1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0227P (6th Cir.)

File Name: 04a0227p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

TRENTON MILLENDER,

Petitioner-Appellant,

v.

STANLEY ADAMS,

Respondent-Appellee.

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No. 02-1403

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-70945—Gerald E. Rosen, District Judge.

Argued: April 29, 2004

Decided and Filed: July 15, 2004 

Before: KENNEDY, MARTIN, and ROGERS, Circuit

Judges.

_________________

COUNSEL

ARGUED: John F. Royal, Detroit, Michigan, for Appellant.

Laura Graves Moody, OFFICE OF THE ATTORNEY

GENERAL, HABEAS CORPUS DIVISION, Lansing,

Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit,

Michigan, for Appellant. Laura Graves Moody, OFFICE OF

2 Millender v. Adams No. 02-1403

THE ATTORNEY GENERAL, HABEAS CORPUS

DIVISION, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. Mr. Trenton

Millender appeals the judgment of the district court denying

his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

This Court granted a certificate of appealability on four

issues: (1) whether Mr. Millender's trial counsel was

constitutionally ineffective; (2) whether the Michigan trial

court's failure to instruct jurors on mistaken identity and

impeachment by a prior inconsistent statement denied

petitioner a fair trial; (3) whether comments the prosecutor

made in closing argument denied petitioner a fair trial; and (4)

whether the cumulative effect of these alleged errors denied

petitioner a fair trial. For the reasons that follow, we affirm

the judgment of the district court. 

I. 

Late in the evening in July 1994, petitioner and two other

individuals broke into a home to commit a robbery. Once

inside the home, the three assailants brutally assaulted its

occupants. Based on these actions, a Michigan state-court

jury convicted Mr. Millender of three counts of first-degree

criminal sexual conduct, three counts of armed robbery, one

count of assault with intent to do great bodily harm, three

counts of felonious assault, and one count of felonious

possession of a firearm during the commission of a felony.

The trial court sentenced petitioner to a lengthy prison term

following this conviction. 

The Michigan Court of Appeals subsequently denied two

motions to remand and a motion for rehearing filed by

petitioner. Thereafter, in October 1996, the Michigan Court
No. 02-1403 Millender v. Adams 3

of Appeals affirmed his conviction. In December 1997, the

Michigan Supreme Court denied petitioner’s motion for leave

to appeal and, in February 1998, the Michigan Supreme Court

denied his motion for reconsideration. Petitioner then moved

for an evidentiary hearing in the United States District Court.

The district court denied this motion without prejudice in

March 2000. In February 2002, the district court also denied

petitioner's petition for a writ of habeas corpus and sua

sponte denied him a certificate of appealability. In October

2002, this Court granted Mr. Millender's request for a

certificate of appealability, and we certified four issues for

review. 

II.

We review a grant or denial of a petition for writ of habeas

corpus de novo and the factual findings of the district court

for clear error. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir.

2001). Under 28 U.S.C. § 2254, a writ of habeas corpus may

not be granted unless the state-court 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

Court of the United States; or 

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceedings. 

28 U.S.C. § 2254(d). Section 2254(d)(1) defines two

categories of cases in which a state prisoner may gain habeas

relief. See Williams v. Taylor, 529 U.S. 362 (2000)

(O'Connor, J., concurring). 

To gain habeas relief under the first category, involving

state decisions contrary to federal law, a defendant must

show that the state court arrived at a conclusion opposite

to that reached by the Supreme Court on a question of

4 Millender v. Adams No. 02-1403

law' or that the state court decided a case differently than

the Supreme Court has on a set of materially

indistinguishable facts. Under the second category,

involving the unreasonable application of federal law by

a state court, a federal habeas court must ask whether the

state court’s application of clearly established federal law

was objectively reasonable. If the federal court finds

that, viewed objectively, the state court has correctly

identified the governing legal principle from the Supreme

Court's decisions but unreasonably applied that principle

to the facts of the prisoner’s case, it may grant the writ.

Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000)

(citation and internal quotations omitted). With respect to all

four issues raised by petitioner, we find no error in the

judgment of the district court and affirm. 

III.

The first issue Mr. Millender raises to support his claim for

habeas relief is ineffective assistance of counsel. Petitioner

alleges that his attorney violated his right to effective

representation, which is guaranteed under the Sixth

Amendment in criminal cases. “The benchmark for judging

any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland v. Washington, 466 U.S.

668, 686 (1984). Millender advances several grounds for

relief to support this claim, including his attorney’s failure to

object to the introduction of evidence, failure to object to

various in-court identifications and prosecutorial remarks,

failure to call a rebuttal witness, and failure to make an

opening statement or request certain instructions. We review

de novo the district court’s judgment on an ineffectiveassistance-of-counsel claim. Hudson v. Jones, 351 F.3d 212,

215 (6th Cir. 2003). 
No. 02-1403 Millender v. Adams 5

In its review of the ineffective-assistance-of-counsel claim,

the district court applied the standard set out in Strickland and

ruled that Mr. Millender’s counsel was not constitutionally

ineffective. The Strickland standard involves a two-step

inquiry that requires a petitioner to show (1) that his trial

representation was deficient, or objectively unreasonable, and

(2) that prejudice resulted from this representation.

Strickland, 466 U.S. at 687. “The defendant must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. Mr. Millender argues that the

district court erred not only in ruling that his counsel was not

ineffective, but also in analyzing his claim under the

Strickland standard rather than the less stringent standard set

out in United States v. Cronic, 466 U.S. 648 (1984). Under

Cronic, prejudice is presumed, and therefore need not be

proved, if petitioner’s counsel “entirely fails to subject the

prosecution's case to meaningful adversarial testing[.]”

Cronic, 466 U.S. at 659. 

Throughout the trial, petitioner’s attorney was an active

participant: he cross-examined witnesses, made proper

objections, and presented a closing argument. This level of

representation does not fall below the low threshold required

by Cronic. Therefore, the district court did not err in its

application of the Strickland standard, and we rely on the

same standard in our review of this claim. 

A.

Petitioner alleges that his attorney’s failure to file a motion

to suppress evidence from witness and voice-identification

police lineups and in-court identifications constitutes

ineffective assistance of counsel. Under United States v.

Wade, 388 U.S. 218 (1967), a defendant may have the right

to a pretrial hearing to contest the validity of an out-of-court

identification. Petitioner argues that his attorney should have

requested a Wade hearing to suppress the lineup

identifications because he claims these identifications were

6 Millender v. Adams No. 02-1403

impermissibly suggestive. He alleges the lineup was

suggestive because he was the tallest suspect; he alleges the

voice identificationwassuggestive because, according to him,

his voice did not sound “in any way” like the other suspect’s

voices and it was conducted at the same time as the

identification lineup. Petitioner also argues that his attorney

should have objected to in-court identifications of him

because eyewitness testimony is “extremely unreliable” yet

has a profound impact on juries. Thus, according to

petitioner, his attorney’s failure to file a motion to suppress

this identification evidence constitutes ineffective assistance

of counsel because his primary defense was mistaken identity.

We hold that petitioner's attorney’s failure to file a motion

to suppress does not constitute ineffective assistance of

counsel. In some circumstances, discrepancies in height may

be impermissibly suggestive. See Foster v. California, 394

U.S. 440, 442-43 (1969). Although petitioner was taller than

the other suspects used in the lineup, he was only one inch

taller than two other suspects, all of whom were roughly the

same height, and all of the suspects were dressed similarly

and were approximately the same age. In addition, as the

Michigan Court of Appeals pointed out, the fact that only

three of the six victims identified petitioner in the lineup

belies his argument that it was impermissibly suggestive. As

to the voice-identification evidence, a defense attorney

present at the lineup made no objection to or comments about

any discrepancy in the voices. Consequently, because there

was nothing to suggest that the lineup procedure was in any

way improper, petitioner’s counsel was not ineffective for

failing to seek a Wade hearing or failing to suppress evidence

concerning the three victims’ identification of petitioner

during that lineup. See United States v. Carter, 355 F.3d 920,

924 (6th Cir. 2004) (holding that counsel was not ineffective

for failing to file motion where there was no reasonable

probability that motion would be granted).

Further, because the lineup was not impermissibly

suggestive, petitioner’s counsel did not err in failing to object
No. 02-1403 Millender v. Adams 7

to the in-court identification of petitioner by victims who had

failed to identify petitioner during the lineup. As recognized

by the district court, the victims’ failure to identify the

petitioner during the lineup went to the credibility of the incourt identifications, not their admissibility. United States v.

Causey, 834 F.2d 1277, 1286 (6th Cir. 1987); People v.

Barclay, 528 N.W.2d 842 (Mich. App. 1995). Consequently,

petitioner’s counsel was not ineffective for failing to object to

the admission of the in-court identifications. 

B.

Petitioner also alleges that his attorney's failure to object to

the introduction into evidence of a picture of a pair of pliers

found at the crime scene, a similar pair of pliers, a handgun,

a shotgun, and photographs of the guns constitutes ineffective

assistance of counsel. He argues that the introduction of these

items, none of which were proven to be weapons used in the

crime, was inflammatory and prejudiced the jury against him.

Though the sight of these items, given the violent nature of

the crime, may have been unpleasant for the jury, the

attorney's failure to object to their admittance does not

constitute ineffective assistance of counsel. Applying

Strickland, we hold that it was not objectively unreasonable

for Mr. Millender’s attorney not to object to the admittance of

this evidence. See Strickland, 466 U.S. at 687-91. None of

the items had petitioner’s fingerprints on them and none were

found in his possession. Thus, this evidence reasonably could

have weighed in petitoner’s favor in the jury’s determination

of guilt. Therefore, the judgment of the district court on the

physical-evidence-admission issue is affirmed. 

C. 

As another basis for his ineffective-assistance-of-counsel

claim, petitioner argues that his attorney should have made an

opening statement. An attorney’s decision not to make an

opening statement “is ordinarily a mere matter of trial tactics

8 Millender v. Adams No. 02-1403

and . . . will not constitute . . . a claim of ineffective assistance

of counsel.” Millender v. Adams, 187 F. Supp. 2d 852, 870

(E.D. Mich. 2002), quoting United States v. RodriquezRamirez, 777 F.2d 454, 457 (9th Cir. 1985). We find no error

in the district court’s determination that the attorney’s

decision was not objectively unreasonable, and therefore did

not amount to ineffective assistance of counsel. See

Strickland, 466 U.S. at 687-91. We affirm the judgment of

the district court on this issue. 

D. 

Petitioner complains that his attorney was ineffective for

failing to request jury instructions on mistaken identity, which

was petitioner’s only defense, and on the impeachment of

witnesses by prior inconsistent statements. Even assuming

that petitioner’s counsel erred in failing to request these

instructions, however, petitioner has not demonstrated

prejudice because—for the reasons set forth in the district

court’s opinion—the instruction given by the court and

counsel’s closing arguments put the issues squarely before the

jury. Millender, 187 F. Supp. 2d at 873-74; Weighall v.

Middle, 215 F.3d 1058, 1063 (9th Cir. 2000).

E.

Petitioner next argues that his attorney’s failure to object to

alleged prosecutorial misconduct during the prosecutor’s

closing argument constitutes ineffective assistance of counsel.

“On habeas review, a court's role is to determine whether

[alleged prosecutorial misconduct] was so egregious as to

render the entire trial fundamentally unfair.” Millender, 187

F. Supp. 2d at 875, citing Serra v. Michigan Dep’t of Corr.,

4 F.3d 1348, 1355-56 (6th Cir. 1993). In conducting such a

determination, a reviewing court first decides whether the

alleged misconduct was improper and, if it was, then decides

whether the misconduct was “so flagrant as to constitute a

denial of due process and warranting granting a writ.” Id. at
No. 02-1403 Millender v. Adams 9

875, citing Boyle v. Million, 201 F.3d 711, 717 (6th Cir.

2000). 

We agree with the district court’s conclusion that the

prosecutor’s remarks were not improper. As noted by the

district court: 

This was not improper argument because recounting

these factual allegations did not only appeal to the jury’s

sympathies. Summarizing the nature of the crimes

committed and the circumstances of their commission

also served to educate the jury as to why some of the

victims were able to identify Petitioner as one of the

perpetrators and some were not. Further, by

summarizing the totality of the crimes committed by

Petitioner and in his presence, the prosecutor sought to

show that Petitioner was guilty of these crimes as either

a principal or an aider and abettor. To the extent that the

prosecutor’s depiction of the crimes served to educate the

jury about the difficulties faced by the victims as

witnesses and about the culpability of Petitioner as either

a principal or an aider and abettor his argument was not

improper.

Id. at 875. 

F.

As another basis to support his ineffective-assistance-ofcounsel claim, petitioner alleges that his attorney’s failure to

call a rebuttal witness amounts to constitutionally defective

representation. Petitioner argues that his attorney should have

called a witness to establish that he was out of state the day

before the crime occurred to rebut a witness’s testimony that

the latter witness had seen him on that day at a local hospital.

The failure to call a witness to rebut this testimony, according

to petitioner, cannot be attributed to trial strategy. 

10 Millender v. Adams No. 02-1403

We find no merit to this argument. The witness testified

that he saw petitioner “the Sunday before” the crime, which

occurred on a Monday. This is a vague statement and does

not specify whether he meant the Sunday immediately

preceding the crime or the Sunday from the week before.

Furthermore, the movements of petitioner the day before the

crime are not exculpatory points. “A defense counsel has no

obligation to call or even interview a witness whose

testimony would not have exculpated the defendant.”

Millender, 187 F. Supp. 2d at 877, citing Marra v. Larkins,

111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000). Therefore, on

these facts, the failure to call a rebuttal witness does not

amount to constitutionally defective assistance of counsel

sufficient to even reach the Strickland prejudice inquiry. For

this reason, we affirm the district court on this issue. 

G.

The final argument petitioner makes under his ineffectiveassistance-of-counsel claim is that the cumulative effect of

these alleged attorney errors effectively denied him a defense.

Petitioner relies on the “no meaningful adversarial testing”

standard set forth in Cronic, 466 U.S. at 659, and repeats that

his attorney failed to subject his case to any meaningful

challenge. Petitioner also cites the dissent in Moss v.

Hofbauer, 286 F.3d 851 (6th Cir. 2002), to support this claim.

As stated previously in this opinion, the Cronic standard is

inapplicable to petitioner’srepresentation because petitioner's

attorney engaged in an active defense at trial. Even under the

Strickland standard, petitioner's argument is unpersuasive, as

we do not find more than one error to consider cumulatively

under this argument. For these reasons, we find no basis

upon which to grant petitioner relief on this claim and hold

that the district court properly denied petitioner an evidentiary

hearing. 
No. 02-1403 Millender v. Adams 11

IV.

As a second ground upon which to grant habeas relief,

Mr. Millender argues that the trial court erred in not sua

sponte instructing the jury on mistaken identity and

impeachment by prior inconsistent statement. Petitioner

alleges that the court's failure to instruct on these two points

deprived him of his constitutional right to a fair trial. 

Unlike a state appellate court, federal courts reviewing

habeas petitions do not grant relief on a jury-instruction claim

simply because the instruction may have been deficient in

comparison to state-law models. Estelle v. McGuire, 502

U.S. 62, 72 (1991). Instead, our review is limited to

determining whether an alleged erroneous jury instruction “so

infected the entire trial that the resulting conviction violates

due process.” Ibid., quoting Cupp v. Naughten, 414 U.S. 141,

147 (1973). Although our focus is generally limited to

allegedly erroneous instructions, we find no reason to

distinguish this argument from the alleged failure to include

an instruction sua sponte in this case. 

For the reasons stated previously in regard to petitioner’s

claim that his attorney's failure to request these instructions

constituted constitutionally deficient representation, we are

similarly unpersuaded now. The trial court's failure to include

these instructions did not infect the trial such that petitioner’s

conviction violates due process. In addition, petitioner

procedurally defaulted on this issue and failed to establish

cause and prejudice. Similarly, we are unpersuaded that

failure to consider this claim would amount to a “fundamental

miscarriage of justice,” Coleman, 501 U.S. at 750, as the

omitted instructions would not have added any elements to

his defense, Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir.

1999), nor shifted a burden of proof, Sandstrom v. Montana,

442 U.S. 510, 524 (1979). Therefore, we find no basis upon

which to grant relief and affirm the district court on this issue.

12 Millender v. Adams No. 02-1403

V. 

As a third ground for habeas relief, Mr. Millender argues

that his right to due process was violated by the prosecutor’s

deliberate and repeated misconduct. Specifically, petitioner

alleges that the prosecutor’s closing argument, which

consisted of a synopsis of the violent crime and an alleged

appeal to the jurors’ sympathies, was improper. Petitioner

also argues that the prosecutor violated the rules of evidence

when he “falsely” stated that certain witnesses had seen the

petitioner prior to the day of the crime and when he referred

to guns that had been admitted into evidence but had not been

specifically identified by the victims as the guns used during

the crime. To determine whether relief on this ground is

warranted, we first consider whether the statements were

improper and, if they were, whether this impropriety amounts

to reversible error. U.S. v. Carroll, 26 F.3d 1380, 1385 (6th

Cir. 1994). 

Petitioner cites Washington v. Hofbauer to support his

claim that the prosecutor’s misconduct was improper. In

Hofbauer, the prosecutor went far beyond the bounds of

permitted conduct by introducing evidence of the defendant's

unseemly character, including statements about his alleged

abusive behavior, excessive alcohol consumption, and drug

abuse. Hofbauer, 228 F.3d at 699-700. The petitioner’s

attorney in that case also failed to object to the misconduct.

This Court held that the prosecutor’s statements were

improper, and we reversed the district court for the failure of

both the prosecutor and defense attorney to perform their

respective duties. Id. at 709.

Claims of prosecutorial misconduct are reviewed

deferentially on habeas review. Bowling .v Parker, 344 F.3d

487, 512 (6th Cir. 2003). As this court recently recognized:

To be cognizable, the misconduct must have so infected

the trial with unfairness as to make the resulting

conviction a denial of due process. Even if the
No. 02-1403 Millender v. Adams 13

prosecutor’s conduct was improper or even universally

condemned, we can provide relief only if the statements

were so flagrant as to render the entire trial

fundamentally unfair.

Id. (internal quotations omitted). For the reasons noted above

in Part III.E., the prosecutor’s detailed recitation of the events

on the night of the robbery were not improper. We further

conclude that, even assuming that the other remarks cited by

the petitioner were improper, the statements were not so

flagrant as to warrant reversal.

Flagrancy is determined by an examination of four

factors: “1) whether the statements tended to mislead the

jury or prejudice the defendant; 2)whether the statements

were isolated or among a series of improper statements;

3) whether the statements were deliberately or

accidentally before the jury; and 4) the total strength of

the evidence against the accused.”

Boyle, 201 F.3d at 717, quoting Carroll, 26 F.3d at 549, 550.

First, although the prosecutor’s remark that “the victims in the

house” remembered seeing the petitioner the Sunday before

the crime implies that more than one victim saw the

petitioner, the isolated slip of the tongue was unlikely to

mislead the jury. Second, although the guns in question had

not been identified by the victims as the weapons used during

the crime, the guns had been seized from petitioner’s codefendants and had been admitted into evidence. In any

event, it is undisputed that the guns used during the robbery

were at least similar to the guns at trial and there is no reason

to believe that the prosecutor’s remarks confused the jury. In

light of the total evidence against the petitioner, we conclude

that the isolated remarks concerning witnesses did not amount

to a denial of due process. 

14 Millender v. Adams No. 02-1403

VI.

As a final argument to support habeas relief, Mr. Millender

argues that the cumulative effect of the alleged errors he

presents supports granting relief. In addition to finding no

errors to consider cumulatively even if such a task were

within this Court’s province, we reiterate that “[t]he Supreme

Court has not held that distinct constitutional claims can be

cumulated to grant habeas relief.” Lorraine, 291 F.3d at 447.

For this reason, we affirm the judgment of the district court

on this issue. 

In conclusion, based on the foregoing, we hereby affirm the

judgment of the district court denying habeas relief.