes acknowledged being nearby the
scene ofthe crime but denied being the shooter. Langford, 2013 WL 459196, at *17. Langford did nottestify attrial. The Ohio Court ofAppeals denied Langford’s claim, stating: “Nothing in the record before us indicates that the trial court should have sustained the motion to suppress Langford’s statements orthatthe statements were actuallyharmful to Langford’s case.” Id. The magistratejudge determinedthateven ifany statements aboutbeing nearthe crime scene merited suppression, “there was enough other evidence placing petitioner at or near the scene ofthe crime that any statements in which he conceded as much would have been largely cumulative.” Id. at2l. Our review ofa state court’s determination that a criminal defendant received effective assistance is particularly deferential. We do not apply Strickland directly. Rather, the pivotal question is whether the state court’s application ofthe Strickland standard was unreasonable. Harrington, 131 S. Ct. at 785. Were we to apply Stricklanddirectly, the analysis would be no differentthan if, forexample, this Court were adjudicating a Stricklandclaim on directreview of
a criminal conviction in a United States district court. Id. The combination of the highly deferential standards of Strickland and of §2254(d) makes for “doubly deferential judicial review.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Inthis case, the Ohio courtwas not unreasonable in concluding that Langford’s counsel was not ineffective for failing to raise the above issues.
23CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution Additionally, appellate attorneys are not required to raise all claims desired by a defendant ifcounsel, as a matter ofprofessionaljudgment, decides not to present those points. Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Caverv. Straub, 349 F.3d 340, 348 (6th Cir. 2003). Langford also cannotprevail on any ineffective-assistance claim ifthe underlying issues lack merit. See Moore v. Mitchell, 708 F.3d 760, 777 (6th Cir. 2013). Accordingly, Langford cannotobtain habeas reliefonthis ground. IV. CONCLUSION Supreme Court law requires that ajury find a defendant guilty ofevery element ofthe crime charged. Gaudin, 515 U.S. at 522-23. Under Ohio law, an accomplice must act with the
same criminal intent as a principal guilty ofthe crime. Johnson, 754 N.E.2d at 801. The trial court did not instructthejury that complicity has a mens rea element. The state court’s decision to the contrary is unreasonable in light ofthe language ofthejury instructions and the record as a whole. The state court’s decisions on Langford’s other claims, though perhaps not free from questioning, are notunreasonable applications ofSupreme Courtlaw. We agree with the magistratejudge’s thorough Report and Recommendation and with the districtcourt’s decision. Accordingly, weAFFIRM the districtcourt’sjudgment.

24CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution BOGGS, Circuit Judge, dissenting. The actualjury instruction that was given read: “Before you can find the defendant guilty ofa crime as acomplicitor or an aider and abettor, you must find

. . . that

. . . the defendant aided or abetted another in purposely committing the offenses.” All parties agree thatthe idealjury instructionwould have read: “Before you can find the defendant guilty ofacrime as a complicitoror an aiderand abettor, you mustfind.

. . that. the defendantpurposely aided or abetted another in committingthe offenses.” Because I do not believe thatthe misplacementofthe word “purposely” by five words gives riseto habeas relief, I respectfully dissent. On October 23, 2009, the defense rested its case. The trialjudge, defense counsel, and the prosecutorthen held apreliminary discussion aboutthejury instructions. Langford’s counsel told thejudge that the prosecutor had given him a proposed version ofthejury instructions the previous day. Langford’s counsel stated that he had reviewed the prosecution’s version but had
some objections and requested modifications. The judge invited defense counsel and the prosecutor into chambers to do a “preliminary sort throughthose issues.” Both counsel agreedto do so, andthejudge adjourned court. Court resumed laterthat afternoon, and the parties conducted an on-the-record review of thejury instructions. Thejudge noted that defense counsel and the prosecutorhad provided the judge separate copies of the jury instructions. As the judge explained, defense counsel “integrated thosejury instructions to include additional instructions that he would like to have provided to thejury as well as deletions that he would like for the Court to consider that were

‘This instruction tracks Ohio’s modeljury instruction, which states: “Before you can find the defendant guilty, you must find beyond a reasonable doubt, that

. . . the defendant (insert culpable mental state ifone is required for the commission ofthe principal offense) [aided or abettedi anotherin committingthe offense of(specify offense).” 2-OJI-CR 523.03. 25CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution originally provided by the State.” The parties agreed to work from that integrated copy in their preliminary review ofthejury instructions. During this discussion, the judge asked counsel if they had any objections to the complicity section ofthe proposedjury instructions. Langford’s counsel flyspecked the very issue thatnow forms the basis ofLangford’s habeas petition. The following discussion occurred amongthejudge, theprosecutor (Mr. Lowe), and defense counsel (Mr. Gatterdam). THE COURT: I think that there was the complicity issue that was discussed in chambers. MR. LOWE: Okay. Judge, the complicity

-- I think Mr. Gatterdam agrees that we can do and/or, butI thinkwhatwe decided to do was I thinkwe were going to take out “solicited or procured another to commit the offense or,” and I think we arejust goingto go with “aiding and abetting anotherin committingthe offenses.” THE COURT: Okay. Mr. Gatterdam, do you see where that text is, or do you have any comment? MR. GATTERDAM: I do. I guess I preliminarilyjust want to make sure that

-- and until we see it, I guess I don’tknow whetherI can respond. The complicity section says thatyou need to insert the culpable mental state and then go into the aided or abetted language and definitions, and I presumethatwill be done we revise. MR. LOWE: Yes. MR. GATTERDAM: So I probably will have no objection, but as it is now, I’m not clear. MR. LOWE: We agree amental state needs to be inthere. (emphasis added). Thus, it appears thatthis version ofthe proposedjury instructions omitted the
mens rea elementforcomplicity. Langford’s counsel specifically requestedthatthe court “insert the culpable mental state and then go into the aided or abetted language and definitions.” The judge and both parties agreed to conduct a second on-the-record review of the revised jury instructions prior to closing arguments the following week. At the end of the discussion,

26CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution Langford’s counsel assumed responsibility for e-mailing arevisedversion ofthejury instructions to theprosecution. Thejudgethen adjournedcourtuntil Monday afternoon. Court resumed as scheduled on Monday afternoon. The judge noted that she had received a revised version ofthe jury instructions from the prosecution. Thejudge and the parties conducted a second on-the-record review ofthe instructions, including the complicity instruction. The following discussion occurred: THE COURT: Anything else, Counsel, we needto change? MR. GATTERDAM: Ihave atypo onpage 11. I don’tknow ifyou’re atpage 11 now or 12. It was the last full paragraph, starts with, “Before you can find the defendantofa crime as a complicitor.” THE COURT: Yes. That’s still page 11. MR. GATTERDAM: On or about the 18th day ofJuly, blah-blah, Agg. Murder or Murder or aided and abetted another in “knowingly committing” instead of “committed. THE COURT: All right. Gotyou. Okay. (emphasis added). Thus, Langford’s counsel examined the very sentence that is now at issue— closely enough, in fact, to catch a typo. And yet counsel made no objection about the word “purposely” being in the wrongplace in the sentence. Additionally, any error in thejury instructions is harmless error, in light ofthe evidence that was presented attrial. A trial court’s failure to charge an element ofan offense is subjectto harmless-error analysis. Nederv. UnitedStates, 527 U.S. 1, 12 (1999). The Supreme Courthas, in particular, recognized that a trial court’s failure to instruct fully and accurately about the necessary mens rea for accomplice liability is reviewed for harmless error. See California v. Roy, 519 U.S. 2, 3—4 (1996). On habeas, an error is harmless unless it “had substantial and injurious effect or influence in determining thejury’s verdict.” Brechtv. Abrahamson, 507 U.S. 619, 637 (1993).

27CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution In Dawson v. UnitedStates, we reviewed a habeas petition in which a defendant claimed that his convictions for unlawful firearm possession were invalid because the trial court instructed thejury that it could convict on a theory ofconstructive possession. 702 F.3d 347, 349 (6th Cir. 2012). We found that giving the constructive-possession instruction was error because there “was no testimony suggesting that [the defendant] constructively possessed the firearm.” Id. at 350. Nonetheless, we held that the error was harmless because “[v]iewing the record as awhole, it [wa]s clearthejury found [the defendant] guilty based on atheory ofactual possession.” Ibid. Here, the evidence attrial established that the “F and L boys” beat up Langford and that Langford, therefore, had a motive to seekrevenge. Additionally, Nichole Smithtestifiedthat she witnessedLangford shooting atthe F and L group. And two federal prisoners, Jason Arnold and Isaac Jackson, testified that Langford confessed to his involvement in Jones’s death. Thejury certainly was entitled to disbelieve this testimony, but there was no evidence at all to support convictionunder atheory ofaccomplice liabilitywhere Langford, say, performed in aproduction ofHamlet and, thereby, unwittingly motivated Jones’s shooter to take purposeful action and to avenge immediately the attack on Langford. That is, there was simply no evidence that would have allowedthejuryto convictLangfordundera strict-liability conception ofcomplicity. It is true that the instruction that was given does not track Ohio’s model instruction. But “the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71—72 (1991). “Federal habeas courts therefore do not grant relief, as might a state appellate court, simply because the instruction may have been deficient in comparison to the [state] model.” Id. at 72. The essential question is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due
28CaseNos. 13-3855, 13-3857 Langfordv. Warden, Ross CorrectionalInstitution process.” Ibid. It is insufficient “that the instruction is undesirable, erroneous, or even universally condemned.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (internal quotation marks and citation omitted). Our court has said that “we may grant the writ based on errors in statejury instructions only in extraordinary cases.” Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007). In Daniels,
we denied a claim similarto Langford’s “even though one sentence ofthe instructions contained
a confusing and arguablymisleading statement ofthe law.” Id. at 737. Here, thejury instruction that was given was not the exact one that ideally would have been given. It was not so wrong that any ofthose involved, whose discussions indicated that they were trying to get it right, noticed the displacementofone word. That does notprovide a basis forhabeas relief. We must consider only “whether there is a reasonable likelihoodthat thejury has applied the challenged instruction in a way that violates the Constitution.” Estelle, 502 U.S. at 72 (internal quotation marks omitted) (emphasis added). Because I do not believe that there is such a likelihood in light ofthe record as a whole, Irespectfully dissent.

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