1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0248P (6th Cir.)

File Name: 04a0248p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MICHAEL HICKS,

Petitioner-Appellee,

v.

DENNIS M. STRAUB, Warden,

Respondent-Appellant.

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No. 03-1124

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-70951—Arthur J. Tarnow, District Judge.

Argued: March 18, 2004

Decided and Filed: July 29, 2004 

Before: KENNEDY, ROGERS, and COOK, Circuit

Judges.

_________________

COUNSEL

ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY

GENERAL, Lansing, Michigan, for Appellant. Carole M.

Stanyar, Detroit, Michigan, for Appellee. ON BRIEF: Brad

H. Beaver, OFFICE OF THE ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Carole M. Stanyar,

Detroit, Michigan, for Appellee.

2 Hicks v. Straub No. 03-1124

1

The court granted the petition unless the State of Michigan

scheduled a new trial for petitioner within ninety days.

KENNEDY, J., delivered the opinion of the court, in which

COOK, J., joined. ROGERS, J. (p. 35), delivered a separate

concurring opinion.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. The district court conditionally

granted the petition for a writ of habeas corpus under 28

U.S.C. § 2254 of Petitioner Michael Hicks, a Michigan

prisoner, on his claim that his Sixth Amendment right to

confrontation was violated at his first-degree murder trial

when the prosecutor, during his opening statement, advised

the jury that petitioner had confessed to the murder to a fellow

jail inmate and, yet, subsequently failed, despite a good faith

effort, to produce that inmate as a witness.

1

 The district court

found that the procedural default doctrine did not bar the

review of petitioner’s Confrontation Clause claim.

Specifically, the court held that (1) petitioner had “fairly

presented” his Confrontation Clause claim to the state courts

on direct review; (2) to the extent that the state courts on

direct review would have found that petitioner procedurally

defaulted his Confrontation Clause claim as a result of trial

counsel’s failure to object to the underlying violation at trial,

the ineffective assistance of trial counsel would have excused

any such default; and, (3) petitioner had not procedurally

defaulted his Confrontation Clause claim before the state

courts on collateral review because the state procedural

ground upon which the state courts denied petitioner leave to

appeal was inadequate to bar federal habeas review.

In reaching the merits of petitioner’s Confrontation Clause

Claim, the district court found that the prosecutor’s opening
No. 03-1124 Hicks v. Straub 3

statement comment concerningpetitioner’s allegedconfession

violated petitioner’s right to confrontation, and that this

violation was not harmless error. The district court further

found, pursuant to § 2254(d), that the prior state-court denial

of petitioner’s Confrontation Clause claim on the merits was

an unreasonable application of the pertinent, clearlyestablished Supreme Court precedent. 

Respondent Dennis Straub appeals this grant of the writ of

habeas corpus on the following grounds: (1) the district court

erred in reaching the merits of petitioner’s claim because

petitioner procedurally defaulted his claim by failing to raise

it on direct review and because trial counsel’s failure to object

did not constitute ineffective assistance of counsel that would

excuse this default; (2) the district court violated 28 U.S.C.

§ 2254(e)(2) when it held an evidentiary hearing on

petitioner’s claim of ineffective assistance of trial counsel

because petitioner had failed to develop the factual basis

underlying that claim in the state courts; and (3) assuming

that the district court had the authority to reach the merits of

petitioner’s Confrontation Clause claim, it erred in granting

relief because the prosecutor’s remark did not violate

petitioner’s right to confrontation under the relevant, clearlyestablished Supreme Court precedent.

For the reasons explained below, we REVERSE the district

court’s grant of a writ of habeas corpus to petitioner under 28

U.S.C. § 2254. 

I. Procedural History

Adjudication of respondent’s present appeal requires an

understanding of the complex procedural history that bears

upon that appeal in the state courts.

4 Hicks v. Straub No. 03-1124

A. Pre-Trial and Trial

On July 25, 1993, petitioner was arrested and charged with

the first-degree murder of Shawn Stalworth, who had been

shot to death earlier that day as he was leaving his house in

Battle Creek, Michigan. Following his arrest, petitioner was

confined in a local jail, where he allegedly confessed to

another inmate, Lorenzo Brand (“Brand”), that he had

committed the murder. Brand testified to this confession at

petitioner’s preliminary hearing. At petitioner’s jury trial, the

prosecutor, during his opening statement, stated, in pertinent

part:

Defendant was arrested. He was charged. He was

arraigned. He was taken to the City of Battle Creek

lockup, not the county jail, but the lockup pending

transfer, moving him over here. While he was there[,]

there was another person in the lockup. He goes, hey,

my mom just saw you on a videotape . . . . He said my

mom told me she just saw a person and they accused him

of homicide. You kill that man? What did he say? Yep,

yep.

At the close of the state’s case, the prosecutor informed the

court that the state would not call Brand as a witness because

it had been unable to locate him. The prosecutor admitted

that he did not believe that the state’s efforts to locate Brand

met with the due diligence required under Michigan case law

for the admission of preliminary examination testimony. The

trial court agreed and declined to admit the testimony.

Despite the prosecutor’s failure to produce Brand, defense

counsel neither objected to nor requested a mistrial based

upon the prosecutor’s opening statement relaying that

confession. Further, defense counsel never mentioned the

prosecutor’s statement regarding petitioner’s alleged

confession in his opening statement, which he had reserved

until the close of the prosecution’s case. Neither defense

counsel nor the prosecutor mentioned the alleged confession

in closing arguments. 
No. 03-1124 Hicks v. Straub 5

2

The only plausible way for the jury to make the necessary

connection would have been to compare the list of witnesses mentioned

during the voir dire with the actual witnesses called. Whether the jury

made that connection is unknown.

The trial court gave the jury the customary instruction that

“[t]he lawyers’ statements and arguments are not evidence,”

and further instructed: 

Lorenzo Brand is a missing witness whose appearance

was the responsibility of the [p]rosecution. You may

infer that the witness’ testimony would have not been

favorable to the [p]rosecution’s case. 

However, because the prosecutor’s opening statement never

named the jail inmate to whom petitioner allegedly confessed,

and because no mention was ever made before the jury that

Brand was that inmate, the jury had no knowledge with which

to tie the trial court’s “Brand” instruction to the prosecutor’s

opening statement regarding the alleged confession.2

Moreover, immediately afterthis instruction, the district court

gave an instruction as to when the jury could properly

consider an unrelated out-of-court statement made by

petitioner that had been admitted into evidence.

The jury convicted petitioner of first-degree murder and

possession of a firearm during the commission of a felony.

The trial court sentenced petitioner to life imprisonment

without parole on the murder conviction and to two years’

imprisonment on the felony-firearm conviction. 

B. Direct Review

Petitioner filed an appeal as of right in the Michigan Court

of Appeals. Petitioner presented, among others, the following

two claims: 

I. Defendant . . . was denied a fair trial by the

prosecutor’s numerous instances of misconduct,

6 Hicks v. Straub No. 03-1124

3

Petitioner also argued that trial counsel rendered ineffective

assistance when he failed to impeach a witness with testimony from his

preliminary examination; to make appropriate motions, both before and

during trial; to cross-examine a witness concerning her in-court

identification of defendant with her prior statement that she could not

identify the perpetrator; and to prepare petitioner’s alibi defense

adequately. 

including arguing matters not in evidence, such as

defendant’s supposed admission to committing the

murder, and by repetitively cross-examining

defendant on the irrelevant matter of his being a

marijuana dealer.

 II. Because of defense counsel’s failures[,] . . .

[defendant] was denied his rights to the effective

assistance of counsel, to present an effective defense,

and to a fair trial.

Petitioner only asserted that these instances of prosecutorial

misconduct violated defendant’s rights to due process and a

fair trial; he never argued that this misconduct also violated

his Sixth Amendment right to confrontation. During his

appeals in the state courts, petitioner argued that no curative

instruction could have remedied the prejudice to defendant.

During the direct appeal, no one mentioned that the curative

instruction that identified Brand was referring to the jail

inmate in the prosecutor’s opening statement to whom

petitioner allegedly confessed. Since trial counsel never

objected to this alleged prosecutorial misconduct, petitioner

argued that this failure to object resulted in the requisite

manifest injustice which rendered any such objection

unnecessary, and, alternatively, that the failure amounted to

an ineffective assistance of counsel. Thus, petitioner’s

independent claim of ineffective assistance of counsel rested,

in part, upon this failure by trial counsel.3 

Petitioner filed a motion to remand the case to the trial

court for an evidentiary hearing on his claim of ineffective
No. 03-1124 Hicks v. Straub 7

assistance of trial counsel. The Michigan Court of Appeals

affirmed petitioner’s conviction and sentence. People v.

Hicks, No. 171833 (Mich. Ct. App. Nov. 8, 1996). As to the

first claim, the court found that trial counsel, by failing to

object to the alleged instances of prosecutorial misconduct at

trial, had failed to preserve this claim for review absent a

miscarriage of justice. Id. Noting that only a miscarriage of

justice would excuse this failure, the court further found that

there was “no manifest injustice in the prosecutor’s comment

during his opening statement that defendant allegedly

confessed to the crime to a fellow inmate, even though the

prosecution later failed to produce that witness.” Id. The

court reasoned that the trial judge’s instruction to the jury that

it “could assume that the witness the prosecution was unable

to produce would have testified unfavorably to the

prosecution, and that . . . [it was] not to consider defendant’s

alleged out-of-court admission as evidence of his guilt”

remedied any potential prejudice that may have resulted from

this comment. 

After noting that the defendant failed to properly preserve

the issue, the court of appeals nonetheless decided to address

the merits of his ineffective assistance of trial counsel claim,

and found that he “failed to overcome the presumption that he

was afforded effective assistance of counsel.” Id.

Specifically, the court held that “in each instance, the action

[that] defendant suggests that counsel should have taken[]

would have either been futile, or a matter of strategy that th[e]

[c]ourt is unwilling to second-guess on appeal.” The

Michigan Court of Appeals denied petitioner’s motion to

remand on the ground that petitioner “failed to identify an

issue sought to be reviewed on appeal and demonstrate by

affidavit or an offer of proof regarding the facts to be

established at a hearing,” as M.C.R. 7.211(c)(1)(a)(ii)

requires. People v. Hicks, No. 171833 (Mich. Ct. App. Dec.

6, 1995).

Petitioner then filed a delayed application for leave to

appeal to the Michigan Supreme Court, presenting the same

8 Hicks v. Straub No. 03-1124

4

Petitioner had previously filed–on January 26, 1999–a writ of

habeas corpus under 28 U.S.C. § 2254. Conceding that his petition

contained unexhausted claims, petitioner explained that he had filed the

petition to avoid a perceived violation of the applicable statute of

limitations. Petitioner stated that he wanted to pursue state collateral

review so as to exhaust these claims as well as to raise claims based upon

a denial of his right to confrontation and upon a denial of his right to the

effective assistance of counsel. The district court dismissed the petition

without prejudice on September 29, 1999, pursuant to the parties’

stipulation that 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations

would be tolled during the pendency of state collateral review, and that

any re-filed § 2254 petition would not constitute a “successive

petition” under 28 U.S.C. § 2244(b)(2). Hicks v. Straub, No. 99-

70299 (E.D. Mich. September 29, 1999).

claims that he had presented to the Michigan Court of

Appeals. Petitioner also filed a motion to remand the case to

the trial court for an evidentiary hearing on his ineffectiveassistance-of-trial-counsel claim. On November 7, 1997, the

Michigan Supreme Court denied petitioner leave to appeal

and denied the motion for remand on the ground that it was

“not persuaded that [it should review] the questions

presented.” People v. Hicks, 456 Mich. 884 (Mich. 1997).

C. State Collateral Review

On January 29, 1999, petitioner filed a motion for relief

from judgment in the trial court, pursuant to M.C.R. 6.500.4

The record indicates that petitioner made the following two

claims, among others, in that motion: 

I. [Petitioner was] denied his constitutional right to

confront witnesses against him when the prosecutor

advised the jury during opening statement that

defendant had confessed to the murder, where the

prosecutor without even the pretense of due

diligence failed thereafter to produce the witness to

the alleged confession, where defense counsel never

responded to the issue of the “confession” in any

way, and where the trial court’s instructions failed
No. 03-1124 Hicks v. Straub 9

5

During an earlier hearing, at which only the prosecutor appeared, the

prosecutor argued that the Michigan Court of Appeals had decided all of

the claims in petitioner’s motion for relief from judgment. The trial judge

then stated:

 

That’s what I thought. I read the Court of Appeals opinion

again, the ineffective assistance, the alleged prosecutorial

misconduct, the comments made in the opening statement that

were never followed up about the jail compatriot claiming the

[d]efendant made statements. In any event all of these have been

utterly to remedy the enormous prejudice to the

defendant.

II. [Petitioner was] deprived of the effective assistance

of counsel when trial counsel failed to object or

move for mistrial based upon an obvious deprivation

of the right to confront witnesses following the

prosecutor’s unsupported statement to the jury that

the defendant had confessed, and where appellate

counsel failed to frame the issue properly as the

deprivation of the right to confront witnesses in

violation of the Sixth Amendment. 

In support of his claims, petitioner argued, for the first time,

that the trial court’s jury instruction on Brand was incapable

of curing the prosecutor’s statement to the jury that petitioner

had confessed to a jail inmate because that statement never

disclosed the name of that jail inmate while the court’s

instruction only referenced Brand by name, not by his role as

the jail inmate to whom petitioner allegedly confessed.

Petitioner further argued that, had Brand testified, defense

counsel would have had substantial evidence with which to

impeach his testimony.

In an order dated March 16, 2000, the state trial court

denied petitioner’s motion for relief from judgment. People

v. Hicks, No. 93-2188FC (Calhoun County Circuit Court

March 16, 2000). The court outlined its reasons for that

denial at a hearing on March 6, 2000.5 During that hearing,

10 Hicks v. Straub No. 03-1124

addressed, so that motion is denied. 

Petitioner’s counsel failed to attend this hearing due to a scheduling error.

 The state court re-scheduled the hearing on petitioner’s motion for

March 6, 2000, at which hearing both counsel were present.

6

Presumably in response to this contention, the prosecutor argued

that petitioner should not be permitted to present an argument that is

simply worded differently.

petitioner argued that, although his Confrontation Clause and

Due Process Clause claims are grounded on the same factual

predicate, they are legally distinct. Therefore, he argued the

Michigan Court of Appeals decided only the latter, but not the

former claim.6 Petitioner further argued that the ineffective

assistance of appellate counsel had prevented him from

presenting his Confrontation Clause claim to the court of

appeals. He asserted that both trial counsel and appellate

counsel were ineffective for failing to identify and to raise the

Confrontation Clause claim at trial and on direct review,

respectively. 

The trial court noted that the Michigan Court of Appeals

had held that trial counsel was not ineffective. Nevertheless,

it stated that, “[b]ecause this is a first degree murder

conviction and a felony firearm conviction, . . . [it was]

willing to address the underlying substance of the motion.”

The court stated that, because defendant testified that he had

an alibi defense and completely denied having anything to do

with the murder, the defense “clearly contradicted the

[p]rosecutor’s opening statement [that defendant had

confessed].” The trial court then noted that it had instructed

the jury that the lawyers’ arguments and statements are not

evidence and that the jury’s decision must be based upon only

evidence. The court concluded that, “technically,” there is no

“confrontation issue” because, absent the prosecutor’s

statement, “there was no evidence brought into play against

the defendant.” While reading onto the record the Michigan

Court of Appeals’ opinion denying petitioner’s ineffective-
No. 03-1124 Hicks v. Straub 11

7We note that the Michigan Court of Appeals’ decision, on direct

review, necessarily addressed only petitioner’s claim of ineffective

assistance of trial counsel. We further note that, while the trial court, in

denying petitioner’s post-conviction motion, did not expressly articulate

its reasoning for the denial of petitioner’s claim that appellate counsel was

ineffective for failing to raise a Confrontation Clause challenge on direct

review, such a holding implicitly follows from its express finding that trial

counsel was not ineffective for failing to raise such a challenge at trial. 

assistance-of-counsel claim, the trial court underscored the

following excerpt as the most important in its view: 

[T]he record provides no support for [d]efense’s

proposition that counsel’s failure to object to the

admission of evidence, his failure to request a pretrial

lineup, his failure to extensively cross-examine an

eyewitness, or his presentation of the [d]efendant’s

defense fell below the objective standard of

reasonableness. We find that defendant has failed to

overcome the presumption that he was afforded effective

assistance of counsel.

Based upon this excerpt, the trial court concluded that

petitioner had not presented a “specific discrete allegation of

ineffective assistance.” Rather, according to the trial court,

petitioner’s allegation “was wide-ranging” and involved a

“number of different areas . . . to demonstrate ineffective

assistance.” As a result, the trial court also agreed with the

court of appeals that trial counsel’s assistance was not

ineffective, reasoning that defendant had posited an alibi

defense before the jury, and that the court had instructed the

jury that lawyers’ statements are not evidence. The court then

denied petitioner’s motion.7 

Petitioner filed a delayed application for leave to appeal the

trial court’s denial of his motion for relief from judgment in

the Michigan Court of Appeals, presenting these claims:

12 Hicks v. Straub No. 03-1124

I. The trial court was clearly erroneous in rejecting

defendant[]’s claim that he was denied his

constitutionalrightto confront witnesses against him

when the prosecutor advised the jury during opening

statement that defendant had confessed to the

murder, where the prosecutor without even the

pretense of due diligence failed thereafter to produce

the witness to the alleged confession, where defense

counsel never responded to the issue of the

“confession” in any way, and where the trial court’s

instructions failed utterly to remedy the enormous

prejudice to the defendant. 

II. The trial court was clearly erroneous in rejecting

defendant[]’s claim that he was deprived of the

effective assistance of counsel when trial counsel

failed to object or move for mistrial based upon an

obvious deprivation of the right to confront

witnesses following the prosecutor’s unsupported

statement to the jury that the defendant had

confessed, and where appellate counsel failed to

frame the issue properly as the deprivation of the

right to confront witnesses in violation of the Sixth

Amendment.

The Michigan Court of Appeals denied petitioner leave to

appeal on the ground that petitioner had failed “to meet the

burden of establishing entitlement to relief under M.C.R.

6.508.” People v. Hicks, No. 226074 (Mich. Ct. App.

Aug. 11, 2000). 

Petitioner then filed a delayed application for leave to

appeal in the Michigan Supreme Court, presenting the same

claims that he had presented to the Michigan Court of

Appeals. The Michigan Supreme Court denied petitioner

leave to appeal, ruling that petitioner had failed “to meet the

burden of establishing entitlement to relief under M.C.R.

6.508(D).” People v. Hicks, 463 Mich. 978 (Mich. Feb. 26,

2001). 
No. 03-1124 Hicks v. Straub 13

8

The district court determined that habeas corpus relief was not

warranted for his claims based on a witness’ in-court identification of

him.

D. Federal Collateral Review Before the District Court

On March 9, 2001, petitioner filed a petition for a writ of

habeas corpus under 28 U.S.C. § 2254. Petitioner presented

the following claims as grounds for relief:

I. Petitioner was denied his constitutional right to

confront witnesses against him when the prosecutor

advised the jury during opening statement that

petitioner had confessed to the murder, where the

prosecutor without even the pretense of due

diligence failed thereafter to produce the witness to

the alleged confession, where defense counsel never

responded to the issue of the ‘confession’ in any

way, and where the court’s instruction failed utterly

to remedy the enormous prejudice to the petitioner.

II. Petitioner was deprived of the effective assistance of

counsel when trial counsel failed to object or move

for mistrial based upon an obvious deprivation of the

right to confront witnesses following the

prosecutor’s unsupported statement to the jury that

the petitioner had confessed, and where appellate

counsel failed to frame this issue properly as the

deprivation of the right to confront witnesses in

violation of the Sixth Amendment. 

On October 15, 2002, the district court conducted an

evidentiary hearing in which it found trial counsel was

ineffective, and conditionally granted petitioner a writ of

habeas corpus on petitioner’s Confrontation Clause claim.

8

14 Hicks v. Straub No. 03-1124

1. Procedural Default Consideration on State

Collateral Review

On state collateral review, the Michigan Supreme Court

denied petitioner leave to appeal the trial court’s denial of his

motion for relief from judgment on the ground that petitioner

failed “to meet the burden of establishing entitlement to relief

under M.C.R. 6.508(D).” People v. Hicks, 463 Mich. 978

(Mich. Feb. 26, 2001). In so holding, the state court did not

specify whether it was relying upon a particular subsection of

M.C.R. 6.508(D). Before the district court, petitioner and

respondent argued about whether the Michigan Supreme

Court’s denial rested upon an adequate and independent state

procedural law and, in particular, about whether it relied upon

subsection (3) of M.C.R. 6.508(D). M.C.R. 6.508(D)(3)

provides: 

The court may not grant relief to the defendant if the

motion . . . alleges grounds for relief, other than

jurisdictional defects, which could have been raised on

appeal from the conviction and sentence or in a prior

motion under this subchapter [of post-appeal relief],

unless the defendant demonstrates (a) good cause for

failure to raise such grounds on appeal or in the prior

[post-appeal] motion, and (b) actual prejudice from the

alleged irregularities that support the claim for relief.

Respondent argued that, in denying petitioner relief under

M.C.R. § 6.508(D), the Michigan Supreme Court implicitly

relied upon subsection (3). Respondent argued that

subsection (3) applied because, although petitioner had

presented the factual predicate for his Confrontation Clause

claim to the Michigan courts on direct review by virtue of his

prosecutorialmisconduct claim, he had not presented the legal

argument for that claim until state collateral review.

Petitioner concedes that he did not expressly present his

Confrontation Clause claim on direct review. However,

petitioner does argue that he “fairly presented” his

Confrontation Clause claim to the Michigan Court of Appeals
No. 03-1124 Hicks v. Straub 15

9

Petitioner asserted that because the Michigan courts had not decided

his Confrontation Clause claim on direct review, the Michigan Supreme

Court, on collateral review, could not have relied upon M.C.R.

6.508(D)(2) in denying petitioner leave to appeal his motion for relief

from judgment. Thus, petitioner conceded – albeit implicitly – that the

Michigan Supreme Court denied him such leave pursuant to M.C.R.

6.508(D)(3).

on direct review based solely on his presentation of the

factual predicate. Accordingly, petitioner argues that there

was no basis for procedural default under M.C.R.

6.508(D)(3). Alternatively, petitioner argued that appellate

counsel’s failure to raise the Confrontation Clause claim on

direct review constituted ineffective assistance so as to excuse

such default. In support, petitioner claimed that appellate

counsel buried the Confrontation Clause issue, the “most

significant constitutional deprivation in th[e] case,” in a

“garden-variety prosecutorial misconduct claim,” and that, to

the extent that his Confrontation Clause claim is meritorious,

such ineffective assistance sufficiently prejudiced him.

Respondent countered that petitioner’s appellate counsel did

not render ineffective assistance by framing the underlying

factual predicate as a prosecutorial misconduct claim – the

“normal” and “accepted” legal theory – rather than as a

Confrontation Clause claim – an “unusual” and “creative”

legal theory. Petitioner also asserted that the Michigan

Supreme Court’s “arbitrary and ambiguous” form order

denying him leave to appeal his post-conviction motion for

relief from judgment did not constitute an adequate state

procedural ground.

The district court held that the Michigan Supreme Court, in

denying petitioner leave to appeal his motion for relief from

judgment under M.C.R. 6.508(D), relied upon subsection (2),

not (3).9 Hicks v. Straub, 239 F. Supp. 2d 697, 706-07 (E.D.

Mich. 2003). M.C.R. 6.508(D)(2) provides: 

The court may not grant relief to the defendant if the

motion . . . alleges grounds for relief which were decided

16 Hicks v. Straub No. 03-1124

10Respondent’s brief states that “[t]he trial court, perceiving no

difference in the claim from what had been presented during [p]etitioner’s

appeal of right, denied the motion on the ground that [p]etitioner could

not collaterally attack his conviction on grounds already presented in a

prior appeal.” Thus, both the district court and respondent seem to

contend that the trial court’s denial of petitioner’s motion for relief from

judgment rested on this ground. While the prosecutor made this argument

before the trial court in the initial ex parte hearing, and while portions of

the subsequent hearing, on March 6, 2000, reveal that the trial court

against the defendant in a prior appeal or proceeding

under this subchapter [of post-appeal relief], unless the

defendant establishes that a retroactive change in the law

has undermined the prior decision; 

In so holding, the district court reasoned that, although

“[p]etitioner could have presented his Confrontation Clause

claim in a clearer manner,” he “fairly presented [it] to the

Michigan state courts on direct review.” Id. at 706. The

district court underscored that petitioner, in his brief to the

Michigan Court of Appeals, argued that the prosecutor

engaged in misconduct by relaying in his opening statement

petitioner’s alleged confession to the murder and then

subsequently failing, because of a lack of due diligence, to

produce that inmate as a witness at trial. Id. Relying upon

McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), the

district court concluded that the facts underlying the

“prosecutorial misconduct claim . . . [that petitioner

presented] in his state court briefs were ‘well within the

mainstream of constitutional law’ [on the Confrontation

Clause] such that the Michigan state courts should have

recognized and addressed the Confrontation Clause issue.”

Id. In further support, the district court posited that petitioner

had expressly presented his Confrontation Clause claim, as

such, on state collateral review, and that the Michigan trial

court, on such review, had agreed with the prosecutor that

petitioner’s motion for relief from judgment only presented

claims that he had previously presented to the state courts on

direct review.10 Id. According to the district court, because
No. 03-1124 Hicks v. Straub 17

examined the Michigan Court of Appeals’ decision, the trial court,

at that subsequent hearing, expressly considered the merits of

petitioner’s claims. In its order denying petitioner’s motion for

relief from judgment, the trial court adopted its reasoning at the

subsequent hearing as the basis for that denial.

11In so holding, the district court relied upon Ceja v. Stewart, 97 F.3d

1246, 1253 (9th Cir. 1996), which held that a state court’s application of

the rule of res judiciata is not an adequate procedural bar to foreclose

federal habeas relief. 

petitioner fairly presented his Confrontation Clause claim to

the Michigan courts on direct review, the courts, not

petitioner, bear the blame for their failure to recognize and to

rule upon that claim. Id. The district court found that the

state courts’ failure to recognize and to address petitioner’s

fairly-presented Confrontation Clause claim in denying

petitioner relief on direct review constituted a constructive

denial of that claim for purposes of M.C.R. 6.508(D)(2). Id.

at 707. After finding that the Michigan Supreme Court

denied petitioner leave to appeal under M.C.R. 6.508(D)(2),

the court held that this state procedural law is inadequate to

bar federal habeas review because it is “simply a rule of res

judicata barring a defendant from re[-]litigating claims in a

motion for relief from judgment which were decided

adversely to him in a prior state court decision.”11 Id. Thus,

the district court found that petitioner had not procedurally

defaulted his Confrontation Clause claim on state collateral

review. Id.

2. Procedural Default Consideration on Direct Review

Before the district court, respondent argued that, to the

extent petitioner fairly presented his Confrontation Clause

claim to the state courts on direct review by virtue of

presenting the factual basis underlying his prosecutorial

misconduct claim, petitioner, nevertheless, procedurally

defaulted that claim. As respondent pointed out, the

Michigan Court of Appeals, on direct review, found that

18 Hicks v. Straub No. 03-1124

12On direct review, the Michigan Court of Appeals held that

petitioner had failed to preserve his prosecutorial misconduct claim based

upon the prosecutor’s opening statement on the ground that petitioner had

failed to object to this statement at trial, and that, because the jury

instructions remedied any prejudice resulting from this statement, no

manifest injustice existed to excuse this failure. Thus, as respondent aptly

argued, to the extent that petitioner had raised his Confrontation Clause

claim on direct review by virtue of presenting the same facts underlying

his prosecutorial misconduct claim, the Michigan Court of Appeals’

procedural-default ruling would apply with equal force to that claim as

well.

petitioner had procedurally defaulted his prosecutorial

misconduct claim by failing to object at trial to its underlying

factual predicate – the prosecutor’s opening statement

relaying petitioner’s purported confession. Respondent

further argued that trial counsel’s failure to object to this

alleged Confrontation Clause violation did not constitute

ineffective assistance of counsel so as to excuse any such

default. Respondent asserted that petitioner’s trial counsel

chose not to object or move for a mistrial when the state

failed to produce Brand as a matter of trial strategy.

Specifically, respondent maintained that the failure of Brand

to appear was a fortunate turn of events because Brand’s

testimony would only have strengthened the prosecution’s

case. Moreover, according to respondent, had trial counsel

objected and received a mistrial, there would have been the

risk that the government, at the re-trial, would have been able

to produce Brand as a witness. 

The district court held that, in case the Michigan Court of

Appeals, on direct review, found petitioner’s Confrontation

Clause claim procedurally defaulted due to his trial counsel’s

failure to object to that underlying violation at trial,12 that

failure constituted ineffective assistance and, thus, excused

any such procedural default. After conducting an evidentiary

hearing on the matter, the district court agreed with petitioner

that trial counsel’s assistance was objectively unreasonable

for the following reasons: 1) it should have been obvious to
No. 03-1124 Hicks v. Straub 19

13According to petitioner, such impeachment evidence includes

Brand’s admissions that he anticipated that the prosecutor “might” help

him out with charges that he was facing at the time, that the alleged

confession occurred within feet of a large sign warning that everything

was being recorded, and the implausible nature of petitioner having

confessed to a complete stranger at the very beginning of their

conversation.

him that the prosecutor’s failure to produce Brand at trial

violated petitioner’s right to confrontation; 2) he had no

strategic reason not to object to this Confrontation Clause

violation; 3) his purported reason for failing to object–that he

did not want the prosecution to produce Brand as a witness at

any re-trial–was “unreasonable” and “wholly unsupported by

the record” due to the availability of substantial impeachment

material against Brand;13 and 4) he did not even obtain an

adequate curative instruction because the instruction that the

trial court gave did not reference Brand as the jail inmate to

whom petitioner allegedly confessed. Id. at 712-13. The

district courtfound that, because the prosecutor’s unsupported

opening statement violated petitioner’s right to confront the

witnesses against him, trial counsel’s deficient representation

sufficiently prejudiced petitioner. Id. Pursuant to 28 U.S.C.

§ 2254(d), the district court further found that the prior-state

court adjudication denying petitioner’s ineffective-assistanceof-trial-counsel claim on the merits constituted an

unreasonable application of Strickland v. Washington, 466

U.S. 668 (1984), the pertinent, clearly-established Supreme

Court precedent. Id. Thus, the district court found the

procedural default doctrine did not bar its review of

petitioner’s Confrontation Clause claim on the merits. Id.

3. Adjudication on the Merits

Relying upon Harris v. Stoval, 212 F.3d 940 (6th Cir.

2000), the district court held that, where, as here, the

petitioner fairly presented his federal constitutional claim of

a violation of the confrontation clause to the state courts on

direct review, and those courts, in denying that claim, failed

20 Hicks v. Straub No. 03-1124

to address it, a federal court must conduct an independent

review of that state court’s decision under 28 U.S.C.

§ 2254(d). Id. at 707. The court reasoned that such a denial

constituted an adjudication on the merits – albeit without any

reasoning – for purposes of triggering § 2254(d). Id.

In reviewing petitioner’s Confrontation Clause Claim, the

district court found that the prosecutor’s opening statement

relaying petitioner’s purported confession violated

petitioner’s right to confrontation, and that this violation was

not harmless error. Id. at 711. The district court further

found, pursuant to § 2254(d), that the prior state-court denial

of petitioner’s Confrontation Clause claim on the merits was

an unreasonable application of the pertinent, clearlyestablished Supreme Court precedent. Id. at 712; see

generally Pointer v. Texas, 380 U.S. 400, 403 (1965), Bruton

v. United States, 391 U.S. 123 (1968), and Frazier v. Cupp,

394 U.S. 731 (1969). Consequently, the district court

conditionally granted petitioner’s application for a writ of

habeas corpus under 28 U.S.C. § 2254 on his Confrontation

Clause claim. Id. at 714.

II. Analysis

The provisions of the Antiterrorism and Effective Death

Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214

(“ADEPA”), apply to petitioner’s habeas petition, which

petitioner filed after the effective date of the act. “In a habeas

corpus proceeding, we review de novo a district court’s legal

conclusions and its factual findings for clear error.” Lott v.

Coyle, 261 F.3d 594, 606 (6th Cir. 2001). We review de novo

a district court’s determinations regarding a habeas

petitioner’s procedural default of any of his claims. Id. We

review de novo a district court’s determinations concerning a

habeas petitioner’s ineffective-assistance-of-counsel claim, a

mixed question of law and fact. Id.
No. 03-1124 Hicks v. Straub 21

A. Procedural Default

Subject to two exceptions, 28 U.S.C. § 2254(b)(1)(A)

prohibits a federal court from granting “[a]n application for a

writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a [s]tate court ... unless . . . the

applicant has exhausted the remedies available in the courts

of the [s]tate.” 28 U.S.C. § 2254(c) provides that an applicant

has exhausted the remedies available in state courts only if he

no longer has the right to raise the question presented by any

available procedure under state law. The procedural default

doctrine applies to bar a federal court’s review of a state

prisoner’s federal claim where that prisoner failed to give the

state courts a “full and fair” opportunity to resolve that

claim–as the exhaustion doctrine requires–and the prisoner

cannot cure that failure because state-court remedies are no

longer available. See O’Sullivan v. Boerckel, 526 U.S. 838,

848 (1999) (holding that the procedural default doctrine

preserves the integrity of the exhaustion doctrine, which “a

prisoner could evade . . . by ‘letting the time run’ on state

remedies”);Coleman v. Thompson, 501 U.S. 722, 732 (1991)

(holding that a “habeas petitioner who has defaulted his

federal claims in state court meets the technical requirements

for exhaustion . . . [because] there are no state remedies any

longer ‘available’ to him,” and, thus, that the procedural

default doctrine prevents a habeas petitioner from

circumventing the policy underlying the exhaustion doctrine).

In deciding whether a petitioner procedurally defaulted a

federal claim in state court, we must determine whether:

1) the petitioner failed to comply with an applicable state

procedural rule; 2) the last state court rendering judgment on

the claim at issue, in fact, enforced the applicable state

procedural rule so as to bar that claim; and 3) the state

procedural default is an adequate and independent state

ground properly foreclosing federal habeas review of the

petitioner’s federal claim at issue. Seymour v. Walker, 224

F.3d 542, 554-55 (citing Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986)); Simpson v. Jones, 238 F.3d 399, 406 (6th

22 Hicks v. Straub No. 03-1124

14The district court and petitioner make much of the fact that

respondent, in an ex parte hearing before the Michigan trial court on

petitioner’s motion for relief from judgment, argued that petitioner had

presented his Confrontation Clause claim to the state courts on direct

review, and that the state courts had decided that issue. In his brief here,

petitioner contends that the doctrine of judicial estoppel should operate to

bar respondent from now asserting that petitioner had not fairly presented

his Confrontation Clause claim to the state courts on direct review. 

However, as discussed below, the supreme court denied petitioner

leave to appeal under M.C.R. 6.508(D)(3) on the ground that petitioner

had improperly failed to raise his Confrontation Clause claim on direct

review. Alternatively, to the extent that petitioner suggests that

respondent’s prior inconsistent position was “successful” because the state

trial court had relied upon it in denying petitioner’s motion, the actual

order denying that motion does not support such a claim. Attached to that

order is not the transcript from the ex parte hearing, but the transcript

from the subsequent hearing, in which the trial court expressly stated that

it would address the claim’s merits. Moreover, petitioner’s brief concedes

that the trial court did not find a procedural default, but rather addressed

the merits of his Confrontation Clause claim.

In any event, we note that, in his habeas petition–and on state

Cir. 2000). If, pursuant to these standards, a petitioner

procedurally defaulted his federal claim in state court, the

petitioner must demonstrate either: 1) cause for his failure to

comply with the state procedural rule and actual prejudice

flowing from the violation of federal law alleged in his claim,

or 2) that a lack of federal habeas review of the claim’s merits

“will result in a fundamental miscarriage of justice.”

Coleman, 501 U.S. at 750; see Murray v. Carrier, 477 U.S.

478, 496 (1986) (specifying that a ‘fundamental miscarriage

of justice’ will result “where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent”).

1. Direct Review

We find that, contrary to the district court’s conclusion,

petitioner procedurally defaulted his Confrontation Clause

claim by failing to fairly present it to the Michigan courts on

direct review.14 A petitioner must fairly present to the state
No. 03-1124 Hicks v. Straub 23

collateral review–petitioner conceded that he had not raised his

Confrontation Clause claim on direct review–that it was “distinct from the

general prosecutorial misconduct claim that” petitioner brought on direct

review. In fact, petitioner made this contention so as to persuade the trial

court that the state courts had not previously decided this claim and to

prompt the trial court to address its merits. Moreover, petitioner also

conceded to the district court, regarding his prior § 2254 petition, that the

Confrontation Clause claim that it presented had not been exhausted on

direct review. Indeed, this representation prompted the parties to enter

into a stipulation to dismiss that petition so that petitioner could exhaust

that claim. Thus, petitioner’s contention that the equities compel us to

apply the doctrine of judicial estoppel against respondent is not welltaken. 

courts either the substance of or the substantial equivalent of

the federal claim that he is presenting to a federal habeas

court. A petitioner fairly presents a federal habeas claim to

the state courts only if he “asserted both the factual and legal

basis for his claim.” McMeans, 228 F.3d at 681. See also

Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971) (holding

that petitioner’s challenge to the legality of the indictment

was neither the “substantial equivalent” of nor entailed the

same “ultimate question for disposition” as his equal

protection claim even though it relied upon the same factual

basis, and, thus, that the state courts had no sua sponte duty

to consider whether that factual basis resulted in a equal

protection violation). As this Court has previously explained,

the exhaustion doctrine requires the petitioner to present “the

same claim under the same theory” to the state courts before

raising it on federal habeas review. Pillette v. Foltz, 824 F.2d

494, 497 (6th Cir. 1987). In determining whether a petitioner

“fairly presented” a federal constitutional claim to the state

courts, we consider whether: 1) the petitioner phrased the

federal claim in terms of the pertinent constitutional law or in

terms sufficiently particular to allege a denial of the specific

constitutional right in question; 2) the petitioner relied upon

federal cases employing the constitutional analysis in

question; 3) the petitioner relied upon state cases employing

the federal constitutional analysis in question; or 4) the

petitioner alleged “facts well within the mainstream of [the

24 Hicks v. Straub No. 03-1124

pertinent] constitutional law.” McMeans, 228 F.3d at 681

(holding that “[g]eneral allegations of the denial of rights to

a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims

that specific constitutional rights were violated.”) However,

a petitioner need not cite “book and verse on the federal

constitution.” Picard, 404 U.S. at 278 (quotation marks and

citations omitted).

Because his prosecutorial misconduct and Confrontation

Clause claims rest upon the same factual predicate, petitioner,

by presenting his prosecutorial misconduct claim on direct

review, also presented the factual basis underlying his

Confrontation Clause claim. Thus, the issue is whether

petitioner, on direct review, presented either the substance of

or the substantial equivalent of the legal basis for his

Confrontation Clause claim. We find that he did not. 

Petitioner referenced the underlying factual predicate

neither in terms relating to legal precedent on the

Confrontation Clause nor in terms of a specific violation of

his right to confrontation. See Newton v. Million, 349 F.3d

873, 877 (6th Cir. 2003) (holding that petitioner fairly

presented his federal claim to the state courts where he

phrased his claim in terms of the specific denial of a

constitutional right–his right to due process of law under the

Fifth andFourteenthAmendments–and alleged the underlying

facts upon which that claim was based even though he cited

no cases employing federal constitutional analysis). Notably,

petitioner never mentioned the terms confrontation or crossexamination. Rather, petitioner argued only that the

prosecutor’s opening statement amounted to the “argu[ing]

facts not in evidence,” and that this instance of prosecutorial

misconduct violated his constitutional right to a fair trial.

In addressing the underlying factual foundation in his state

court briefs, petitioner did not rely upon any federal legal

precedent analyzing a claim under the Confrontation Clause,

and only one case upon which he relied discussed the
No. 03-1124 Hicks v. Straub 25

15Petitioner cited People v. Dye, 427 N.W.2d 501 (Mich. 1988), in

arguing that the prosecutor’s “belated attempt to produce . . . Brand was

hardly a sign of good faith” and, thus, that the prosecutor was “unable to

show due diligence in order to use . . . [Brand’s preliminary] examination

testimony.” In Dye, the Michigan Supreme Court addressed the substance

of and purpose behind the Confrontation Clause; the court held, however,

that a “transcript of prior testimony may[,] nevertheless[,] be offered in

evidence upon a showing that the witness is unavailable and that the

testimony bears satisfactory indicia of reliability.” 427 N.W.2d at 504-05

(relying upon M.C.L. § 768.26, which permits the prosecution to use a

prior witness’ testimony from a preliminary examination, a deposition, or

a former trial where the prosecution cannot produce that witness at trial).

As part of his duty to establish the witness’ unavailability, the Michigan

Supreme Court held that the prosecutor, at the defendant’s re-trial, had not

used due diligence in attempting to produce three witnesses who had

testified against the defendant at his first trial and, thus, that transcripts of

those witnesses’ statements in the first trial were inadmissible. Id. at 506-

511. 

Confrontation Clause.15 Petitioner’s single reference to one

case discussing the Confrontation Clause–where that case,

unlike here, involved the admission into evidence of

transcripts of the former witnesses’ incriminating

testimony–is insufficient to fairly present a Confrontation

Clause claim based upon the prosecutor’s opening statement,

which is not evidence. See McMeans, 228 F.3d at 682

(holding that, even though isolated state cases upon which

petitioner relied contained “a few brief references to the

Confrontation Clause,” petitioner had not “fairly presented”

his Confrontation Clause claim to the state courts on direct

review because, during that review process, petitioner focused

entirely on the state’s rape shield law, failed to cite any

federal precedent, and simply argued that the trial judge’s

restriction of his cross-examination denied him a “fair trial”

and “due process”). 

While the district court found that the factual predicate that

petitioner presented on direct review fell “well within the

mainstream of” Confrontation Clause precedent, we disagree.

Frazier v. Cupp, 394 U.S. 731 (1969), best illustrates why we

arrive at this conclusion. In Frazier, the Supreme Court

26 Hicks v. Straub No. 03-1124

considered a habeas petitioner’s claim that the prosecutor’s

conduct violated his right to confrontation. Id. at 734. In that

case, the prosecutor, during his opening statement,

summarized the anticipated testimony of Rawls, a witness

who had pleaded guilty to the same offense for which the

petitioner was being tried. Id. at 733. The summary “took

only a few minutes to recite and was sandwiched between a

summary of [the] petitioner’s own confession and a

description of the circumstantial evidence [that] the [s]tate

would introduce.” Id. Thus, the prosecutor did not

emphasize that summary in any particular way. Id.

Although, “[a]t one point[,] the prosecutor referred to a paper

that he was holding in his hands to refresh his memory about

something Rawls had said, . . . he did not explicitly tell the

jury that this paper was Rawls’ confession, nor did he purport

to read directly from it.” Id. at 734. Yet, the state conceded

that “the jury might fairly have believed that the prosecutor

was referring to Rawls’ statement.” Id. Later, the prosecutor

called Rawls to the stand. Id. However, the trial court soon

dismissed Rawls from the stand after Rawls informed the

court that he would invoke his privilege against selfincrimination as to every question concerning the events at

issue. Id. 

Relying upon Bruton v. United States, 391 U.S. 123 (1968),

and Douglas v. Alabama, 380 U.S. 415 (1965), in which the

Supreme Court found Confrontation Clause violations, the

petitioner in Frazier argued before the Supreme Court that

“this series of events placed the substance of Rawls’

statement before the jury in a way that ‘may well have been

the equivalent in the jury’s mind of testimony,’ and the

statement ‘added substantial, perhaps even critical, weight to

the [g]overnment’s case in a form not subject to crossexamination.’” Id. (internal citations omitted). However, the

Supreme Court distinguished petitioner’s case from Bruton as

follows: “[U]nlike the situation in Bruton, the jury was not

being asked to perform the mental gymnastics of considering

an incriminating statement against only one of two defendants

in a joint trial.” Id. Here, unlike Bruton, but like Frazier, the
No. 03-1124 Hicks v. Straub 27

jury was not required, via the admission into evidence of a codefendant’s confession inculpating petitioner, to consider that

incrimination against only that co-defendant. 

The Frazier Court also distinguished Douglas as follows:

In Douglas, the prosecutor called the defendant’s

coconspirator to the stand and read his alleged confession

to him; the coconspirator was required to assert his

privilege against self-incrimination repeatedly as the

prosecutor asked him to confirm or deny each statement.

The Court found that this procedure placed powerfully

incriminating evidence before the jury in a manner which

effectively denied the right of cross-examination. Here,

Rawls was on the stand for a very short time and only a

paraphrase of the statement was placed before the jury.

This was done not during the trial, while the person

making the statement was on the stand, but in an opening

statement. In addition, the jury was told that the opening

statement should not be considered as evidence.

Certainly the impact of the procedure used here was

much less damaging than was the case in Douglas. 

Id. at 735 (italics added). Here, unlike in both Douglas and

Frazier, the relevant witness, Brand, was not a co-conspirator

who had inculpated petitioner while confessing to the crime.

In addition, unlike in both Douglas and Frazier, the

prosecutor did not call Brand to the stand, and, thus, did not,

by his questions, read either Brand’s entire preliminary

examination testimony nor portions of it into the record.

Clearly then, unlike in Douglas, Brand did not give credence

to those questions by consistently asserting his Fifth

Amendment privilege. 

 The Frazier Court concluded that the limiting instruction

that the jury was not to regard counsels’ statements as

evidence was sufficient to protect the petitioner’s

constitutional rights. Id. 734-36 (noting that, while “[a] more

specific limiting instruction might have been desirable, . . .

28 Hicks v. Straub No. 03-1124

none was requested.”) The Court reasoned that it is not

remarkable “to assume that the jury will ordinarily be able to

limit its consideration to the evidence introduced during

trial.” Id. at 736. The Court also emphasized, however, that,

“[a]t least where the anticipated, and unproduced, evidence is

not touted to the jury as a crucial part of the prosecution’s

case, ‘it is hard . . . to imagine that the . . . minds of the jurors

would be so influenced by such incidental statements during

this long trial that they would not appraise the evidence

objectively and dispassionately.’” Id. (citations omitted).The

court held that nothing that occurred during the prosecution’s

opening statement would warrant relief under the

Confrontation Clause. Id. at 736-37 (also finding that the

prosecutor’s good faith in expecting the witness to testify,

while not controlling as to a deprivation of the petitioner’s

right of confrontation, precludes any finding of prosecutorial

misconduct).

Here, as in Frazier, the prosecutor neither emphasized his

reference to petitioner’s alleged confession in any way nor

“touted” that confession as a crucial part of its case to the

jury. The opening statement’s reference to petitioner’s

purported confession lasted less than a minute. The reference

was “sandwiched” between summaries of the evidence that

the government intended to produce, such as witnesses’

testimony identifying petitioner and showing that he knew the

victim. Moreover, unlike in Frazier, the prosecutor did not

appear to summarize Brand’s preliminary examination

testimony in his statement, but, rather, referred to the

purported confession generally. While the Supreme Court

cautioned in Frazier that “[i]t may be that some remarks

included in an opening or closing statement could be so

prejudicial that a finding of error, or even constitutional error,

would be unavoidable,” id. at 736, a comparison of the facts

in this case to those in Frazier reveal that this is not such a

case. The facts of petitioner’s case here are even less

damaging than those in Frazier where the Supreme Court

found no Confrontation Clause violation. Thus, as Frazier

illustrates, the principle that petitioner claims his factual
No. 03-1124 Hicks v. Straub 29

predicate invokes – “that a jury may not be told of a

defendant’s confession [during the prosecutor’s opening

statement] unless the witness to that alleged confession is

subject to cross-examination”– does not fall “well within the

mainstream of” Confrontation Clause precedent. 

Petitioner contends that his prosecutorial misconduct claim

necessarily encompassed the “more serious” Confrontation

Clause violation. However, petitioner’s prosecutorial

misconduct and Confrontation Clause claim involve distinct

legal analyses. See Frazier, 394 U.S. at 736-737 (holding that

a prosecutor’s good or bad faith in expecting a witness to

testify is not controlling in determining whether a defendant’s

right of confrontation, was violated, but finding that, because

of the prosecutor’s good faith there, no prosecutorial

misconduct claim could lie). Were we to hold that petitioner

fairly presented his Confrontation Clause claim to the state

courts on direct review, state courts would be compelled to

consider sua sponte all possible federal legal claims that a

petitioner’s factual allegations might arguably support. The

principle of comity underlying the exhaustion doctrine does

not permit us to force state courts to do so.

Because petitioner did not fairly present his Confrontation

Clause claim to the Michigan courts on direct review, the

state courts, on such review, could not have actually enforced

any applicable state procedural rule against that claim. See

Seymour, 224 F.3d at 554-55. We now turn to whether the

state courts enforced such a rule against his Confrontation

Clause claim on state collateral review. 

 2. State Collateral Review

In a motion for relief from judgment under M.C.R. 6.500,

petitioner submitted to the state trial court on collateral

review his Confrontation Clause claim along with his claims

of ineffective assistance of trial and appellate counsel

surrounding their failure to identify and to raise the

Confrontation Clause issue, as such, at trial and on direct

30 Hicks v. Straub No. 03-1124

16Because the state trial court, on collateral review, denied

petitioner’s Confrontation Clause claim on the merits, petitioner also

failed to comply with M.C.R. 6.508(D)(2). Yet, by finding that petitioner

procedurally defaulted his Confrontation Clause claim under M.C.R.

6.508(D)(3), we need not and do not decide whether petitioner also did so

under subsection (2). 

review, respectively. As discussed above, the state trial court

denied petitioner’s motion for relief from judgment. People

v. Hicks, No. 93-2188FC (Calhoun County Circuit Court

March 16, 2000). Both the Michigan Court of Appeals and

theMichigan Supreme Court denied petitioner leave to appeal

the trial court’s denial of his motion for relief from judgment

on the ground that petitioner failed “to meet the burden of

establishing entitlement to relief under M.C.R. 6.508(D).”

People v. Hicks, 463 Mich. 978 (Mich. Feb. 26, 2001). 

The district court held that petitioner failed to comply with

only M.C.R. 6.508(D)(2) based upon its previous finding that

petitioner had fairly presented his Confrontation Clause claim

to the state courts on direct review and, thus, that the state

courts had decided that claim against petitioner. Since we

have concluded, as discussed above, that petitioner did not

fairly present his Confrontation Clause claim to the state

courts on direct review, we conclude that petitioner failed to

comply with M.C.R. 6.508(D)(3) when he did not raise his

Confrontation Clause claim on direct review.16

In denying petitioner leave to appeal his motion for relief

from judgment under M.C.R. 6.508(D), the Michigan

Supreme Court, the last state court rendering judgment on

petitioner’s Confrontation Clause claim, actually enforced

M.C.R. 6.508(D)(3) against petitioner so as to bar its review

of that claim. As Simpson v. Jones, 238 F.3d 399, 407-08

(6th Cir. 2000), makes clear, the Michigan Supreme Court’s

general invocation of M.C.R. 6.508(D) in denying such leave

constitutes an adequate, implicit invocation of the specific

procedural bar of whichever subsection of M.C.R. 6.508(D)

applies. See Burroughs v. Makowski, 282 F.3d 410, 413-14
No. 03-1124 Hicks v. Straub 31

(6th Cir. 2002) (applying Simpson). Because M.C.R.

6.508(D)(3) was both firmly established and regularly

followed at the time of petitioner’s right to direct appeal, it

constitutes an adequate and independent state procedural

ground properly foreclosing federal habeas review of his

Confrontation Clause claim. See Friedman v. Smith, No. 02-

1255, 2003 WL 22976586, at * 7 (6th Cir. Dec. 5, 2003)

(finding that M.C.R. 6.508(D)(3), which the Michigan

legislature promulgated in 1989, has been regularly followed

since 1990). We find, therefore, that petitioner procedurally

defaulted his Confrontation Clause claim on state collateral

review.

Even though petitioner procedurally defaulted his

Confrontation Clause claim in state court, he may,

nevertheless, obtain federal habeas review of the claim if he

demonstrates either: 1) cause for his failure to comply with

the state procedural rule and actual prejudice flowing from the

violation of federal law alleged in his claim, or 2) that a lack

of federal habeas review of the claim’s merits “will result in

a fundamental miscarriage of justice.” Coleman, 501 U.S. at

750. Petitioner, pursuing the former route only, contends that

his appellate counsel’s failure to raise his Confrontation

Clause claim on direct review constituted ineffective

assistance of counsel in violation of the Sixth Amendment

and, thus, serves as the requisite cause to excuse his

procedural default under M.C.R. 6.508(D)(3). As to the

prejudice component, petitioner contends that the

Confrontation Clause violation alleged in his claim was

meritorious and would have constituted reversible error. 

Attorney error that rises to the level of ineffective

assistance of counsel in violation of the Sixth Amendment

may constitute cause for a procedural default. Murray, 477

U.S. at 488-89. To establish that counsel’s assistance was

ineffective, the petitioner must demonstrate that: 1) counsel’s

performance was deficient in that it “fell below an objective

standard of reasonableness”; and 2) this deficient

performance actually prejudiced him in that there is a

32 Hicks v. Straub No. 03-1124

17Petitioner did not procedurally default his claim of ineffective

assistance of appellate counsel. State collateral review was the first

opportunity that petitioner had to raise this claim. In denying petitioner’s

motion for relief from judgment, the state trial court decided petitioner’s

ineffective-assistance-of-appellate-counsel claim against petitioner–albeit

without any reasoning. Thus, when the Michigan Supreme Court denied

petitioner leave to appeal this denial under M.C.R. 6.508(D), it was

implicitly invoking only subsection (2) with respect to petitioner’s

ineffective-assistance-of-appellate-counsel claim. 

However, as the district court correctly found, M.C.R. 6.508(D)(2)

does not constitute a state procedural ground that is adequate to bar

federal habeas review. 28 U.S.C. § 2254(b)(1) prohibits a federal court

from granting habeas relief to a state prisoner on a federal claim unless

that prisoner has exhausted all available remedies in state court with

respect to that claim. Thus, a federal court may not justly find that a

prisoner procedurally defaulted his federal claim simply by virtue of

receiving an adverse judgment on that claim while attempting to exhaust

it in state court. Such a doctrinal Catch-22 would effectively foreclose

federal habeas relief. Indeed, state prisoners cannot pursue postconviction relief in federal court for federal claims for which the state

court already granted such relief. In addition, as § 2254(d) illustrates,

AEDPA contemplates federal habeas review following an adverse statecourt adjudication on the merits of a state prisoner’s federal claim.

reasonable probability that, but for counsel’s deficient

performance, the proceeding’s result would have been

different. Strickland, 466 U.S. at 687-88, 694. 

Here, petitioner has failed to establish that his appellate

counsel’s failure to raise a Confrontation Clause claim on

direct review constituted ineffective assistance under

Strickland so as to serve as cause to excuse his procedural

default of that claim. Even assuming arguendo that appellate

counsel’s failure to raise a Confrontation Clause claim on

direct review was objectively unreasonable so as to constitute

deficient performance,17 petitioner has failed to demonstrate

that this failure actually prejudiced him. Appellate counsel’s

failure to raise the Confrontation Clause claim on direct

review could only have prejudiced petitioner if there were a

reasonable probability that counsel’s pursuit of that claim

would have resulted in a successful appeal. McFarland v.
No. 03-1124 Hicks v. Straub 33

18We examine the merits of petitioner’s Confrontation Clause claim

only to determine if appellate counsel was unconstitutionally ineffective

for failing to raise it on direct review. See McFarland, 356 F.3d at 701

n.3. 

Yukins, 356 F.3d 688, 699 (6th Cir. 2004); see Williams v.

Taylor, 529 U.S. 362, 392-93 (2000) (holding that, where

counsel’s ineffective assistance did not deprive the petitioner

“of any substantive or procedural right to which the law

entitled him,” the petitioner cannot satisfy Strickland’s

“prejudice” component). 

Petitioner contends that there is a reasonable probability

that, but for appellate counsel’s failure to raise a

Confrontation Clause claim on direct review, that claim

would have prevailed and resulted in a reversal of his

conviction. In support, he relies upon Frazier v. Cupp, 394

U.S. 731 (1969), Bruton v. United States, 391 U.S. 123

(1968), Douglas v. Alabama, 380 U.S. 415 (1965), and

Pointer v. Texas, 380 U.S. 400, 407-08 (1965) (holding that

the admission into evidence at the petitioner’s trial of a

witness’ preliminary examination testimony inculpating the

petitioner violated his right of confrontation where that

witness did not testify at trial and where the petitioner did not

have a “complete and adequate opportunity to cross-examine”

that witness through counsel at the preliminary

examination).18 However, as discussed above, this case

materially differs from Bruton, Douglas, and Pointer.

Petitioner’s reliance on Frazier is misplaced because the

prosecutorial conduct in the present case is even less

objectionable than in Frazier. Thus, petitioner has failed to

demonstrate that there is a reasonable probability that, but for

appellate counsel’s failure to raise a Confrontation Clause

claim on direct review, that claim would have prevailed and

resulted in a reversal of his conviction. Consequently,

appellate counsel’s failure to raise a Confrontation Clause

34 Hicks v. Straub No. 03-1124

19Petitioner has also failed to show the requisite prejudice to excuse

his procedural default of his Confrontation Clause claim. Because he has

not established a Confrontation Clause violation in the first instance,

petitioner, thus, cannot establish that he suffered actual prejudice flowing

from such a violation. 

claim on direct review cannot serve as cause for petitioner’s

procedural default of that claim.19

For the preceding reasons, we REVERSE the district

court’s grant of a writ of habeas corpus to petitioner and

remand to the district court with instruction to dismiss the

petition for the writ. 
No. 03-1124 Hicks v. Straub 35

_________________

CONCURRENCE

_________________

ROGERS, J., concurring. I concur in the result and in

much of the majority’s opinion. It is not sufficiently clear to

me, however, that on collateral review the Michigan Supreme

Court relied upon MCR 6.508(D)(3), where such an inference

relies entirely upon our after-the-fact determination that

(D)(3) rather than (D)(2) was the appropriate provision to rely

upon. In Burroughs, in contrast, it was “undisputed that

Burroughs failed to properly present his arguments for state

appellate review.” 282 F.3d. at 413. However, for the

reasons given in the majority’s discussion of Douglas,

Burton, and Frazier, petitioner has not adequately shown a

violation of the Confrontation Clause under applicable

Supreme Court precedents.