RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0269p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS DAVID RICHARDSON,

Petitioner-Appellant,

v.

CARMEN DENISE PALMER, Warden,

Respondent-Appellee.

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No. 18-1434

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:14-cv-01250—Paul Lewis Maloney, District Judge.

Argued: August 7, 2019

Decided and Filed: October 24, 2019

Before: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: David L. Moffitt, LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES, 

Bingham Farms, Michigan, for Appellant. Linus Banghart-Linn, OFFICE OF THE MICHIGAN 

ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: David L. Moffitt, 

LAW OFFICES OF DAVID L. MOFFITT & ASSOCIATES, Bingham Farms, Michigan, for 

Appellant. Andrea M. Christensen-Brown, OFFICE OF THE MICHIGAN ATTORNEY 

GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

BERNICE BOUIE DONALD, Circuit Judge. In May 2008, a Michigan jury convicted 

Thomas Richardson of first-degree murder for killing his wife, Juanita Richardson, by causing 

>
No. 18-1434 Richardson v. Palmer Page 2

her to fall from a cliff in Pictured Rocks National Park. After exhausting his state remedies, 

Richardson filed a habeas petition with the United States District Court for the Western District 

of Michigan. Pursuant to the magistrate judge’s recommendation, the district court denied the 

petition but granted a certificate of appealability (“COA”) on Richardson’s claim of prosecutorial 

misconduct. This court subsequently granted an additional COA on Richardson’s claims of 

ineffective assistance of trial and appellate counsel for failing to argue that a witness’s testimony 

was obtained as a result of an illegal, warrantless search. 

We affirm the district court’s denial of Richardson’s petition. Richardson has failed to 

demonstrate that the Michigan Court of Appeals’ rejection of his claims of prosecutorial 

misconduct was objectively unreasonable based on Supreme Court precedent. Additionally, 

Richardson has failed to demonstrate that the state court misapplied Supreme Court precedent in 

finding that neither his trial nor appellate counsel was ineffective.

I.

Both Richardson and the government have adopted the underlying facts as set forth by 

the Michigan Court of Appeals: 

[Richardson] was convicted of killing his wife, Juanita Richardson, by causing 

her to fall from a cliff in Pictured Rocks National Park on June 22, 2006. 

Defendant initially told a park employee that the victim was missing from their 

“honeymoon spot” at the cliff when he returned from a visit to the restroom. 

After the victim’s body was recovered from the rocks below the cliff, defendant 

gave different accounts of the event to law enforcement officers, during which he 

reported both that he observed the victim intentionally jump from the cliff and 

that he observed her accidentally fall from the cliff. After the incident, defendant 

also gave conflicting accounts of the event to various relatives, former and current 

coworkers, and other acquaintances. The medical examiner concluded that the 

victim’s fatal injuries were equally consistent with an accidental, suicidal, or 

homicidal fall from the cliff. The prosecutor’s theory at trial was that defendant 

may have choked the victim to the point of unconsciousness and then dropped her 

over the edge, or used some implement to knock her over the edge. The defense 

theory was that the victim accidentally fell from the cliff.

People v. Richardson, No. 287857, 2010 WL 4320392, at *1 (Mich. Ct. App. Nov. 2, 2010). 

Because our analysis will involve whether Richardson was actually prejudiced by the admission 
No. 18-1434 Richardson v. Palmer Page 3

of certain evidence that he alleges was the result of a Fourth Amendment violation, however, a 

more in-depth summary is necessary. 

Richardson was charged with first-degree murder and manslaughter.1 The prosecution’s 

theory was that Richardson was a womanizer, who had previously separated from his wife, 

Juanita, to be with another woman. He treated his wife poorly, openly insulting her, committing 

acts of domestic violence, giving her a black eye, and threatening to kill her. He was, at the time 

of his wife’s death, actively pursuing at least one other woman, Keli Brophy, whom he had asked 

to “wait for him” and told he could “take care of.” Brophy, however, had told Richardson that if 

he wanted to be together, then his “ex-wife couldn’t be alive.” Richardson told Brophy that his 

wife had breast cancer, which she did not, and that she would be dead by Christmas, which she 

was.

Shortly before their fateful trip to their “honeymoon spot,” Juanita reported that her 

husband had “been ragging on” her to “get a will.” Richardson requested weekend appointments 

to meet with attorneys to draft a will the weekend before their trip. As soon as Richardson 

learned that a will was not necessary to avoid probate in the event of one of their deaths because 

they owned their property jointly, Richardson’s insistence on having the wills drafted 

“completely dissipated.”

On June 22, 2006, Richardson and his wife, Juanita, travelled to their “honeymoon spot” 

at Pictured Rocks National Lakeshore on the Upper Peninsula in Michigan. In the time after 

Juanita’s death, Richardson described a variety of possible scenarios that could have led to her 

fall. In one, he went to the restroom, only to come back and see her body on the rocks below. 

In another, he returned from the restroom to find her standing on the cliff. “[A]s he approached 

the cliff site, their eyes met, she said something about – about God, and turned and jumped off of 

the cliff.” In yet another version, he returned to find his wife “standing at the edge of the cliff” 

before she “just kind of fell over.” In additional variations of these accounts, Richardson 

 

1Richardson took “no issue with the facts as summarized by the magistrate judge.” (Order Adopting R. 

& R., R. 40, PageID 11937.) In a 211-page Report and Recommendation, the magistrate judge thoroughly described 

and summarized the evidence and witness testimony presented at trial. Richardson v. Palmer, No. 1:14-CV-1250, 

2017 WL 9605116 (W.D. Mich. Dec. 19, 2017).
No. 18-1434 Richardson v. Palmer Page 4

sometimes passed or blacked out after seeing Juanita at the bottom of the cliff. In explaining 

these inconsistent stories, Richardson claimed to suffer from memory loss due to a work-place 

injury. Many witnesses had never observed any other evidence of memory loss, nor heard 

Richardson mention it before Juanita’s death. In discussing Richardson’s inconsistent stories, 

the prosecution’s expert witness stated that, based on her review of the research, “in reports of 

dissociative amnesia, typically once the memory returns, it’s there, it’s returned.” That witness 

found that it led to “a conclusion that telling different stories at different times is a matter of 

choice, not a matter of memory suddenly disappearing again.”

After Juanita’s death, Richardson began pursuing other women more aggressively. 

According to testimony from Brophy and her daughter, Richardson appeared uninvited at 

Brophy’s residence. As a gift, he even brought a plant from Juanita’s funeral. An intelligence 

analyst testified that there were fifty-two calls between Richardson and Brophy in the weeks 

following Juanita’s death. Also, according to testimony from Tammy Sian, she and Richardson 

became involved in August 2006, two months after his wife’s death. Additionally, “several 

weeks after Juanita Richardson’s death,” Richardson approached the branch manager of his bank 

to discuss “negotiating memorial fund checks that he had received.” Apparently, he had told 

other employees at the bank that he “wanted to cash” the memorial checks and was told that they 

“couldn’t just be cashed, they needed to go into a memorial fund set up specific[ally] for that.” 

Still, Richardson asked a bank employee if he could take her out to dinner, within months of his 

wife’s death. When his offer was rejected, he sent the employee a card with his phone number. 

Finally, two months after Juanita’s death, Richardson unknowingly met an undercover agent 

when getting dinner with a larger group. Four months after Juanita’s death, after exhibiting a 

“high” level of interest in the undercover agent and “regularly” suggesting that the two meet, 

Richardson met with the agent alone. 

After being charged, Richardson was housed in a cell with two witnesses, both of whom 

testified that he had said that the prosecuting attorney would “be the next bitch to go off a cliff.”2

 

2This threat was made before either witness had entered into an agreement with the government to wear a 

recording device or act at the direction of law enforcement. 
No. 18-1434 Richardson v. Palmer Page 5

The defense, meanwhile, argued that Juanita had accidentally fallen off the cliff. Defense 

witnesses testified that Richardson and Juanita had a good marriage and “liked to argue, but they 

loved to make up.” Richardson was active in a bible study group. Juanita had allegedly 

confided in a friend from church that she had previously had an affair. 

The magistrate judge’s thorough and well-reasoned explanation of the case contains 

countless other examples of the kinds of evidence discussed above. Still, such a summary is 

appropriate for the necessary consideration of whether Richardson was prejudiced by his 

allegedly ineffective counsel. 

In the end, the jury found Richardson guilty of first-degree murder. He was sentenced to 

life in prison without the possibility of parole. The Michigan Court of Appeals affirmed his 

conviction, as did the Michigan Supreme Court. Richardson subsequently moved for relief from 

judgment. The trial court denied the motion. Both the Michigan Court of Appeals and Michigan

Supreme Court denied Petitioner leave to appeal, finding that he “fail[ed] to meet the burden of 

establishing entitlement to relief under MCR 6.508(D).”3 People v. Richardson, No. 316802, 

Order (Mich. Ct. App. Dec. 27, 2013); People v. Richardson, 856 N.W.2d 12 (Mich. 2014). 

Richardson sought a writ of habeas corpus in the Western District of Michigan pursuant 

to 28 U.S.C. § 2254, asserting fourteen claims of relief that he had previously raised. The 

magistrate judge recommended denying relief, and the district court adopted the magistrate’s 

report over Richardson’s objections. In doing so, however, the court granted a COA on 

Richardson’s allegation of prosecutorial misconduct. This Court subsequently expanded that 

COA to include the additional issue of whether trial and appellate counsel were ineffective for 

failing to argue that some testimony described above was obtained as a result of an illegal, 

warrantless search.

This panel is therefore considering two discrete claims: (1) Whether the Michigan court’s 

rejection of Richardson’s claim of prosecutorial misconduct was objectively unreasonable; and 

 

3Mich. Ct. R 6.508(D) places the burden on defendants to establish that they are entitled to the requested 

relief based upon, among other things, a retroactive change in law or prejudice from irregularities that either could 

not be argued on appeal in a prior motion or for which the defendant has good cause for failing to argue.
No. 18-1434 Richardson v. Palmer Page 6

(2) whether Richardson’s trial and appellate counsel performed ineffectively by failing to argue 

that Tammy Sian’s testimony was obtained as a result of an illegal, warrantless search. 

Like the state trial, appellate, and supreme courts, as well as the federal magistrate and 

district judges before us, we find that Richardson’s claims of prosecutorial misconduct are 

meritless and that the state appellate court was not objectively unreasonable to reject the 

argument. Further, we find that trial and appellate counsel were not ineffective for failing to 

argue that Tammy Sian’s testimony was obtained through a warrantless search, and even if 

counsel had been ineffective, Richardson was not prejudiced. 

II.

As a preliminary matter, both the government and Richardson claim that the other party 

is now attempting to make arguments that have been procedurally defaulted or waived. The 

government argues that several of Richardson’s claims of prosecutorial misconduct, as well as 

his claim of ineffective assistance of counsel, have been procedurally defaulted and should not 

be considered by this panel. Richardson, meanwhile, argues that the government has waived the 

argument of procedural default by failing to object to the magistrate judge’s recommendation, 

which explicitly declined to consider procedural default. 

In the context of a habeas petition, procedural default bars federal review when a state 

court has declined to address a federal claim due to the petitioner’s noncompliance with a state 

procedural requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The default is an 

adequate and independent state ground upon which the state decision rests. Davila v. Davis, 

137 S. Ct. 2058, 2064 (2017). If a petitioner fails to raise a federal claim on direct appeal, the 

claim is procedurally defaulted in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 

(1991). If a claim has been procedurally defaulted, then habeas review is only available if a 

“petitioner can demonstrate (1) cause for the default and actual prejudice [resulting therefrom], 

or (2) that the [court’s] failure to consider the [defaulted argument would] result in a 

fundamental miscarriage of justice.” Williams v. Bagley, 380 F.3d 932, 966 (6th Cir. 2004) 

(citing Coleman, 501 U.S. at 749-50). 
No. 18-1434 Richardson v. Palmer Page 7

Though the Michigan Court of Appeals determined that some of Richardson’s arguments 

had been defaulted due to his failure to assert the issue during the trial, the court still considered 

the issues. Richardson, 2010 WL 4320392, at *8-15. The magistrate judge decided that 

“[r]ather than attempt to navigate these questions of procedural default,” the court would “simply 

address Petitioner’s claim on the merits.” Richardson, 2017 WL 9605116, at *58. Faced with 

the conflicting state appellate record, we agree with the magistrate judge that “[a]n analysis of 

the merits of the petitioner’s substantive claims presents a more straightforward ground for 

decision.” Id. (quoting McLemore v. Bell, 503 F. App’x 398, 404 (6th Cir. 2012)). Because we 

find that Richardson is not entitled to relief, the government is not prejudiced by our considering 

Richardson’s arguments.

III.

We review the district court’s decision de novo. Souter v. Jones, 395 F.3d 577, 584 (6th 

Cir. 2005). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), an application 

for writ of habeas corpus shall only be granted if the state court’s determination “resulted in a 

decision that was contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court” or “resulted in a decision that was based on 

an unreasonable determination of the facts in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d). 

A state court’s application of federal law is unreasonable only if the petitioner can 

demonstrate that it is “objectively unreasonable, not merely wrong[.]” Woods v. Donald, 135 S. 

Ct. 1372, 1376 (2015). The court’s reasoning must be “so lacking in justification” that the error 

is “beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 

103 (2011). The standard is “intentionally difficult to meet.” Woods, 135 S. Ct. at 1376 (citation 

and internal quotations marks omitted). “[T]he central inquiry is whether the state court decision 

was objectively unreasonable and not simply erroneous or incorrect.” Harris v. Haeberlin, 

526 F.3d 903, 910 (6th Cir. 2008) (citation and internal quotations marks omitted). 

“Factual determinations by state courts are presumed correct absent clear and convincing 

evidence to the contrary . . . and a decision adjudicated on the merits in a state court and based 
No. 18-1434 Richardson v. Palmer Page 8

on a factual determination will not be overturned on factual grounds unless objectively 

unreasonable in light of the evidence presented in the state-court proceeding[.]” Miller-El v. 

Cockrell, 537 U.S. 322, 340 (2003). If a federal claim was presented to a state court and the 

court subsequently denied relief, “it may be presumed that the state court adjudicated the claim 

on the merits[.]” Harrington, 562 U.S. at 99. 

IV.

We first consider whether the Michigan Court of Appeals’ rejection of Richardson’s 

claim of prosecutorial misconduct was objectively unreasonable. Richardson argues that the 

prosecutor committed numerous acts of misconduct, which denied him the right to a fair trial. 

Each of these alleged instances is considered below. 

Under § 2254(d)(1), Richardson argues that the state court’s adjudication was “contrary 

to” or involved an “unreasonable application of” clearly-established Supreme Court precedent. 

28 U.S.C. § 2254. Richardson argues that all of this conduct violated the standard of Darden v. 

Wainwright, “which explained that a prosecutor’s improper comments will be held to violate the 

Constitution only if they ‘so infected the trial with unfairness as to make the resulting conviction 

a denial of due process.’” Parker v. Matthews, 567 U.S. 37, 45 (2012) (quoting Darden v. 

Wainwright, 477 U.S. 168, 181 (1986)). Therefore, we will consider the “fairness of the trial,” 

which is the “touchstone of due process analysis in cases of alleged prosecutorial misconduct,” 

not the “culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). 

A.

Richardson’s first allegation of prosecutorial misconduct stems from the prosecutor’s 

reference to the September 11th terrorist attacks during jury selection. Richardson argues that 

“the prosecutor necessarily compared Richardson to the 9/11 terrorists by arguing that the same 

type of circumstantial evidence that proved that the 9/11 attacks were committed by terrorists 

proved that Richardson killed his wife.” (Reply Br., at 9.)

Much of the evidence submitted to the jury, as summarized above, was circumstantial. 

During the jury selection process, when attempting to ascertain whether potential jurors could 
No. 18-1434 Richardson v. Palmer Page 9

understand the merits of circumstantial evidence, the prosecutor made the familiar comparison to 

being able to determine that it is raining outside by seeing the circumstantial evidence of 

someone come in from outside wearing a raincoat covered in droplets of water. Richardson, 

2017 WL 9605116, at *63. The prosecutor then went on to make the ill-advised comparison of 

knowing that the World Trade Center had intentionally been attacked through the circumstantial 

evidence of seeing the second plane hit. Id. at *63-64. When that example caused the discussion 

to get off track, the prosecutor quickly returned to the rain example. Id. at *64. The prosecutor 

was attempting to demonstrate that “circumstantial evidence plays this hidden role in our lives, 

that we use it on a daily basis[.]” Id. at *65. When one potential juror said that it “seemed pretty 

obvious” that the attacks on 9/11 were intentional, the prosecutor clarified that the juror “would 

agree that circumstantial evidence can be very compelling[.]” Id. at *67. The prosecutor 

returned to the example during closing argument, explaining that the “9/11 analogies are about 

the presence and the power of circumstantial evidence in our lives.” Id. at *70. 

As the Michigan Court of Appeals noted, “the prosecutor’s references to the World Trade 

Center attack during voir dire were made in the context of exploring the concepts of 

circumstantial evidence and reasonable doubt with the prospective jurors, to determine whether 

they were capable of understanding and applying those concepts at trial.” Richardson, 2010 WL 

4320392, at *9. 

Though the prosecutor’s example was unnecessarily provocative, the state court’s finding 

that the example was permissible was not objectively unreasonable. The references were limited 

to voir dire and closing argument and did not come up outside of explaining circumstantial 

evidence. Such statements do not rise to the standard established by the Court in Darden. 

Therefore, the record cannot support a finding that the trial was so infected with improper 

comments that Richardson’s due process rights were violated.

B.

Richardson likewise argues that the prosecution committed misconduct when, during jury 

selection and closing argument, it referred to two notorious murders. Specifically, the prosecutor 

referenced the Moilanen murder, in which a husband shot his wife and made it look like a 
No. 18-1434 Richardson v. Palmer Page 10

hunting accident, to make the point that a murder might be staged to look like an accident. 

Richardson, 2017 WL 9605116, at *71. Additionally, the prosecutor referenced Scott Peterson, 

who killed his pregnant wife, to make the point that even notorious criminals “have people who 

support them. . . despite overwhelming evidence to the contrary[.]” Id. The prosecutor 

subsequently requested that the jury not “convict [Richardson] because of my references to 9/11 

or other high profile murder cases[.]” (Trial Tr. 25, R. 14-51, PageID 9611.)

Richardson argues that the state court engaged in an unreasonable determination of the 

facts in light of the evidence presented. Considering the overwhelming evidence at trial, we 

cannot say that the state court’s decision was unreasonable. The state court determined that, 

although “[t]he prosecutor could have made this same argument by using the hypothetical of a 

husband shooting his wife, . . . . the trial court’s jury instructions were sufficient to cure any 

perceived prejudice.” Richardson, 2010 WL 4320392 at *10. Additionally, the state court found 

that “[c]onsidering the overwhelming, properly admitted evidence of defendant’s guilt and the 

trial court’s instructions to the jury, any prejudicial implications of the prosecutor’s statements 

were sufficiently mitigated so as not to deprive defendant of a fair trial.” Id. We agree.

Further, Richardson’s legal arguments misunderstand the applicable standard of review. 

Richardson argues that the state court misapplied Supreme Court precedent by failing to follow 

Chapman v. California, 386 U.S. 18, 21 (1967), “which held that the prosecutor has the burden 

of proving, beyond a reasonable doubt, that the error was harmless.” (Appellant’s Br., at 24.) 

That case made no such assertion. Rather, it simply put forth the legal standard that “before a 

federal constitutional error can be held harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24. The state court 

determined that, even if the references to notorious criminals could prejudice the defendant, “the 

error was harmless because it is not more probable than not that the brief questioning, which did 

not directly suggest any comparison between defendant and a notorious criminal, affected the 

outcome of the trial.” Richardson, 2010 WL 4320392, at *10. Under the highly-deferential 

AEDPA standard, we do not find that the state court resolved this issue unreasonably. As noted, 

there was abundant circumstantial evidence linking Richardson to the murder, the prosecutor 

attempted to mitigate any undue effects from her comments, and there is no allegation that the 
No. 18-1434 Richardson v. Palmer Page 11

trial court did not properly instruct the jury. Therefore, while the prosecutor’s comments might 

have been imprudent at certain points, Richardson was not denied a fair trial.

C.

Third, Richardson argues that the prosecutor purposefully attempted to “arouse the 

sympathy of the jurors and compel them to convict, despite any doubts they may have had.” 

(Appellant’s Br., at 25.) In closing, the prosecutor said that Juanita Richardson likely 

experienced terror and betrayal before her death and insinuated that her own children were then 

betraying her by testifying for the defendant. Richardson, 2017 WL 9605116, at *72. The 

Michigan Court of Appeals first noted that “a prosecutor need not state her arguments in the 

blandest of terms[,]” and further determined that, in regard to the children, the prosecutor’s 

statements were largely attacking their credibility as witnesses. Richardson, 2010 WL 4320392, 

at *11. Additionally, the trial court instructed the members of the jury that they were not to let 

sympathy or passion influence their decision. Id. The court held that the remarks “did not 

deprive [Richardson] of a fair trial.” Id. We cannot say that the court’s determination was 

objectively unreasonable or that the prosecution’s statements infected the trial under Darden. 

D.

Next, according to Richardson, the prosecutor made inappropriate references to 

Richardson’s exercise of his constitutional rights to remain silent and consult with counsel. 

(Appellant’s Br., at 26.) Specifically, when questioning one of Richardson’s close 

acquaintances, the prosecutor asked whether Richardson had ever told him about a search 

warrant. The acquaintance told the prosecutor about an incident in which Richardson returned to 

his home to find three police cars in the driveway. Richardson explained to the acquaintance that 

he drove away and parked behind his home’s pole barn, where he called his attorney to see 

whether the police had a warrant and seek his counsel’s advice. Additionally, during her closing 

argument, the prosecutor noted that, regarding Richardson’s right to appeal, “an army of 

appellate lawyers will flyspeck everything I have said.” Richardson, 2017 WL 9605116, at *74.

Regarding the evidence of Richardson driving away from the police to call his attorney, 

the state court found that the record did not support his claim that the prosecutor’s arguments 
No. 18-1434 Richardson v. Palmer Page 12

were inappropriate. A prosecutor may not imply that a defendant’s decision to meet with 

counsel implies guilt. Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990). The state 

appellate court found that, although the prosecutor did elicit testimony that Richardson had 

called his attorney, the purpose of the questioning was to elicit testimony concerning 

Richardson’s consciousness of guilt, namely, that upon seeing police officers in his driveway, he 

hid because he assumed that they would likely have an arrest warrant. Richardson, 2010 WL 

4320392, at *11.

We agree with the state appellate court and do not find their decision objectively 

unreasonable. Though it would be inappropriate for a prosecutor to argue that Richardson called 

his attorney because he was guilty, the record demonstrates that the prosecutor sought to 

establish that Richardson was conscious of his guilt, which was demonstrated by his fleeing the 

scene and hiding, rather than simply addressing the police officers. 

Further, we agree with the state appellate court that Richardson “failed to show that the 

prosecutor’s brief remark in closing argument regarding the possibility that her conduct would be 

flyspecked in a future appeal infringed on his right to counsel or was prejudicial.” Id. at *12. 

Richardson has failed to demonstrate that this singular reference violated his rights or infected 

the trial as a whole. Therefore, the state court’s decision was not an improper application under 

Darden. 

E.

Richardson alleges that “the prosecutor presented overwhelming evidence of Petitioner’s 

bad character, . . . such as the testimony that Petitioner was an unproductive and complaining 

employee, . . . mentally and verbally abusive to his wife, and that he pursued other women.” 

(Appellant’s Br., at 29.) Richardson argues that the state court did not address this claim and that 

therefore we should review it de novo. The state appellate court considered many of the specific 

instances that Richardson now cites in his petition, including evidence “depicting him as a 

‘misogynist,’” which the state appellate court found admissible as relevant statements made by 

the defendant. Richardson, 2010 WL 4320392, at *2-4. The state appellate court similarly 

found that evidence of Richardson’s previous affairs, including love letters, were admissible to 
No. 18-1434 Richardson v. Palmer Page 13

“establish the long-term nature of the marital discord and defendant’s discontent with the 

marriage[.]” Id. at *4. The state court also found that evidence of Richardson’s previous work 

was relevant because it was used to rebut his claim that he had suffered from a traumatic brain 

injury that caused lapses in memory. Id. at *5. Finally, evidence from former coworkers was 

relevant to admit Richardson’s previous statements about his marriage, his relationship with 

Juanita, and the circumstances surrounding her death. Id.

Richardson also argues that the prosecutor made inappropriate statements regarding 

Richardson’s religious beliefs in her closing. According to Richardson, such statements were 

inappropriate because “[a] person who disrespects God is, logically, more likely to be the type of 

person who could commit murder.” (Appellant’s Br., at 31.) Additionally, the prosecutor 

referred to Kelli Brophy’s religious beliefs. Brophy and Richardson would talk nearly every 

night to discuss “the Bible or scriptures.” Richardson, 2017 WL 9605116, at *75. Brophy told 

Richardson that if she ever wanted to get into a relationship with someone, she did not “want the 

person to have any baggage, have any ex-wives.” Id. at *39. More directly, Brophy told 

Richardson that this meant that his “ex-wife couldn’t be alive.” Id. 

Without getting into an unnecessary and inappropriate analysis of whether one’s religious 

beliefs can in fact be in any way linked to a predilection to commit violent crimes, the state 

appellate court correctly found that “the remark did not concern a witness’s religious beliefs, but 

rather [Richardson’s] alleged motive.” Richardson, 2010 WL 4320392, at *13. Specifically, the 

prosecution sought to prove that Richardson would have wanted to kill Juanita to be with Brophy 

and because it would allow him to “maintain his image as a morally and spiritually superior 

person, one who was opposed to divorce.” Id. Additionally, Richardson had put forth witness 

testimony concerning his religious beliefs and his involvement in assorted religious groups. 

“Examined in this context, the challenged remark was a fair response to the defense evidence.” 

Id. The state court’s determination was not objectively unreasonable in light of the prosecutorial 

statements and the context in which they were made.4

 

4

Insofar as the state appellate court did not consider all of Richardson’s arguments regarding alleged 

character evidence, the court found that “many of defendant’s claims of error are unpreserved” because Richardson 

did not timely object to their admission or objected on different grounds than those he advanced on appeal. 
No. 18-1434 Richardson v. Palmer Page 14

F.

Richardson points to a number of instances in which he believes that the prosecutor 

denigrated defense counsel. This includes the prosecutor saying that “even the defense doesn’t 

believe the defendant,” because a computerized simulation of defense’s theory of the case 

actually contradicted Richardson’s own account of the incident; referencing that the jury might 

witness “gratuitous nastiness” in the cross-examination of prosecution witnesses because defense 

counsel told the jury that it should expect “[r]igorous cross-examination”; explaining that 

Richardson had been charged with both first-degree murder and manslaughter, so that the 

defense could not argue that Richardson killed Juanita under an impulse, which would not be 

included in murder; and saying that the defense’s theory failed the “fall-down-laughing test.” 

(Appellant’s Br., at 32-36.) 

The state appellate court found many of these statements to be “inartfully phrased,” but 

fair commentary in the context, often concerning conflicts of evidence. Richardson, 2010 WL 

4320392, at *14. The prosecutor’s allusion to the “gratuitous nastiness” of cross-examination 

was made in response to defense’s comment to the jury that there would be “rigorous crossexamination.” It was therefore in response to posturing on the part of the defense. Moreover, we 

fail to see how Richardson could have been prejudiced by the prosecutor explaining to the jury 

why, in a case that was largely based on circumstantial evidence of premeditation and intent, a 

defendant was charged with manslaughter, which would imply that there had been no 

premeditation.

Finally, Richardson posits that he was prejudiced by the prosecutor inappropriately 

referring to Richardson’s expert witness as a “defense whore,” an insult that the prosecutor 

explained is not “a gender-based slur,” but “simply refers to opinions being for sale.” 

Richardson, 2017 WL 9605116, at *78. After a late objection, the trial court instructed the 

prosecution to refrain from using such derogatory terminology. The state appellate court 

“agree[d] with [Richardson] and the trial court that the prosecutor’s choice of words was in bad 

taste and not befitting of a courtroom setting.” Richardson, 2010 WL 4320392, at *14. Still, the 

 

Richardson, 2010 WL 4320392, at *1. Therefore, any claim that the state appellate court did not consider was not 

properly exhausted and need not be considered here.
No. 18-1434 Richardson v. Palmer Page 15

court found that Richardson had “not established that he was denied a fair trial as a result of the 

statement.” Id. 

We agree. On appeal, Richardson argues that this statement denied him a fair trial 

because it was an inappropriate attempt to mislead the jury and made all the worse because it 

was directed at the expert witness upon whose testimony Richardson relied to attempt to explain 

his many inconsistent statements regarding Juanita’s death. Under Michigan law, 

“the prosecution is free to argue from the evidence presented that an expert witness had a 

financial motive to testify at trial.” People v. Unger, 278 Mich. App. 210, 239 (Mich. Ct. App. 

2008). It is true that the prosecutor’s choice of words was ill-advised, but Richardson’s only 

argument is that the specific use of the word “whore” was so inappropriate that it infected the 

entire trial. Such arguments fail to demonstrate that the prosecution’s inappropriate comment, 

addressed by the trial court at the time, infected the trial as a whole as required by Darden.

G.

Finally, Richardson argues that the prosecution inappropriately complained of court 

rulings in order to imply the existence of evidence of guilt that was not in the record. For 

example, the prosecutor stated that the jury could not visit the scene of the crime, the courtroom 

could not be cleared so that the jury could better hear a tape recording, and that some medical 

professionals who provided care to Juanita could not give their full thoughts on Richardson. The 

Michigan Court of Appeals found that, although “the prosecutor’s expressed preferences were 

not relevant and unnecessary, [it] fail[ed] to see how [Richardson] was prejudiced by the 

comments.” Richardson, 2010 WL 4320392, at *15. On appeal, Richardson contends that the 

prosecution was essentially arguing “that the evidence made inadmissible by the rulings was 

evidence of Petitioner’s guilt, which implied that the prosecutor had some personal knowledge of 

facts not in evidence of Petitioner’s guilt, which is indisputably fundamentally unfair.” 

(Appellant’s Br., at 38.) Richardson’s argument is unavailing. 

The prosecutor did not allude to any personal knowledge of Richardson’s guilt when she 

said that she wished that the jury could visit the scene of the crime. Nor did she allude to 

personal knowledge when she told the jury that, because a recorded tape was going to be played 
No. 18-1434 Richardson v. Palmer Page 16

in the open courtroom, “you really need to tune out whatever is going on in the courtroom and 

listen to what’s on this tape and what’s not on this tape.” Richardson, 2017 WL 9605116, at 

*78. If anything, such a statement requests that the jury pay close attention to the recording, 

which was properly admitted. Finally, the prosecutor did not allude to personal knowledge when 

she explained that the jury would be hearing from first-responders and primary care providers 

who had actually treated Richardson, but who could not give a final opinion on what they 

thought of Richardson’s guilt. Such a statement accurately explains the function of a lay witness 

as compared to an expert witness. Under the AEDPA standard, it was certainly not objectively 

unreasonable for the state appellate court to find that the trial court’s instructions were sufficient 

to ensure that the jury only considered evidence that was properly admitted. 

H.

In summation and looking at the cumulative effect of the prosecution’s actions, we agree 

with the Michigan Court of Appeals that Richardson “has not shown any actual errors that, 

viewed singularly or cumulatively, deprived him of a fair trial.” Richardson, 2010 WL 4320392, 

at *15. But, we do not do so lightly. As the state and federal courts that have considered this 

case before us have explained, and the above discussion makes evident, there were numerous 

incidents in which the prosecutor ill-advisedly chose to editorialize, to make irrelevant 

observations, and to use imprudent language. 

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not 

merely to convict . . . . The prosecutor should . . . respect the constitutional and legal rights of all 

persons, including suspects and defendants . . . . The prosecutor should avoid an appearance of 

impropriety in performing the prosecution function.” Am. Bar Ass’n, Criminal Justice Standards 

for the Prosecution Function, Standard 3-1.2(b)-(c) (4th ed. 2018). The trial judge must then act 

as a guarantor of the prosecutor’s fairness. “A trial judge should maintain order and decorum in 

judicial proceedings. The trial judge has the obligation to use his or her judicial power to prevent 

distractions from and disruptions of the trial.” Am. Bar Ass’n, Special Functions of the Trial 

Judge, Standard 6-3.5(a) (3d ed. 2000).
No. 18-1434 Richardson v. Palmer Page 17

In this case, the prosecutor failed in her duty by abdicating her role as minister of justice, 

instead focusing on winning by any means necessary. Similarly, the trial judge failed to act as a 

check on the prosecutor’s action by serving as a neutral arbiter of justice. Prosecutors are, of 

course, agents of the public. They act on the public’s behalf and, in so doing, act with the 

public’s permission. There can be no doubt that, in this case, the prosecutor abused that public 

trust and, in so doing, potentially undermined the public’s trust in all prosecutors. 

Our analysis requires that we consider this prosecutor’s misdeeds against the evidence of 

the criminal defendant’s guilt. Lest our warning go unheeded, let us be explicit, prosecutors 

should not feel that an overabundance of evidence of guilt grants a license to be flippant with 

their ethical obligations. 

We cannot overstate our discomfort with the prosecutor’s misdeeds. Whether they were 

intentional misinterpretations or doltish distortions, they were an afront on the court’s 

impartiality, a waste of its resources, and an insult to its independence. In calling a defense 

witness a “whore,” the prosecutor not only insulted and demeaned an expert, but disrespected the 

jury, betrayed the public trust, and wasted the time of this court and the many courts before it 

with her garish antics.

Yet, the purpose of these habeas proceedings is not “punishment of society for the 

misdeeds of the prosecutor[,] but avoidance of an unfair trial to the accused.” Smith, 455 U.S. at 

219 (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). We agree with the other courts that

have considered whether Richardson was afforded a fair trial. Like other courts, we find that 

while the trial was not perfect, and despite the prosecutor’s misdeeds, Richardson received a fair 

trial due to the overwhelming evidence of his guilt. In the end, the prosecutor’s precognition that 

appellate lawyers would pick through everything she said was accurate, and she should have 

been more tactful when trying this case.5

 

5Richardson notes that “[n]ot surprisingly, the prosecutor in this case has been previously reprimanded for 

comments similar to the ones she made here” and cites previous incidents. (Appellant’s Br., at 39.) For the 

purposes of our review, however, we only consider the overall fairness of the trial. See Smith, 455 U.S. at 219 

(“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, 

not the culpability of the prosecutor.”) (emphasis added). 
No. 18-1434 Richardson v. Palmer Page 18

V.

This court expanded Richardson’s COA to consider whether his trial and appellate

counsel performed ineffectively for failing to argue that the testimony of Tammy Sian was 

obtained as a result of an illegal, warrantless search. Richardson met Sian two months after his 

wife’s death. The two spoke daily, and Richardson began regularly spending the night with Sian. 

Sian told police that she and Richardson had a sexual relationship, but that Richardson did not 

want to be seen with her in public “because he was worried about police surveillance and the 

police following him.” Richardson, 2017 WL 9605116, at *46. According to Sian, Richardson 

was great with her and her children and had even said that he would consider marrying her at 

some point.

The authorities discovered Sian through the use of a GPS device without a warrant. In 

his habeas petition, Richardson claimed that “because placement of the GPS device on his 

vehicle violated his Fourth Amendment rights, the introduction of Sian’s testimony entitle[d] 

him to habeas relief.” Id. at *88. The district court rejected the argument. Id. at *89. The court 

found that Richardson was able to assert his Fourth Amendment claims in state court and that, 

under Stone v. Powell, “a state prisoner may not be granted federal habeas corpus relief on the 

ground that evidence obtained in an unconstitutional search or seizure was introduced at his 

trial,” if the state court provided the opportunity for full and fair litigation of the claim. Id.

(quoting 428 U.S. 465, 494 (1976)). “[Richardson’s] attorney acknowledged that he was, in fact, 

timely provided a police report indicating that a tracking device had been placed on Petitioner’s 

vehicle.” Id. at *88.

Additionally, the district court rejected Richardson’s arguments that his trial counsel was 

ineffective for failing to question a potential witness at trial, failing to object to the trial court’s 

refusal to provide a special jury instruction, and failing to request that the jury not conduct 

experiments during their deliberations. Id. at *95-100. Considering appellate counsel, the 

magistrate judge found that because Richardson “failed to establish that his trial counsel 

rendered ineffective assistance, Petitioner cannot establish that he was prejudiced by his 

appellate counsel’s failure to request a hearing regarding such.” Id. at *101.
No. 18-1434 Richardson v. Palmer Page 19

In granting the expanded COA, however, we noted that Richardson could raise the fact 

that counsel performed ineffectively by failing to raise the merits of the Fourth Amendment 

violation below. These are two separate issues: a claim that the prosecution violated his Fourth 

Amendment rights and a claim that his counsel was ineffective for failing to make that argument 

below. In Kimmelman v. Morrison, the Supreme Court held that Stone’s restrictions on federal 

habeas review of Fourth Amendment claims do not apply to Sixth Amendment claims of 

ineffective assistance of counsel, even where counsel was allegedly ineffective for failing to 

bring a Fourth Amendment claim. 477 U.S. 365, 382-83 (1986).

Richardson mischaracterizes the issue on which we granted his COA, arguing that we 

must consider whether trial counsel was ineffective for failing to investigate the GPS evidence, 

which would have revealed that the police did not have a warrant. According to Richardson, trial 

counsel was ineffective when it received the police report indicating that a tracking device had 

been used but failed to investigate whether a warrant was secured that permitted the tracking 

device. Our inquiry, however, is narrower: whether trial and appellate counsels were ineffective 

for failing to argue that Sian’s testimony was obtained in violation of the Fourth Amendment.

A.

Richardson has failed to establish that his trial counsel was ineffective for failing to argue 

that Tammy Sian’s testimony was admitted in violation of his Fourth Amendment rights.6 In 

order to prove that his trial counsel was ineffective, Richardson must demonstrate both that his 

trial counsel’s performance was deficient and that he was prejudiced by said deficiencies. Premo 

v. Moore, 562 U.S. 115, 121 (2011). “[A] court deciding an actual ineffectiveness claim must 

judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct.” Strickland v. Washington, 466 U.S. 668, 690 

(1984). Regarding performance, Richardson must demonstrate that his counsel’s representation 

 

6As noted previously, the government argues that many of Richardson’s claims are procedurally defaulted, 

including this one. The trial court found that Richardson’s underlying claim, that the evidence was admitted in 

violation of his Fourth Amendment rights, was procedurally defaulted, while the district court found that the Fourth 

Amendment claim was inappropriate in a habeas proceeding. Neither of these findings, however, address the issue 

of whether his trial and appellate counsel were ineffective for failing to raise the argument. Therefore, considering 

whether counsel was ineffective offers a more straightforward analysis. 
No. 18-1434 Richardson v. Palmer Page 20

“fell below an objective standard of reasonableness.” Id. at 688. Regarding prejudice, 

Richardson must demonstrate “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Premo, 562 U.S. at 122 (citation 

and internal quotation marks omitted). He must prove that his counsel’s error was so egregious 

that it “infect[ed] [his] entire trial with error of constitutional dimensions.” Murray v. Carrier, 

477 U.S. 478, 494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A court 

considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel’s 

representation was within the ‘wide range’ of reasonable professional assistance.” Harrington, 

562 U.S. at 104 (quoting Strickland, 466 U.S. at 689).

Additionally, not only does Richardson’s claim face the difficulties of Strickland, but also 

our review is once again limited under AEDPA to consider whether the state court acted 

objectively unreasonably under Supreme Court precedent in finding that trial counsel was not 

ineffective. The state court considered trial counsel’s effectiveness in its opinion and order 

regarding post-conviction relief and found that Richardson had failed to demonstrate his trial 

counsel was ineffective. “Establishing that a state court’s application of Strickland was 

unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and 

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ 

so.” Harrington, 562 U.S. at 105 (internal citations omitted). Therefore, the Supreme Court has 

warned that courts must be careful not to equate the meaning of unreasonableness under 

Strickland with that under § 2254(d). Id. “When § 2254(d) applies, the question is not whether 

counsel’s actions were reasonable. The question is whether there is any reasonable argument 

that counsel satisfied Strickland’s deferential standard.” Id. 

Adding to Richardson’s burden with the standard of review, the Supreme Court explained 

in Kimmelman that “[w]here defense counsel’s failure to litigate a Fourth Amendment claim 

competently is the principal allegation of ineffectiveness, the defendant must also prove that his 

Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict 

would have been different absent the excludable evidence in order to demonstrate actual 

prejudice.” 477 U.S. at 375 (emphasis added). 
No. 18-1434 Richardson v. Palmer Page 21

Therefore, under AEDPA, we look to see whether it was objectively unreasonable under 

Supreme Court precedent for the state court to deny Richardson’s claim of ineffective assistance 

of counsel. In making that determination, we look to whether Richardson has demonstrated that 

his counsel’s performance was deficient under Strickland. We then consider whether Richardson 

was prejudiced by the alleged deficiencies, which requires that Richardson demonstrate that his 

Fourth Amendment claim would have been meritorious and, but for Sian’s testimony being 

admitted, there is a reasonable probability that he would have been found not guilty. With such a 

demanding standard of review, it is perhaps of no surprise that Richardson fails to establish that 

his counsel was ineffective. 

1.

Richardson argues that “trial counsel was ineffective for failing to request discovery of 

reports regarding a GPS tracking device that he knew, from a police report given to him a year 

before trial, that police placed on Petitioner’s car[.]” (Appellant’s Br., at 48.) But, defense 

counsel cannot be deemed ineffective for failing to make an argument that would have been 

futile. Harris v. United States, 204 F.3d 681, 683 (6th Cir. 2000).

Although the Supreme Court held in United States v. Jones, 565 U.S. 400, 404 (2012), 

“that the Government’s installation of a GPS device on a target’s vehicle, and its use of that 

device to monitor the vehicle’s movements, constitutes a ‘search,’” that opinion was issued six 

months after Richardson’s direct appeal concluded. Therefore, it could not have been clearly 

established that the warrantless use of a GPS device violated the Fourth Amendment. 

Richardson has cited no evidence that the Jones decision applies retroactively. He instead argues 

that trial counsel was “unreasonable because he failed to investigate and discover the warrantless 

GPS tracking and all the evidence it generated (not for failing to file a motion to suppress that 

information)[.]” (Reply Br., at 27.) Richardson’s COA, however, was granted with respect to 

whether trial and appellate counsel performed ineffectively for failing to argue that the testimony 

of Tammy Sian was obtained as a result of an illegal, warrantless search.
No. 18-1434 Richardson v. Palmer Page 22

We need not decide whether the Jones decision is retroactive. It is enough that 

Richardson has failed to demonstrate how his attorney’s performance was deficient. He certainly 

has not demonstrated that the claim would have been meritorious under Kimmelman. 

2.

Even if Richardson could demonstrate that his counsel was deficient for failing to make 

an argument that may have been futile at the time of his trial, however, he cannot demonstrate 

that he was prejudiced by his trial counsel’s performance, let alone that, but for his attorney’s 

failure to challenge the Sian testimony as a Fourth Amendment violation, there is a reasonable 

probability that the result would have been different, as required under Kimmelman. 477 U.S. at 

375.

Richardson argues that there is a reasonable probability that the jury verdict would have 

been different because trial counsel would have been able to suppress Tammy Sian’s testimony, 

which he argues was the “only prosecution witness to testify that Petitioner engaged in a 

romantic and sexual relationship only a month after the death of his wife[,]” (Appellant’s Br., at 

54), and would have been able to rebut the prosecution’s theory that Richardson visited Brophy 

after his wife’s death. Richardson has not demonstrated that either instance was likely to change 

the jury’s decision.

Considering Tammy Sian’s testimony, it is true that she was sexually involved with 

Richardson shortly after his wife’s death. But, even if she had not been permitted to testify, 

Richardson pursued other women romantically. Richardson asked a bank employee out to dinner 

while trying to navigate how to cash checks that were intended for memorial funds. He 

expressed a high level of interest in meeting with a woman he had met through mutual friends, 

not knowing that she was an undercover agent. Regarding whether Richardson visited Brophy, 

the jury heard from Brophy herself, who testified that Richardson had visited her and given her a 

flower from his wife’s funeral. Given Brophy’s testimony, corroborated by her daughter’s 

testimony, and the evidence that there were fifty-two calls between Richardson and Brophy in 

the weeks following Juanita’s death, Richardson has failed to show a reasonable probability that 

the jury’s decision would have been different.
No. 18-1434 Richardson v. Palmer Page 23

This is all without considering other evidence, such as Richardson’s statements to his 

cell-mates threatening the prosecutor, his seeking out an attorney to draft a will before his trip 

with Juanita to their “honeymoon spot,” his inconsistent stories regarding Juanita’s death, his 

threatening of his wife, and much more. 

B. 

Finally, Richardson argues that his appellate counsel was ineffective for failing to argue 

that Sian’s testimony was obtained as the result of an illegal search. Appellate counsel’s 

assistance is assessed under the same Strickland two-part standard discussed above. Smith v. 

Robbins, 528 U.S. 259, 285 (2000). Once again Richardson attempts to broaden the scope of our 

inquiry under the COA, arguing that appellate counsel was ineffective for failing to argue that 

trial counsel was ineffective. We are limited, however, to the inquiry discussed above.

Richardson must demonstrate that his appellate counsel was objectively deficient for 

failing to raise the Fourth Amendment argument. He must then demonstrate that “but for his 

counsel’s unreasonable failure . . ., he would have prevailed on his appeal.” Robbins, 528 U.S. at 

285. Appellate attorneys are not required to raise every “colorable” claim. Jones v. Barnes, 

463 U.S. 745, 754 (1983). Therefore, “[d]eclining to raise a claim on appeal . . . is not deficient 

performance unless that claim was plainly stronger than those actually presented to the appellate 

court.” Davila, 137 S. Ct. at 2067. 

Richardson’s appellate attorney made five arguments on direct appeal: (1) that 

Richardson’s due process rights were violated by the prosecutor being permitted to submit 

evidence of Richardson’s actions over twenty years to establish him as a “misogynist” and a 

“jerk”; (2) that the evidence was legally insufficient; (3) that rampant prosecutorial misconduct 

deprived Richardson of his right to a fair trial; (4) that the attorneys with whom Richardson 

discussed quickly needing a will should not have been permitted to testify because of attorneyclient privilege; and (5) that he was not permitted to confront the witnesses against him because 

he was not permitted to participate in Brophy’s material witness hearing. See generally 

Richardson, 2010 WL 4320392.
No. 18-1434 Richardson v. Palmer Page 24

Richardson now contends that all these claims, except for the prosecutorial misconduct 

issue that he is currently pressing, “were clearly weaker than the ineffective-assistance [of trial 

counsel] claim[.]” (Appellant’s Br., at 61.) Richardson submitted all these same claims in the 

present habeas proceeding. 

For the reasons discussed above pertaining to trial counsel, Richardson has likewise 

failed to demonstrate that his appellate counsel was ineffective for failing to argue that Sian may 

have been discovered in violation of his Fourth Amendment rights. Further, even if we were to 

consider Richardson’s argument that his appellate counsel was ineffective for failing to argue 

that his trial counsel was ineffective, beyond the scope of the COA, the argument fails, as we 

have found that Richardson failed to demonstrate that trial counsel was ineffective under the 

Supreme Court’s deferential standard articulated in Richter and Strickland.

VI.

For the reasons set forth above, the district court’s denial of Richardson’s petition is 

AFFIRMED.