RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0177p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

L ARRY D EVEL S TEWART , Petitioner-Appellee ,

v

.

T ONY T RIERWEILER , Warden, Respondent-Appellant

. ┐ │ │ │ │ │ │ │ │ ┘ No. 16-2149

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:15-cv-11843—Gerald E. Rosen, District Judge. Argued: August 3, 2017 Decided and Filed: August 14, 2017 Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

_________________ COUNSEL ARGUED: Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Ed mund S. Sauer, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee. ON BRIEF: Andrea M. ChristensenBrown, OFFICE OF THE MI CHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Edmund S. Sauer, Jessica Jernigan-Johnson, Brian R. Epling, Kimberly M. Ingram, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellee.

_________________ OPINION

_________________ SUTTON, Circuit Judge. In this habeas cas e, Larry Stewart claims that a Confrontation Clause violation and prosecutorial misconduct undermined the fairness of his murder trial. But 

### >No. 16-2149 Stewart v. Trierweiler Page 2

because the state court did not unr easonably reject these claims, we must reject his petition. We reverse the district cour t’s contrary decision.

I. On the morning of December 19, 2011, Kevin Brown arrived at an apartment to pick up Reynatta Hamilton for what he thought was a date. Unbeknownst to Brown, Hamilton’s boyfriend, Larry Stewart, was waiting for him. A struggle ensued. Shots were fired. The two men grappled with each other dow n a stairwell and out the door of the apartment complex. At the end of a trail of bl ood, Brown lay dead on the grass with several gunshot wounds in his chest. Stewart was gone. Michigan charged Stewart and Hamilton with felony murder, felon in possession of a firearm, armed robbery, and conspi racy to commit armed robbery. The court held a joint trial.

The evidence at trial showed that Stewar t and Hamilton planned to rob Brown. Hamilton, who had met Brown while she was wo rking at a McDonald’s drive-through, would call Brown to her cousin’s apartment for a sup posed date. Stewart w ould wait with a gun to demand Brown’s money. Witnesses testified that Stewart was with Hamilton at the apartment the night before the murder; that Stewart brandi shed a gun, asserted it was his, said he was “going to rob somebody,” and invited others to he lp him that night, R. 8-8 at 35; that Hamilton warned Stewart to hide the gun from her cousin and then put it in her purse; that Stewart was going in and out of the apartment in the early morning; that Stewart left the apartment for good just five minutes before scuffling and gunshots we re heard in the hallway; and that, after she’d been hit by a stray bullet, the first person Hamilton called was Stewart. Hamilton’s phone records, as well as statem ents she made to po lice, corroborated the witnesses’ testimony. In the two days lead ing up to the shooting, Hamilton’s phone made 127 different contacts with Stewart’s phone and 28 co ntacts with Brown’s. In the last minutes before the murder, Hamilton was on the phone w ith both men. Brown called Hamilton at 8:30 AM and hung up five minutes later. But Stewart connected to Hamilton’s line at 8:31 AM. For nearly all of Brown’s call, Stewart and Ham ilton were connected via call waiting. HamiltonNo. 16-2149 Stewart v. Trierweiler Page 3

admitted reaching out to Brown because he often ha d a lot of money on him. After the shooting, she repeatedly told po lice that “it wasn’t supposed to go down like this.” R. 8-11 at 23. The jury found Stewart guilty on all counts. Th e court sentenced him to life for the firstdegree felony murder conviction, two years for th e felony-firearm convicti on, and twenty-five to fifty years for the armed robbery and conspiracy convictions. The jury likewise found Hamilton guilty on all counts, and the court sentenced her to life, two years, and ten to twenty years, respectively. Stewart challenged his convicti ons on direct appeal on six grounds: (1) the prosecution violated the Fifth Amendment by mentioning his post- Miranda silence; (2) the court violated his Sixth Amendment right to confrontation by ad mitting some of Hamilton’s statements; (3) the convictions for conspiracy to commit armed r obbery and first-degree felony murder lacked sufficient evidence; (4) the court failed to instruct the jury on a lesser in cluded offense; (5) the prosecution engaged in vari ous instances of misconduct; a nd (6) defense counsel was constitutionally ineffective. The Michigan Court of Appeals affirmed Stewart’s conviction, finding some claims forfeited, others wit hout error, and still others harmless. See People v. Stewart , No. 313097, 2014 WL 1233946 (Mic h. Ct. App. Mar. 25, 2014) (per curiam). The Michigan Supreme Court declined to review the appeal. Stewart filed a federal habeas petition raising the same claims. The district court granted relief on the confrontation and prosecutorial misconduct claims a nd did not reach the others.

II. In habeas cases, we give the benefit of the doubt to the state courts’ handling of the case. Under the Antiterrorism and Effective Death Pe nalty Act of 1996, we will not override state criminal convictions unless the state court unreas onably applied Supreme Court precedent or the conviction turned on unreasonable fact findings. 28 U.S.C. § 2254(d). Confrontation Clause. During the joint tria l of Stewart and Hamilt on, Stewart claims that the state trial court violated his Sixth Amendmen t right to be confront ed with the witnesses against him by admitting certain statements Hamilton made to police officers. The state courtsNo. 16-2149 Stewart v. Trierweiler Page 4

did not treat these claims casually. The trial c ourt as an initial matter excluded some of the statements. But it eventually permitted the o fficers to introduce Hamilton’s statements that (1) she and Stewart were dating; (2) she knew Br own and had met with him once before; (3) she saw Stewart with a gun on the night of Decem ber 18; and (4) she called Stewart and Brown moments before the shooting. The state appellate court agreed with Stew art that some of the admitted statements violated his confrontation rights. It held that Hamilton’s stat ements about her relationships with Stewart and Brown were testimonial hearsay in violation of the Sixth Amendment. Stewart , 2014 WL 1233946, at *5; see Crawford v. Washington , 541 U.S. 36, 51–52 (2004). And it held that her statements about Stew art’s possession of a gun and her phone calls immediately before the shooting implicated Stewart in vi olation of the Sixth Amendment. Stewart , 2014 WL 1233946, at *5; see Bruton v. United States , 391 U.S. 123, 126 (1968). But the court concluded that both errors were harmless in view of the co nsiderable other evidence that Stewart murdered Brown.

That conclusion receives deference unde r AEDPA because the state court fully adjudicated Stewart’s confrontation claim. See Mitchell v. Esparza , 540 U.S. 12, 17–18 (2003). And we cannot say that the st ate court unreasonably applied fe deral law in rejecting it. See Davis v. Ayala , 135 S. Ct. 2187, 2198–99 (2015). In assessing any potential prejudice fr om a Confrontation Clause violation, courts on direct review apply Chapman ’s harmless-error standard. Brecht v. Abrahamson , 507 U.S. 619, 636 (1993); see Chapman v. California , 386 U.S. 18, 24 (1967). That st andard directs courts to consider “a host of factors,” including the impor tance of the challenge d testimony, whether the testimony is cumulative, and the overall evidence of guilt. Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986).

That’s what the state court did. It found th at the confrontation e rror was not “outcomedeterminative” because each of Hamilton’s statements was cumulative of properly admitted evidence. See Stewart , 2014 WL 1233946, at *5. Justin Lane had already testified that Stewart was Hamilton’s boyfriend and that he frequen tly came over to the apartment. Brian MayNo. 16-2149 Stewart v. Trierweiler Page 5

described Stewart’s possession of a gun the night before the s hooting and how Stewart planned to use it to rob somebody. And the telephone re cords confirmed Hamilton’s admission that she had contacted Brown and Stewart immedi ately before Brown was killed.

The state court noted that the “evidence of [Stewart’s ] guilt was compelling.” Id. Combining the timing of the telephone record s with eyewitness testimony about Stewart’s behavior on the night before a nd the morning of the shooting confirms the nature of the altercation in the hallway. The admissible evidence offers plenty of support for the jury verdict.

Stewart’s conviction had at least as much evidence as the one the United States Supreme Court upheld in Harrington v. California , 395 U.S. 250 (1969). The de fendant in that case admitted he was at the scene of the crime and fl ed after a shooting, and other witnesses testified that he had a gun and was using it for a robbery. See id. at 252–54. The Court found the confrontation error harmless because the cas e against the defendant was “overwhelming.” Id. at 254. A similar conclusion applies here. Stewart resists that conclusion, pointing to this question that the jury asked during deliberation: “Is the report or statement[] from Ms. Hamilton evidence that the jurors can review?” R. 8-11 at 145. He ma intains that two of our cases require us to treat this question as proof that Hamilton’s statements were critical, rath er than cumulative, when it came to this jury. See Vasquez v. Jones , 496 F.3d 564, 576 (6th Cir. 2007); Fulcher v. Motley , 444 F.3d 791, 810– 11 (6th Cir. 2006). Three problems undermine th is argument. One is that neither opinion constitutes clearly established la w under AEDPA. Another is that neither the trial judge nor the parties took the jury to be asking about anyt hing other than the form in which any of the statements were made. The judge’s response to th e jury’s question proves th e point. “Other than what you’ve heard from the officers testifying [about Hamilton], no, there are no statements.” R. 8-11 at 145–46. The judge thought the jury wa s asking only for a written copy of Hamilton’s statements to review . Apparently, Stewart’s counsel agreed . He had no objection to the judge’s response. No one, besides Stewart now on appeal, thought that the jury was asking about its ability to consider Hamilton’s statements against Stewart.No. 16-2149 Stewart v. Trierweiler Page 6

The last problem is the difficulty of using a jury query in this way, whether as proof of the difficulty of the case with respect to one co nviction (Hamilton) or the other (Stewart), and whether as useful proof at all. Did this jury want to use Hamilton’s statements only against Hamilton? Or did it plan to use them against Stewart? Did this jury ask because it thought the remaining evidence against Stewart was weak? Or was it confused by the judge’s instructions about the use of evidence? And perhap s most importantly, if this jury had not asked the question, would the opposite inference apply—that Stewart is guilty and that any error was harmless? Each set of inferences turns on far too much speculation to help the inquiry rather than distract from it. In the end, any error was cumulative of admi ssible evidence, and there was considerable admissible evidence of Stewart’s guilt. The stat e court reasonably conc luded that the admission of Hamilton’s statements was harmless. In view of this conclusion, we need not consider the State’s argument that Stewart defaulted some of these claims, as the claims fail anyway. See 28 U.S.C. § 2254(d).

Prosecutorial Misconduct. Stewart separately alleges that the prosecutor engaged in misconduct during cross-examination and closin g arguments by asking Stewart to comment on witness credibility, expressing his opinion on the evidence, referring to redacted statements by Hamilton, denigrating defense coun sel, and quoting from the movie Gladiator . To his mind, these mistakes rendered the tr ial unfair and denied him due process. We disagree. At the outset, we must referee a dispute a bout whether AEDPA deference applies to these rulings given that the state court reviewed some of these claims for plain error. Our circuit has not been a paragon of clarity a bout whether a state court’s plai n-error ruling amounts to a ruling on the merits under AEDPA. See Leonard v. Warden, Ohio State Penitentiary , 846 F.3d 832, 851 (6th Cir. 2017). In 2009, we held that AEDPA a pplies to a state court’ s plain-error analysis if it “conducts any reasoned elaborati on of an issue under federal law.” Fleming v. Metrish , 556 F.3d 520, 531 (6th Cir. 2009). But in 2014, we said that “plain-error review is not equivalent to adjudication on the merits, which would trigger AEDPA deference.” Frazier v. Jenkins , 770 F.3d 485, 496 n.5 (6th Cir. 2014).No. 16-2149 Stewart v. Trierweiler Page 7

Both rulings cannot be right, as they look in opposite directions. Trimble v. Bobby , 804 F.3d 767, 777 (6th Cir. 2015). To resolve this Janus-like dile mma, we look to the oldest decision on point. See United States v. Abboud , 438 F.3d 554, 567 (6th Cir. 2006). That is Fleming . If that weren’t enough, our sister circuits sing with one voice on this issue—relying, in part, on our earlier decision. See, e.g. , Lee v. Comm’r, Ala. Dep’t of Corr. , 726 F.3d 1172, 1207–10 (11th Cir. 2013); Rolan v. Coleman , 680 F.3d 311, 319–21 (3d Cir. 2012); Douglas v. Workman , 560 F.3d 1156, 1177–79 (10th Cir. 2009). Stewart tries to sidestep this conclusion on the ground that Fleming failed to respect earlier circuit decisions. But he misreads the de cisions. They stand only for the proposition that a state court’s plain-error an alysis cannot resurrect an ot herwise defaulted claim. Fleming , 556 F.3d at 530. Confirming this conclusion is Harrington v. Richter . It obligates us to “presume[] that the state court adjudicated the claim on the merits” in ambiguous situations. 562 U.S. 86, 99 (2011). Despite two fleeting references to “plain error review,” the state court’s detailed opinion “is not even ambiguous” about its reliance on federal law to address the merits of Stewart’s claims. Frazier , 770 F.3d at 506 (Sutton, J., concurring in part and concurring in the judgment). The key question on the merits “is whether the prosecutor’s comments so infected the trial with unfairness as to make the resul ting conviction a denial of due process.” Darden v. Wainwright , 477 U.S. 168, 181 (1986) (quotation omitted). Because that standard is “a very general one,” courts have considerable leeway in resolving such claims on a case-by-case basis. Parker v. Matthews , 567 U.S. 37, 48 (2012) (per curiam). That leeway increases in assessing a state court’s ruling under AEDPA. We “cannot set aside a state court’s conclusion on a federal prosecutorial-misconduct claim unless a petitioner ci tes . . . other Supreme Court precedent that shows the state court’s determination in a pa rticular factual context was unreasonable.” Trimble , 804 F.3d at 783.

Darden illustrates the high bar a defendant n eeds to clear to win a prosecutorial misconduct claim. The prosecutor in that case aske d the jury to “give [the defendant] death” because “[t]hat’s the only way I know that he is not going to get out on the public.” 477 U.S. atNo. 16-2149 Stewart v. Trierweiler Page 8

180 n.10. After referring to the defendant as “thi s animal,” and adding for good measure that he should be kept on a leash, the prosecutor wished for his death and disfigurement in increasingly brutal terms: “I wish I could see him sitti ng here with no face, blown away by a shotgun.” Id. at 180 nn.11–12. Even though these comments “undoubtedly were improper,” the Court still found “they did not deprive the petitioner of a fair trial” in view of the district court’s curative jury instructions—that the la wyers’ comments do not amount to evidence. Id. at 180–81.

Stewart does not clear Darden ’s high bar, made higher still by AEDPA. He claims that the prosecutor crossed the line by asking him a bout another witness’s cr edibility during crossexamination: “So everybody is lying except you? Bryan May is a liar, right?” R. 8-11 at 57. The state court agreed that the prosecutor misst epped but determined that the trial court’s curative instructions about cred ibility determinations corrected the problem. No due process violation arose from this violati on for another reason. The exchange arguably benefited Stewart. After the prosecutor suggested Stewart hardly knew May, Stewart promptly corrected him. “We’ve had a couple altercations,” he said. Id. And “[w]e don’t care fo r each other too much.” Id. The question permitted Stewart to argue that a ke y prosecution witness had a motive to lie. Stewart next points to some of the prosecutor’s comments during closing arguments. But he does not account for these comments “in context,” United States v. Young , 470 U.S. 1, 11–14 (1985), “to determine their eff ect on the trial as a whole,” Darden , 477 U.S. at 182.

Consider Stewart’s criticism of the prosecutor’s final flour ish during closing argument. The prosecutor recalled a line from the movie Gladiator : “[I]s Rome worth one good man’s life? We believed it once. . . . Make us believe it again. He was a soldier of Rome. Honor him.” R. 8-11 at 101–02. The prosecutor then attempted to put jurors in the shoes of the Praetorian Guards. “I don’t know whether Kevin Brown was a soldier, but I know that he was an uncle, he was a brother and he was a son. He has a lovi ng family. He was someone. I ask you to honor him.” Id. But if this part of the trial succumbed to excessive theatrics, it wasn’t the prosecutor’s fault alone. Hamilton’s counsel used a thespian opener of his own. After a simple, “Thank you, your Honor,” defense counsel recited Lewis Carroll’s Through the Looking-Glass : “The time has come, the walrus said, to speak of many th ings. Of shoes and ships and ceiling wax and cabbages and kings. And why the sea is boiling hot and whether pigs have wings.” R. 8-8 at 23.No. 16-2149 Stewart v. Trierweiler Page 9

When a lawyer invokes a literary reference to aid his cause, he should not be su rprised if an adversary does the same for his. We realize that it was Hamilton’s counsel, not Stewart’s counsel, who started down this path. But the question is no t whether the invocation of Gladiator was a good idea or even proper; it’s whether, in context, it would deny Stewart a fair trial. See Young , 470 U.S. at 12. Nothing of the sort happened. Stewart adds that the prosecutor injected his personal opinion by using the first-person singular pronoun, “I.” But we agre e with the state court that the prosecutor was merely “arguing reasonable inferences from the evidence.” Stewart , 2014 WL 1233946, at *10. Here’s one example. After saying “I don’t really think that ’s how it happened,” the prosecutor discussed his theory of circumstantial evidence and why the pr osecution’s account diverged from Stewart’s. R. 8-11 at 84–85. Here’s another. The prosecutor said “I think it’s a complete lie” that Stewart didn’t notice he had been shot in the arm for almo st an hour; but the prosecutor said so only after discussing how the .357 Magnum was strong enough to hit Hamilton after “go[ing] through drywall.” Id. at 101. Even if the use of “I” conveyed some vouching, the prosecutor did not stand alone. Stewart’s counsel twice characterized the pros ecution’s witnesses as “stool pigeons,” who might not “dare come to court.” R. 8-8 at 21. Before they even testified, Stewart’s counsel said “I submit to you that [their] testimony will not be credible.” Id. The trial court could fairly discount thes e prosecution and defense comments as made “in the heat of argument.” Dunlop v. United States , 165 U.S. 486, 498 (1897); see Darden , 477 U.S. at 182; Young , 470 U.S. at 17–18 (noting that the jury understood “the prosecutor was countering . . . defense counsel’s argument that the evidence established no such crime”). Stewart next criticizes the prosecutor for referri ng to “defense tactic[s]” as “crap.” R. 8- 11 at 118. Inappropriate though the comment was, context mitigates it. After Stewart’s counsel presented only the first half of the jury’s flight instruction and suggested Stewart ran for innocent reasons, the prosecutor said this in rebuttal: Finally, let me read to you, this is the kind of defens e tactic crap I can’t stand

. The rest of that jury instru ction. . . . Let me give you th e last sentence. “However, a person may also run or hide because of a consciousness of guilt.”No. 16-2149 Stewart v. Trierweiler Page 10

Id. The gist of the comment, if not all of its language, was “invited by [and] responsive to” defense counsel’s closing argument. Darden , 477 U.S. at 182.

The trial court’s curative instructions also leavened any risk of prejudice from the prosecutor’s and defense counsel’s comments. Immediat ely after closing arguments, the judge instructed the jury that it may not let sympathy or the possi ble penalty influence its decision. He admonished the jury that it “is your job and nobody else’s” to decide the facts. R. 8-11 at 123– 24, 127–28. He reminded jurors that their duty ex tended to assessing the credibility of Hamilton’s statements, the meaning of Stewart’s flight, and the testimony of expert witnesses and police officers. Above all else for present purposes, the judg e reminded the jury that nothing the lawyers said or asked counted as evidence. Stewart’s counsel reminded jurors of the same thing during his opening statement. And Hamilton’s counsel repeated that point dur ing closing. As in Darden , the trial court’s curative in structions support the state c ourt’s conclusion that Stewart received a fair trial. See 477 U.S. at 182. That conclusion wa s not “so lacking in justification that there was an erro r well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington , 562 U.S. at 103. It’s worth adding that the prosecutor, desp ite some missteps, proactively sought the judge’s guidance outside the presence of the jur y. And when he was unclear on evidentiary rulings, he asked for clarificati on about what was permissible. Over the course of a four-day trial, he endeavored to comply with those rulings . The errors Stewart identifies were isolated comments during closing arguments. They did not “so infect” Stewar t’s entire trial. Darden , 477 U.S. at 181. In fact, the prosecutor’s conduct in Darden was far “more inflammatory” than the prosecutor’s conduct in this case. Parker , 567 U.S. at 47–48. The district court’s reasoning doe s not alter this conclusion. It relied heavily on circuit precedent in granting relief and mentioned Darden just once. The Supreme Court has reminded us countless times that “circuit precedent does not constitute ‘cl early established Federal law’” and “therefore cannot form the basi s for habeas reli ef under AEDPA.” Parker , 567 U.S. at 48– 49. The district court also relied on a Sixth Circuit case ( Boyle v. Million , 201 F.3d 711 (6th Cir.No. 16-2149 Stewart v. Trierweiler Page 11

2000)) that applied a test that the Supreme Court has disowned. As Parker explained, Darden ’s “highly generalized standard” “bears scant resemblance to the elaborate, multistep test employed by the Sixth Circuit.” 567 U.S. at 49.

Additional Claims. Stewart adds that the prosecu tor improperly referenced his postMiranda silence in violation of Doyle v. Ohio , 426 U.S. 610 (1976), and asks us to affirm on this alternative ground. Because the district court declin ed to review this cla im, as well as Stewart’s other claims, “we think it the wise r course to refrain from cons idering those arguments for the first time on appeal.” Pouncy v. Palmer , 846 F.3d 144, 163 (6th Cir. 2017). For these reasons, we reverse the distri ct court’s judgment and remand the case for further proceedings.