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### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
T RENTON M ILL ENDER , Petitione r-Appell ant,

v.

S TANLEY A DAMS , Respondent-Appellee. X

- - - -
> , - - N No. 02-1403

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-70945—Gerald E. Rosen, District Judge.

Argued: April 29, 2004 Decided and Filed: July 15, 2004

Befor e: KENNE

DY, MARTI

N, and ROG

ERS, Circui

t Judges.

_________________ COUNSEL

ARGUED: John F. Royal, Detroit, Michigan, for Appe llant. Laura Gr av es Mo od y, OFFI CE OF THE ATTORNEY GEN ER AL, HABEAS CORP US DIVISION, Lan sing, Michigan, for Appellee. ON BRIE F: John F. Roy al, Detroit, Michigan, for Appellant. Laura Graves Moody, OFF ICE OF 2 Millender v. Adams No. 02-1403

TH E ATTORNEY GENERAL, HAB EAS CORPUS DIVI SION, L ansing, Michigan, for Appellee.

_________________ OPINION

_________________ BO YCE 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. Mil le nder's trial counsel was constituti onally

ineffe ctive; (2 ) wheth er the Michigan trial court 's failure to instruct jurors on mistaken identity a nd impeachment

by a prio r in consistent statement denied petitioner a fair tr ial; (3) w hether c omme nts the prosecutor made inclosing argument denied petitioner a fair trial; and (4) whether th e cumulative effect of these alleg ed errors denied petit ion er a fair trial. For the reasons that follow, we a ffirm the judgment of the district court.

I.

Late in the evening in July 1994, petitioner and two other individua ls broke into a home to commit a robb ery. Once inside the home, t he three assailan ts brutall y a ssaulted

its
o ccupan ts. Based on these actions, a Michigan state -court jury convicted Mr. Millender of t hree counts of first-degree criminal sexual con

duct, three c ounts of armed robbery , one co unt of as sault with intent to do great bodily ha rm, three counts of fe lonious assault, and one count of felonious possession of a fire arm durin g the co mmis sio n o f a fe lo ny. The trial court sentenced petitioner to a lengthy prison term following this conviction.

The Michigan Court of Appeals subs eque ntly denied two motions to remand and a mot io n for r ehearing filed by petitioner. Thereafter, in October 1996, the Michigan

CourtNo. 02-1403 Millender v. Adams 3

of Appeals affirme d his convi ction. I n Decem ber 1997 , th e Michigan Supreme Cou r

t denied petitioner’s motion for leave to appeal a

nd, in February 1998, the Michigan Supreme Court denied his motion for reconsideration. Petitioner then moved for an evidentiary he aring in the United States District Court. The district c ourt deni ed this moti on without p rejudic e in March 2000. InFebruary

2002, the district court also denied petit ioner 's petition f

or a writ of habea s corpus a

nd sua sponte denied him a certificate of appealability . In October 2002, this Court gra

nte d Mr. Millender's request for a certifi cateof appealability, a nd we certified four issue s fo r 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. Coy le , 261 F.3 d 594, 606 (6th Cir. 2001). Under

28 U.S.C. § 2254, a writ of habeas corpus may not be g ranted u nless the state-c ourt proc eeding s: (1) resulted in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Feder al law, a s determi

ned by the Supre

me Court of the United States; or (2) resulted in a decision that was based on an unreasonabledetermination of the facts in light of the evidence presented in the State court proce edings.

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. Tay l or, 529 U.S. 362 (2000) (O'Connor, J., concurring). To gain habeas relief under the first category , involving state decision s contra

ry to federa l law, a de fendant

must show that the state court

arrived at a conc lusion oppo site to that reached by

the Supr eme Court on a question of 4 Millender v. Adams No. 02-1403

law' or that the state court decided a case differently

than th e Supreme C ourt has on a set of materia lly indisting uishable fa ct s. Un de r t he se co nd ca te go ry, involving the unreasonable application of federallaw by
a state court, a federal habeas court must ask whether the state court’ s app lication of clearly established federal law
was objectively rea sonable. If the fede ral c ourt finds that, viewed objectively , the stat e c ourt has c orrect ly identified th e gove

rning le gal pri

nciple f rom the Supreme Court 's decision s but unre asonably applied t hat princ iple to the fac ts of the p risoner ’s case , it may grant t he writ. Washington v. Hofb au er , 228 F.3d 689, 698 (6th Cir. 2000) (citationand internal quotations omitted). With respe ct to all four issues raised by petitioner, we find no erro r in the judgment of the district court and affirm.

III.
The first issue Mr. Millender

raises to support his claim for habeas relief i s ineffective assistance of counsel. Petitioner alleges that his attorney violated his rig ht to effective representation, which is g uar anteed u

nder the Sixth Amendment

in criminal cases. “The benchmark for judging any claim of i

neffectiveness

must be whe

ther cou nse l’ s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a j ust re sult.” Strickland v. Washington , 466 U.S. 668, 686 (1984). Millender advan ce s several grounds for relief to support

this claim , including his attorney ’s failure to object to the i ntr oduction o f eviden ce, fai lure to ob

ject to vario us in-cour

t identifi cations a

nd prosec

utorial r emarks, fai lu re to call a rebuttal witness, and failure to make an opening statement or request certain instructions. We review de novo the district co urt’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

Inits reviewof the ineffective-assistance-of- counsel claim, the district c ourt appl ied the sta ndard se t out in Strickland

and ruled that Mr. Mi llender ’s counse l was not c onstitutionally ineffective. The Strickland standard inv olves a two-step inquiry that requires a petitioner to show (1) that his trial representation

was deficient, or objectively unr eas onable, and (2) that prejudice re su lted 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 di fferent.” Id. at 694. Mr. Millender argues that the districtcourt erred not only in ruling that

his counsel was not inef fective, but also in

analy zing his c laim unde

r th e Strickland

standard rather than the less stringent standard set outin United Sta tes v. Cron ic , 466 U.S. 6 48 (1984). Under Cronic , prejudice is presumed, and therefore need not be proved, if pe ti ti on er ’s co un se l “ en ti re ly f ails to subject the prose cutio n's case

to mea ning ful a

dver sari al te sting [.]” Cronic , 466 U.S. at 659. Throughout

the trial, petitioner’s attor ney was a n active particip ant: he cross-examined witnesses, made proper objectio ns, andpresented a closing arg ument. This level of representation

does not fall below the lowthreshold required by Cronic . There fore, th e dis trict cour t did not er r in its applicationof the S trickland standard, and we rely

on the same standard in our review of this claim.

A.
Petitioner allege s that his attorney’s f ailure to file a motion to suppress evidence from witness and voice-identifica tion police lineups an d in-court identifications constitutes ineffective assistance of counsel. Under United Sta tes v

. Wa de , 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

argue s that his attorney should have requested a Wade

hearing to suppre ss the lineup identifications because he claims these ide nt ifications were 6 Millender v. Adams No. 02-1403

impermiss ibly

sugge stive. He

allege s the lin eup was suggestive because he was the tallest suspe ct; he alleges the voice i dentification was sugg estive be cause, a ccordin g to him, his voice did

no t s ou nd “i n a ny w ay” like the other suspect’s voices and it was conduct ed at th e same time as the identificationlineup. Petitioner also argues that his attorney should h ave objecte d to in-co urt identi fication s of him beca us e eyewitness testimony is “extremely unreliable” yet has a profound impact

on juries. T

hus, acc ording t

o petition er, hi s attorne

y’ s failure

to file a motion to sup

press this identification evidence constitutes ineffective assistance of counsel becau s e h is pr im ar y de fe ns e w as mi st ak en id en ti ty.

We hold that p etit ioner 's attorney’s f ailure to file a motion to suppress

does not c onstitute i

neffective assis tance of counsel. Insome circumstances, discrepanciesin height may be impermissibly sugg estive. See Foster v. C alifor nia , 394 U.S. 440, 442-43 (1969). Although petitioner was taller than the other s u spects used in the lineup, he was only one inch taller th an two oth er suspe cts, all of whom were roughly

the
same height, and all of

the suspe cts were dressed similarly and were approximately the

same age. I

n addition, as the Mi chigan Court of A

ppeals po inted out, the fact that only three of the six vic

tims identif

ied petiti oner in

the li neup belies his argument

that it was impermissibly sugg estive. As to the voice-identification evi d ence, a defense attorney present at the lineup made no objection to or comments about any discrepancy

in the voices. Con sequ ently, beca use there
was nothing to suggest that the lineup procedure was in any way imprope r, petitioner’s counsel was not ineffective for failing to seek a Wade

hearing or

failing to suppress evidence concerning

the thre e victims’ identific atio n 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 mot

ion wher e there was n o reasona

ble probability that motion would be gra nted).

F ur ther, because

the lineu

p was not im

permissib ly suggestive, petitioner’s counsel did not err in failing to objectNo. 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 d istrict court, the victims’ failure to identify the petition er duri ng the lineup went to the credibilityof the incourt identifications, not their admissibility. United States v. Causey , 834 F.2d 1 277, 1286 ( 6th Cir. 198 7); People v. Barclay , 528 N.W.2d 842 (Mich. App. 1995). Co ns eq ue nt ly, petitioner’s counsel was not ineffective for failing to object to the admission of the in-court identifications.

B.
Petitioner also a lleges that h is att orney's failure to object to the introduction into evidence of a picture of a pai r of pliers found at t he crime scene, a similar pa

ir of plie rs, a handgun,
a shotgun, and photographs of the guns constitutes ineffective assistance of counse l. He argues that the introduction of these items, none of which were proven to be wea pons used inthe crime, was infla

mmatory and prej udiced th e jury

agains t him. Though the sigh

t of these items, given the violent nature of the crime, may ha

ve been unpleasant for the jury , the attor ney's failure

to object

to their a

dmitt ance does not constitute ineffe ctive as sistance

of counse l. Applying Stricklan d , we hold that it was not ob

jectivel y un reasona ble for Mr. Millender’s attorney

notto 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 posse ssion. Thu s, this evid ence re asonably

could have weighe d in

petitoner’s favor in the jury’ s determination of guilt. Therefore, the judgment of the district cour t on the physical-evide

nce-admission issue is affirmed.

C.

As another basis for his ineffective-assistance- of-counsel claim, petitioner

argues that

his attorney should have made an openin g statement. An attorney ’s decision not to make a n 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), qu otin g United Sta tes v. RodriquezRamirez , 777 F.2d

454, 457 (9th Cir. 1985). We find no error inthe district court ’s determination that the attorney ’s decisionwas not ob

jectivel y un reasona ble, and t herefore did notamount to ineffective assistanc e of c ounsel. See Stri ckland , 466 U.S. at 687-91. We affirm the judgment of the district court on this issue.

D.
Petitioner complains tha t his attorney wa s ineffective for failing to request jury instructions on mistaken identity, which
was petitioner’s only defe nse, an d on the impeachment of witnesses by prior inconsistent st ate me nts. Even assuming that petitioner’s counsel erred in f ailing to request these ins tru ctions, however, petitioner has not demonstrated p rejudi ce because—for the reasons set forth in the district court’s opinion—the instruction given by the c ourt and counsel’s closing arguments put the issues squarely before the ju ry. Mi llende r , 187 F. Su pp. 2d at 8 73-74; Weighall v. Middle , 215 F.3d 1058, 1063 (9th Cir. 2000).

E.
Petitioner next argues that his attorney ’s failure to object to alleged prosecu torial misc onduct d

u ring the prosecutor’s closing argument c onstitutes ineffective assistance of cou nsel

. “On habeas review, a court's r ole is to determine whether [alleged prosecutorial misconduct] was so eg regiou s as to render the entir e trial f undament ally unfair.” Millender , 187 F. Supp . 2d at 875, c itin g Serra v. Michi gan Dep’ t of Corr. , 4 F.3d 1348, 1355-56 (6 th Cir. 1993). In conducting such a determination, a revi ewin g court first decides whether the alleged misconduct was improper and, if it was, then decides whether the misconduct was “so flagrant as to con stitute a denial of due process and warranting granting a writ.” Id. atNo. 02-1403 Millender v. Adams 9

875, citi ng Boyle v. Mi llion , 201 F.3d 711, 717 (6th Cir. 2000).

We agree

with the di strict co

urt’s co nclusion t

hat th e prosecutor’s remarks were not improper. A s noted by the district c ourt:
This was not improper argument because r ecounting thesefactual allegations did not only appeal

to the jury’s sym pathies. Summarizing the nature of the crimes
c o mmittedand the circumstances of their commission also served to edu cate the jury as to why some of the victims were a

ble to i dentify Petitioner as one of the per petra tors and some were not. Further, by
sum marizing the totality of the crimes committed b y Petitioner and in his presenc e, the pr osecutor sought to show that P etitioner

was gui lty

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 vi c tims as witnesses and about

the culpa bility of Petitioner as either a princi pal or an aider a nd abettor his argument was not improper.

Id. at 875.

F.

As another basis to support his ineffective-assistance-ofcounsel claim, petitione

r alleg es that his

attorne y’ s failure

to calla rebutt

al witnes s amounts to

constituti o na lly defective repres e ntat ion. Petitioner argues that his attorney should have calle d a witness to establish that he was out of state t he da y before the crime occurred to rebut a witness’s testimony that the latter witness had seen

him on that d

ay at a loca l hospital. The failure to call a witness to rebut th is te st im on y, according to petitioner, cannot be attributed to trial strategy

. 10 Millender v. Adams No. 02-1403

We find no mer it to th is argument. The witness testified that he saw pe

ti tione r “the Sunday be fore” the crime, which occurred on a Monday. This is a vag ue statem ent and d oes notspecify whe

ther he mea

nt the Sunday

immediate ly preceding the crime or the Sunday from the we ek before. Furthermore, the movements of petitioner the day before the crimeare not exculpatory points. “A defense counsel has no obligation

to call or ev en int erview a witness w

hose testimony would not have e xculpated the defendant.” Mill ender , 187 F. Supp . 2d at 877, c itin g Marra v. La rkin s , 111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000). Therefore, on thesefacts, the failur

e to call a

rebutta l witn ess does not amount to constitutionally defective assistance o f counsel sufficient to even reach the Strickland prejudice inquiry. F or this reason, we affirm the district court on this issue.

G.

The final ar

gument p etitioner

makes und

er his ineffectiveassistance-of-counsel

claim is that the cumulative effe ct of theseallege d attorne

y e rrors e ffectiv ely

denied hi m a defense. Petitioner relies on the “n o mean ingful advers arial testi ng” standard set forth in Cronic , 466 U.S. at 659, and repeats that his attorne

y f ailed to su

bject his c ase t o any meaning ful challenge. Petitioner

also cite s the di ssent in Moss v. Hofbauer , 286 F.3d 8 51 (6th Cir . 2002), to support th

is claim.

As stated pr

eviously inthis opinion, the Cronic standar d is inapplic able to p etitioner’s repr esent ation becaus e peti tion er's attorney engaged in an active defense at trial. Even under the Strickland

stand ard, p etit ioner 's argument is unpersuasive, as we do not find more than one error to consider cumulativ ely under this argument. For

these re asons, we

find no ba sis upon which to gran

t petitione

r relief on this cla

im 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 g rant habeas relief, M r. Millender

argue s that the t

rial cou rt erre d in not sua spont e in st ru ct in g t he ju ry o n m is ta ke n i de nt it y an d impeachment

by prior inconsiste nt 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, f ed eral courts reviewing habeas petitions do not grant relief on a jury -instruction claim simply because the instruct ion m ay have be en defic ient in
co mparisonto state-law models. Estelle v . McGuire , 502 U.S. 62, 72 (19 91). I nst ea d, our re

view is limi

ted to determining whether

an alleg ed erroneous jur

y in s truction “ so infected the entire tri al that the resulting conviction violates due process.” Ibid. , quot ing Cupp v. Naughten, 414 U.S. 141, 147 (1973). Although our focus is genera lly limited t o allege dly erroneous instructions, we find no rea son 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 reques t these instructions constituted

constitutionally deficient repr esentation, we are similarly unpersuaded now. The trial court's failure to include theseinstructions did not infect the trial such that petitioner’s convictionvi ol ate s du e pr oce ss . In add ition, petitioner procedu rally defaulted on this issue and failed to es tabl ish
cause and prej udice. Sim

i l arly, we a

re unpersuaded that failure to conside

r this claim wou

ld amount to a “fundamental misca rriage of justice,” Coleman , 501 U.S . at 7 50, as the omittedinstructions would n o t have ad ded 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 whichto grant relief

and affirm

the district court on this issue. 12 Millender v. Adams No. 02-1403

V.

As a third g

round for habeas r elie f , Mr. Millender argues that his right to due process was violated by the prosecutor’s deliber ate and repeated miscon du ct. Specifically, pe titioner alleges that the prosecutor’s closing argume nt, which consisted of a synopsis of the violent cri me and an alleged appeal to the jurors’ sy

mpathies, was improper. Petitioner also argues that the prosecutor violated the rules of

evidence when he “falsel y” stat ed that certain witnesses had seen the petitioner prior to the day of

the crime and when he referr ed to guns that had been admitted into evidence but had not been specific ally

identified by the

victims as the guns used during the c r ime. To de

termine w

hether r elief on this gro und is warranted, we first consider whether thest atements were improper and, if they we

re, whether

this improprie

ty a mounts to reversible error. U.S. v. Ca rroll , 26 F.3d 1380, 1385 (6th Cir. 1994).

Petitioner cites Wash ington v. H

ofbauer to support

his claim that the prose cutor ’s m is con duc t wa s i mp rop er. In Hofbauer , the prosecutor went far bey ond the bounds of permitted conduct by

introducing evidence of

the de fendan t's unseemly charac ter, inc luding st

a te ments about his alleged abusive behavior, exces si ve alcohol consumption, and drug abuse. Hofbauer , 228 F.3d at 699-700. The petitioner’s attorney in that ca se also f

ailed to o bject to th

e mis c onduct. This Court held that the prosecutor’s statements were improper, and we reversed the district court for the failure of both the prosec utor and defe nse attor ney to perform their respective duties. Id. at 709.
Claims of prosecutorial misconduct are reviewed defere ntially on habeas review. Bowling .vParker , 344 F.3d 487, 512 (6th Cir. 2003). As this court recently recognized:

To be cogniza

ble, the m isconduct must have

so infected th e tri al with unfairness as to make the resulting
con vict ion a denial of due process. Even if theNo. 02-1403 Millender v. Adams 13

prosecutor’s conduct was improper o r ev en univer sally condemned, we can provide r elief on ly if the state ments
were so flagrant as to render the entire trial fundamentally unfa

ir.

Id. (internal quotations omitted). For the reasons noted above inPart III.E., theprosecu

tor’s detailed re citation o f the eve nts
on the n ight of the robbery were not improper. We furthe r conclude that, even assumingthat the other remarks cited by the petitioner were improper, the statement s wer e not so flagr ant as to w arrant

revers al. Flagran cy i s determined by a

n examination of four factor s: “1) whether the statements tended to mislead the jury or preju dice the defenda nt; 2) whether t

he state ments
were isolated or among

a serie s of improp er state ments; 3) whether the statements were deliberately or accide ntally before the jury ; and 4) th e tota l str ength of the evidence against the acc used.” Boyle , 201 F.3d at 717, quot ing Carroll , 26 F.3d at 549, 550. First, although the prosecutor’s remark that “the victims in the house” remembered seeing the petitioner the Sund ay befor e the crime imp lies that more than one vic tim saw the petitioner , the isolat

ed slip of

the tong ue was un

likely to mislead the ju ry. Secon d, alt hough the guns in question had notbeen identified by the

victims as the weapons used during the crime, the guns had been seized from pe titioner’s codefend ants and had been admitted into evidence. I n a n y event, it is undisputed tha t 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 th e ju ry. In light of the total evidence against the petitioner, we conclude that the is olated remarks concerning witnesse s 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 allege d erro rs he present s supports granting rel ief. In addition to finding no
errors to conside

r cumula ti vely ev en if such a task were within this Court’ s provinc e, we re iterate that “[t]he

Supreme Courthas not he ld that dist inct 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.

Inconclusion, based

on the foregoing, we her

eby aff irm the judgment of the district court deny ing habeas relief.