NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0819n.06 No. 09-1251 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT ERI C MACON, Petitioner-Appellant,

v. BA RRY DAVI S, W arde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: KETHL EDGE, STRANCH, Circuit J udg es; and GWI N, District J udg e. *

Per Curiam. Eric Macon, a Michig an s tate prisoner, appea ls a district court judgme nt deny ing his pe tition for a writ of ha beas c orpus, filed pursua

nt to 28 U.S.C . § 2254. Macon is serving a sentenc e of life imprisonment arising out of his jury conviction in 2001 fo r felony murder and rela ted firea rms char g es. The crime in question took place on Aug ust 1 4 , 2000. Testimony at trial showed that, at some point that evening , Macon, the dece dent, and Donald Grimmet wer e all at Grimmet’s ap artment. Grimmet testified that Macon left, and he and the deced en t fo l l o wed a few minutes later. After opening the door to the stairwell, the pair wer e

acc osted by Macon, who pulled a g un and order ed them to “g ive it up.” Macon then fired a shot at Grimmet, which missed, and two shots that struck the dece dent in the leg and che st.

The Honor able James S. Gwin, United States District J udg e for the Northe rn District of * Ohio, sitti ng by

desig nation.No. 09-1251

Macon v . Davis After unsucce ssfully pursuing a direc t appea l and collater al relief in the state courts, Macon filed a fede ral habea s corpus petition raising ten issues. The district court denied the petition. This
court initially denied Macon a cer tific at e of appea lability , but on rehe aring , it cer tified one of Macon’ s ten issues: whether the prosec utor denied Macon a fair trial by knowing ly using perjure d testimony . Counsel was appointed f or Mac on, and the issue ha s been f ully briefe d. We revie w the denial of a petition for a writ of habea s corpus de novo. Allen v. Y ukins , 366 F.3d 396, 399 (6th Cir. 2004)

. I n order to e stablish the claim prese nted here , Macon is r equire d to show th at t h e p ro secutor prese nted testimony that the prosec utor knew was false, and that the testimony was mate rial. See A krawi v. Booke r , 572 F.3d 252, 265 ( 6th Cir. 2009). M a con points to three instances of alleg ed perjury

. First, Grimmet testified at the preliminar y hear ing that h e d i d n o t reme mber the last time he saw Macon prior to the date of the crime. Howeve r, in his ear lier statement to the police, Grimmet said that he had arg ued with Macon the day befor e the crime. The alleg edly perjure d testimony at the preliminary hear ing could not have denied Macon a fair trial beca

use it was not prese nted at trial. See United States v. Angel , 355 F.3d 462, 475 (6th Cir. 2004) (holding that alleg ed perjury befor e the g rand jury was not materia l beca use it could not have a ffe cted the jur

y at trial). Next, Grimmet testified that he was locke d in the stairwell following the shooting and had to be let in by a neig hbor. Howeve r, the neig hbor testified that, when she came out into the hall to investiga te the g unshots, Grimmet was walking down the hall. I t is not clear tha t Macon prope rly
prese nted this arg ument to the state courts. I n any event, beca use both of these witnesses wer e hear d by the jury , it was up to the jury to de termine which witness was cre dible. See, e.g., United States

v. Scarborough , 43 F.3d 1021, 1026 (6th Cir. 1994) (noting that “mer e inconsistencies in testimony
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Macon v . Davis by g overnme nt witnesses do not establish knowing use of false testimony ”). Moreove r, the issue of whether the neig hbor opene d the stairwe ll door for Gr immet was not material to Mac on’s g uilt. Finally , Grimmet’s brother, J ames, testified t h at Macon left the apar tment a few minutes befor e Donald Grimmet and the dece dent. Howeve r, in an unsworn statement he g ave to the police immediately afte r the crime, J ames stated that all three men left the apar tment toge ther. Macon has
not shown that the prosec utor knew or should have known that the trial testimony , as opposed to the

ear lier statement, was false. See Foley v. Parker , 488 F.3d 377, 392 (6th Cir. 2007). J ust as in the

case of mere inconsistencies betwee n g overnme nt witnesses, mere inconsistent statements by the

same witness are insufficient to establish indisput able f alsity

. See, e.g., Rosencrantz v.Lafler , 568 F.3d 577, 585- 87 (6th Cir. 2009); Coe v. Be ll , 161 F.3d 320, 343 ( 6th Cir. 1998). The Michig an Court of Appea ls did not unrea sonably apply clea rly established fede ral law when it conc luded that Macon had not demonstrated that the prosec utor knowing ly prese nted perjure d testimony

. See W illiams v. Taylor , 529 U.S. 362, 402-03 (2000). Acc ording ly , the district court’s judg ment deny ing this petition for a writ of habe as cor

pus is affirme d.

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