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ATION: 2004 FED App . 0248P (6th C ir.) File Name: 04a02 48p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

M ICHAEL H ICKS ,

Petitioner-Appellee,

v.

D ENNIS M. S TRAUB , Warden, Responde nt-Appel lant. X - - - -

> , - - N No. 03-1124

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-70951—Arthur J. Tarnow, District Judge.

Argued: March 18, 2004
Decided and Filed: July 29, 2004

Befor e: KENNEDY, ROGER S, and COOK, Circuit

Judges.

_________________ COUNSEL

ARGUED: Brad H. Beave r, OFF ICE

OF THE ATTORNEY GEN ER AL, Lans ing, Michigan, for Appe llant. Car ole M. Stanyar, Detroit, Michigan, for Appellee. ON BRI EF: Brad H. Beaver, OF FICE OF T HE A TTO RNE Y GE NER AL, Lansing, Michigan, for A p pellant. Carole M. Stanyar
, Detroit, Michigan, for Appellee. 2 Hicks v. Straub No. 03-1124

1 The court gr an ted th e petition unl ess t he Stat e of Michigan scheduled a new trial for petitioner within ninety days. KENNEDY, J., delivered the opinion of the co urt, in which COOK, J., joined. ROGERS, J. (p. 35), delivered a separ ate concurring opinion.

_________________ OPINION

_________________ KENNEDY, Circuit Judg e. The di strict c ourt cond itionally granted the petition for

a wri t of habeas corpus under 28 U.S.C. § 2254 of Petitioner Mich ael H icks, a Michigan prisoner, on his cla

im that his Sixth Amendme nt right to confrontation

was v iolated at his first-degree murder trial when the prose cutor, du

ring his opening st at ement, advised the jury that petit ioner ha d confes sed to the murder

to a fellow jail inmate an

d, yet, subse quently

failed, despite a

good fa ith effort, to produc e that inma te as a witne ss. 1 The district court found that the procedural default doctrine did not bar the review of petiti oner’s Confronta tion Clause

claim. Sp ec if ic al ly, the cour

t held tha

t (1) peti tioner ha d “fair ly presented” his Confrontation Cla use clai m to the sta

te courts

ondirect r

eview; (2) to the e

xtent that the sta

te cour ts on direct review would have found tha t petitione

r proce durally defaulted his Confrontation Clau se claim as a result of trial counsel’s failure

to object to the unde

rly ing viola tion at tri al, the ineffective assistance of trial counsel would have excused any such default; and
, (3) petit ioner ha d not proc edurall

y defaulted his Conf

ront ation Clau se claim b efore t he state courts on collateral re view because the state procedural ground uponwhichthe state

courts de nied peti tioner le ave to appeal was inadequate to bar fede ral habeas review.

Inreachi ng the me rits of petitioner’s Confrontation Clause Claim, the district court

found that

the prosecutor’s openingNo. 03-1124 Hicks v. Straub 3

sta tement comment concerning petitioner’s alleged confess io n violated petitioner’ s rig ht to conf rontation , 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

anun re as on ab le ap pl ic at io n o f t he pe rt in en t, cl ea rl yestablished Supreme Court precedent.
Respondent

Dennis Straub appeals this grant of thewrit of habeas corpus on the following grounds: (1) the district court erred in rea c hing the

merits of

petitione r’s clai m becaus e petitioner procedurally

defaulted his claim by

failing to raise it ondirect review and because trial c ounsel’s failure to object did notconstitute ineffective assistance of counsel that would

excusethis defa

ult; (2) the d

istrict c ourt viola

ted 28 U.S. C. § 2254(e)(2) when it hel d an evidentiary hearing on petitioner’s claim of ineffective assistance of trial counsel because petitione r had fa iled to de

velop the factua l basis underlying

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

had the authority to re ach the merits of petitioner’s Confrontation Clause claim, it erred in granting relief because the prose cutor’s

r em ark did not violate petitioner’s right to confrontation under there le va nt , c le ar lyestablished Supre

me Court pr

eceden t.

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
Adjudicationof resp ondent’s present appeal requires an understandingof the complex procedural history that bears upon that a

ppeal in t he state courts. 4 Hicks v. Straub No. 03-1124

A. Pre-Trial and Trial

OnJuly 25, 1993, petitioner was arrested and cha rged w ith the first-degree murder of Shaw n Stalworth, who h ad been shotto death earlier that day as h e was lea

ving his house in Battle Creek, Michigan. Followin g his ar rest, petitioner was confined in a loca

l jail, whe

re he al le ge dl y c onfesse d to another inmate, Lorenzo Brand (“ Brand”), that he had committed

the murde

r. Bra nd testi fied to this confession at petitioner’s preliminary hea ring. At petitioner’s jury

trial, the prosecutor, during h

is opening

statemen t, stated, in pertinent part:

D efendantwas arrested. He was char ged. He was arraigned. He was taken to the City of Battle Cree k lockup, not the county jail, but the lockup pending transfer, moving hi

m over he

re. While he was t here[,] there was another person in the lockup. He go es , h ey, my mom just saw you on a videotape . . . . H e said my

mom told me she

just saw a

person a nd they accuse d him of homicide. You kill that man? What did he say? Yep, yep.

At the close of the state’s case, the prose cutor informed the court that the state would not c all Bra

nd as a wi tness because it had been unable to locate him. The prosecutor adm itted that he did not

believe that

the state’s efforts to locate Brand met with the due diligence required under Michig ancase law for the admission of preliminary e xamination testimony. The trial court agreed and dec lined to admit the te st im on y. Despite the prosecutor’s failure to p roduce B rand, de fense counsel neither ob

jected to nor requested a mistrial based uponthe prosecutor’s opening statement relay ing that confess io n. Further, defense counsel never mentioned the prosecutor’s statement

r egarding petitioner’s alleg ed confession

in hi s open ing statement, which he had reserved until the close

of the pr

osecution’s c ase. Neither defense counsel nor the prosecutor mentioned the alleged c onfession in closing arguments.No. 03-1124 Hicks v. Straub 5

2 The only

pl ausi ble way for the jur y to make the necessary

connec ti on w o uld have been to compare the li st of

witn esses mentioned during the voir dire wi th t he actua l witnes ses called. W hether the jury made that connection is unknown. The trial court

gave the jury

the customary instruction that “[t]he lawy

ers’ sta tementsand arg

uments are not evidence,” and furt her instr ucted:

Lor enzo Brand is a missing wi tness whose appearance

was the responsibility of the [p]rosecution. You may infer that the witness’ testimony would have no t been favorable to the [p]rosecution’s case.

However, because the prosecutor’s opening statement

never named the jail inmate to whompetitioner allegedly confessed, and because no mention

was ever ma de before the jury that Brand was that inmate, the jury ha d no kno wledge with which to tie the trial court’s “Bran d” instru ction to the prosecutor’s opening st a tement regarding the alleged confession. 2 Moreover, im me di at el y a fter t his instruction, the district court gave an instru

ction as to

when the

jury could pro

perly

c onsid er an unrelated out-of-court statement made by petitioner that had been admitted into evidence.

The jury convi cted petitioner of first-degree mur der and pos sessionof

a f ir ea rm du ri ng th e c om mi ss io n o f a fe lo ny. The trial court sentenced petitioner to life imprisonment withoutparole on the murder co nvic tion and to two y ears’ imprisonment on the felony-fire arm conviction.

B. Direct Review

Petitioner filed an appeal as of right in the Michiga n Court

o f Appeals. Petitioner presented, among others, the following two claim s:

I. Defendant

. . . wa s denied a fair trial by the prosecutor’ s numerous

instance s of miscon

duct, 6 Hicks v. Straub No. 03-1124

3 Petit ioner also argued that t rial counsel r endered ineffecti ve assi stance when he failed to im peach a witness with tes timon y from h is preliminary examination; t o make app ropriate motions, both before and d uring tri al; to cr oss- exami ne a wi tnes s conc erni ng her in- cou r t identif ication of de fenda nt with her prior sta teme nt that she c ould n ot identify the perpe trator; and to pre pare p etitioner’s alibi defense ade qua tely. including arguing matters not in ev idence, such as defendant’s supposed admission t o committing the murder, and by repe titively cross-ex a mining defendant on the irrelevant matter of his b eing a marijuana dealer.

II. Becaus e o f def

ense coun sel’ s fai lure s[,] .

. . [defenda nt] was denied hi s rights to the effective assistance of counse l, to present an effective defense, and to a f air tria l.

Petitioner only asserte d th a t these instances of prosecutorial misconduct

violated defendant’s rights to due process and a fair trial; he never argued that this misco nduct also violated his Sixth Amendment rightto confron tation. Du

ring his appeals inthe state courts, petitioner argued that no curative instruction could have remedied thepreju dice to de fendant

. During the direct appeal, no one mentioned that the c urative i nstruc tion that iden

tified B rand wa s refer

ring to t he jail inmatein the pro se cuto r’s opening statement to whom petitioner allege dly

confe ssed. Since trial counsel never objected to this alleged prosecutorial misconduct, petitioner argue d that this f

ailure to object r esulted in

the requ isi t e manifes t i njustice which rendered any such objection

un ne ce ss ar y, and, alte

rnati v ely , that the

failure amounted

to

anineffec tiv e assistance of counsel. Thus, petitioner’s independent

claim of ineffective assistance of counsel rested, in part, u pon this fa

ilure by trial cou nsel. 3

Peti tionerfi led a motion to remand the case to the trial court for an ev ident iary hea

ring on his claim of ineffectiveNo. 03-1124 Hicks v. Straub 7

assistance of trial c ounsel. T he Michig an Court o f Appea ls 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 tha t tria l counsel , by

failing to object to the alleged instances of prosecutorial misconduct at trial, had fail ed to pre serve th is claim f or re view abs ent a misca rriage 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 openin

g state ment that d

efenda nt alleg edly confessed to the crime to a fell ow inmate, even though the prosecution

later fa iled to pro duce tha

t witness .” Id. The court reasoned that the trial judge’s instruction to the jury that it “could assume th at the wit

ness the prose cution wa s unable to produce would have testified u nfavorably

to the prosecution, and that . .

. [it was] not to consider defendant’s alleged out-of-court admission as evi dence o f his gui lt” remedied any potential prejudice

that may have

resulted from this comment.
After noting that

the defendant failed

to properly pre serve the issue, the court of

appeals nonethel ess decided

to addre ss the merits of

his ineff ective a ssistance

of trial c ounsel cl aim, and found that he “failed to overcome the presumption that he

was affor d ed effective assistance of counsel.” Id. Sp ec if ic al ly, the court he ld that “in each instance, the action [tha t] def enda nt sugges ts tha

t cou nsel should

have take n[] would have either been futile, or a matter of strategy

that th[e] [c]our t is unwilling to second-guess on appeal.” The Michigan C our t of Appe als denie d petitione r’s motion

to remand on the g round tha t petitione

r “faile d to identi fy an issue sought to be review edon appeal and demonstrate by affida vit or an offer of proof rega rding the facts to be established

at a hearing,” as M.C.R. 7.21 1(c)(1 )(a)(i i) require s. People

v. Hicks , No. 171833 (Mich. Ct. App. Dec. 6, 1995).

Petit ioner t hen file d a delay

ed applic ation for

leave to appeal to the Mich

igan Supreme Cour

t, prese nting the same 8 Hicks v. Straub No. 03-1124

4 Pe tit ioner had pre viou sly fi led–on Janua ry 26, 1999–a wri t of habeas corpus under 28 U.S.C. § 2254. Conc eding tha t hi s pet it ion

con tain ed u nexhausted claims, peti tioner explained that he had filed the peti ti on to avoid a perceive d viol ati on of t he appl icabl e st atut e of limitations. Petit ioner s tate d that he wante d to pursue stat e colla teral review so as to exhau st these cl aim s as wel l a s t o rai se c lai ms based u pon

a denial of h is rig ht t o conf ront ati on and upon a denial of his right to the effecti ve assi stance of counse l. The di stri ct cou rt di smis sed t he pet it ion

w ithout prejudice on Sep tember 2 9, 199 9, pursuant to the p arties’ sti pulation that 28 U.S .C. § 2 244 (d)(1 )’s one -year statute of limit ations

wou ld be toll ed during t he pendency of sta te coll ateralrevie w, and t hat

an y re- fi led § 2254 petit ion woul d not co nstit ute a “s ucces sive petition” under 28 U.S.C. § 2 244(b)(2). Hicks v. Straub , No. 99- 70299 (E.D. M ich. Se

ptemb er 29, 1999). claims that he had p resented to the Michigan Court of Appeals

. Petitioner also filed a motion to remand the case to the tri al court for an evidentiaryhearing on his ineffectiveassistance-of-trial-counsel claim. OnNovember

7, 1997, the Michigan Supreme Court denied petitioner leave to appeal and denied the motion for remand o n the g round that it was “not persuaded that [it sho u ld review] the questions presented.” People v. Hicks , 456 Mich. 884 (Mich. 1997).

C. State Collateral Review

OnJanuary 29, 1999, peti tioner filed a motion for relief from judg ment in the trial court, pursuant

to M.C.R. 6.500. 4 The record

indicate s that p eti tioner made the following two claims, a mong othe

rs, in tha t motion:

I. [Petitionerwas] denied his cons ti tutional r ight to confront witnesse s again st

him whenthe prosecutor advised the ju ry during o penin g s t atement that defendant had confessed to the murder, where the prosecutor

witho ut even the pretense of due diligence failed

thereafter

to produc e the witness to the alleged confession, where de fense counsel never responded

to t he issue of the “confession” in any

wa y, and wher

e the tria l court’s instructi ons f

ai ledNo. 03-1124 Hicks v. Straub 9

5 During an earl ier he aring, at whi ch only the prose cutor

appeare d, the
prosec utor

argued t hat t he Michigan Court

of Appeals had deci ded al l of the claims in peti tioner’s motion for relief from judgment. The trial judge then st ated:

Th at’s what I tho ught. I read the Court of Appea ls opini on again, the i neff

ecti ve assi stance , th e all eged prosecut orial misco nduc t, the comment s made in t he opening s tate ment th at

were never

fol lowed u

p a bout the jail compatriot claiming the [d]efendant made statements. In any event a ll of these have been utterly to remedy the e

normous prejudice to the defenda nt.

II. [Petitionerwas] deprived of the effective assistance of counsel w hen trial counsel failed to object or

move for mistrial based upon an obvious deprivation of the rig ht to confront witnesses following the prosecutor’s unsupported statement to the jury that the defendant had co nf

essed, a nd where appella te counsel failed to frame the issue properly as the deprivation

of the right to c onfront w itnesses i n violation of the Sixth Amendment.

Insupport of his claims, petitioner argued, for the f irst time, that the trial cou

rt’s jury instructi on on Bra

nd was inc apable of curing the prosecutor’s statement to the jury that petitioner had confessed to a jail inmate because th at statement never discl osed the name of that jail inmate while the court’s instruction only refe

renced Brand by

name, not by

his role as the jail inmate to whom petitioner al legedly confessed. Petitioner further argued that, had Brand testifie d, defen se counsel wou ld have had substa ntial evid ence wi th which to im pe ac h h is te st im on y.

Inan order dated March 16, 2000, the stat e trial court denied petitioner’s motion for reli ef from j udgmen t. People

v. Hicks , No. 93-2 188FC (Ca lhoun Count

y Cir cuit Cour t March 16, 2000). The court outlined its reas ons for that denial at a hearing on March 6, 2000. 5 During that h ea ring, 10 Hicks v. Straub No. 03-1124

add ressed , so that m otion is denie d.

Petitio ner’s counsel fail ed to attend this hearing due to a scheduling err or. The state co urt re-scheduled the hearing on p etitioner’s m otion fo r M arch 6 , 200 0, at wh ich hea ring bo th cou nsel we re pre sent.

6 Pre suma bly in res ponse to t his cont enti on, th e prosecut or argued that pet it ion er s houl d not

be per mi tt ed to prese nt an arg ume nt that is simply w ord ed d ifferently. petitioner argue d that, althoug

h his Confr

ontation Cl ause and Due ProcessClause claims are grounded on the same factual predica te, they are leg ally

distinct. Therefore, he argued the Michigan Court of A

ppeals de cided onl

y the latter, but not the former claim. 6 Petitio ner further argued that the ineffec tive

as sistance of appellate counsel had prevented him from presentinghis Confrontation Clause claim to the c ourt of appeals

. He asserted that both trial co unsel and appella te counsel were ineffective for failing to identify and to raise the Confronta

ti o nClause claim at trial and on direct review, respectively

. The tr ial c ourt note d that the Michiga n Court of A

ppeals had held that trial counsel was not ineff ective. Nevertheless, it stated that, “[b]ecause this is a first degree murder convictionand a felony

firearm conviction, . . . [ it was] willing to address the underly ing substance o f t he motion.” The court sta

ted that, because

defendant testified

that he had

analibi defense and completely denied havingany

thing todo with the murder, the defense “clear ly contradicted the [p]rosecutor’s opening

stateme nt [that defendant had confessed].” The trial court then noted that it had instructed th e ju ry t hat the lawye

rs’ arguments and statements are not evidence and that the jury’s decision must be base d upononly evidence. The court concluded that, “technically ,” there is no “confrontat ion issue” because, absent the prosecutor’s

s tatement , “t he re wa s n o e vi de nc e b ro ug ht in to pl ay agains t the defendant.” While reading onto the record the Michigan Courtof Appeals’ opini on denying petitioner’s ineffective-No. 03-1124 Hicks v. Straub 11

7 We note t hat t

he Michigan Court

of Appeals’ decisi on, on dir ect review, necessari l y addressed only petit ioner’s cl aim of ineff ective assistanc e of trial cou nsel. We further note that, whil e the t rial cour t, in denying petition er’s post-convicti on motion, did no t expre ssly articulate its reaso ning for the de nial of p etitioner ’s claim tha t appellate counsel was ineffect ive for

fai lin g to rai se a Confronta tion Cl ause chal lenge on di rect review, such a holding impli citly fol lows f rom its express fin ding t hat t rial

cou nsel wa s not ine ffective fo r failing to ra ise such a challe nge at tria l. assistance-of-cou

nsel claim, the trial court underscored the following excerpt a s the most im

portant in its view:
[T]he record provides no support for [d]efense’s proposition that counsel’s failure to object to the admission of e vidence, his failure to request a pretrial lineup, his failure to extensively cross-e xamine an eyewitness
, or his pre senta tion of the [d]efendant’s defense fell below the objectiv e sta ndard o f

reasona bleness. We find that de fend ant has f ailed to

overcome the presumption that he was afforded effec

tive assistanc e of coun sel.

Based upon this excerpt, the trial cour t concluded that petitioner had not presented a “specific discrete a llegation of ineffective assistanc e.” Rath er, acc ording t o the tria l court, petitioner’s allega t ion “was wide-ranging” and involved a “number of diffe rent a rea s . . . to demonstrate ineffective assistance.” As a result, the trial court also agree d with th e court of appeals that trial counsel ’s assistance was not ineffective, reasoning tha t defe ndant had posited an alibi defense be fo re th e j ur y, 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 delay ed applic ation for

leave to appeal the trial court’s denial of

his motion f

or relie f from jud

gment in the Michigan Court o f Appea ls, prese nting the se claims : 12 Hicks v. Straub No. 03-1124

I. The trial cou

rt w as cl early e

rroneous in rejecting defendan t []’s claim tha

t he was d

enied his constitutiona l right to conf ront witne sses ag ainst him when the prosecutor advised

the jury during

opening statemen t that defendant had confessed to the murder, where the p ros ecutor without even the pretens e of due diligence failed thereafter to produce the witness to

the alleged confe ssion, whe re defe nse
c ounsel never responded to the issue of th e “confession” in any way

, and where the trial court’s instructions fa il ed ut te rl y to re me dy t he enormous prejudice to the defendant.

II. The trial court was clea rly errone ous in rejecting defendant[]’s claim tha

t he w as deprived of the effective assistanc e of coun sel w hen trial counsel failed to object or move for mistrial based upon an obvious depriva

ti on of the right to confront witnesses following the prosecutor’s unsupported statement to the jury that the defe ndant ha d confessed, and where ap pellate c ounsel fa iled to frame the issue properly a s the deprivation o f the right to confront witnesses in violation of the Sixth Amendmen

t.

The Michiga

n Court of A

ppeals de nied peti tioner le ave to appeal on the ground that petitioner had f aile d “to meet the burden of establishing entitlement to rel ief un der M.C.R. 6.508.” People v. Hicks , No. 226074 (Mich. Ct. App

. Aug. 11, 2000).

Petitio ner then file d a delay

ed applic ation for

leave to appeal in the Mich

igan Supreme Cour

t, prese nting the same claims that he ha

d presen te d to the Michigan Court of Appeals

. The Michigan Supreme Cour t deni ed petitioner leave to appeal, rulingthat petitioner had failed “to meet the burden of estab lishing e

nti tlemen t to relie f 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 distri ct court determined that habeas corp us rel ief

was n ot warrant ed for his claims based on a wi tnes s’ in- court iden ti fi cati on of hi m. D. Federal Collateral Review Before the District Court

OnMarch 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 constitution al r ight to confront witnesses against him when the prosecutor advised the j ury during

opening statement that petitioner had confe ssed to the murder, where the prosecutor

withou t even the pretense of due diligence failed

thereafter to pr

oduce the witness to the alleged confession, where de fense counsel never responded

to the issue of th e ‘confession’ in any

wa y, and wher

e the cou rt’s instr uction fa iled utter ly to remedy the

enormous

prejudic e 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 witne sses follow ing th e p rosecutor’s unsuppor

ted state ment to the

jury th a t the petitione

r had confessed, and wher e appell ate counsel failed to fr a me this issue properly as the d eprivation

of the rig

ht to conf

ront witne sses in violation of the Sixth Amendment.

OnO ctober 15, 2002, the district court conducted an evidentiary

hearing in which it found trial counsel was ineffective, and co ndit ional ly gr ant ed petitioner a writ of habeas c orpus on p etitioner ’s Confrontation Cla use clai m. 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 t he trial c ourt’s de

nial 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 , 4 63 Mich. 978 (Mich. Feb. 26, 2001). I

n so holding, the state court did not specify whether it was rely

ing upon a

particular subsection of M.C.R. 6.508(D). Before the distric t court, petitioner and

r es pondent

argue d about whether th e Michig an Supre me Court’s denial rested upon an adequate and

independ ent state procedurallaw 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 co urt may not gr

ant relief to the defendant if the motion . . . alleg es grou nds for r elief, other than jurisdictional de fects, which could have been raised on appeal from the conviction and sen ten ce or in a prior motion under this subchapter [of post- appe al re lief ], unless the defe

ndant dem

onstrate s (a) g ood caus e f or failure to raise such grounds on a ppe al or in the prior [post-app eal] motion, and ( b) actual prejudice from the alleged irregularities that support the c laim for relief.
Responde nt argu ed that, in denying

petitioner relief under M.C.R. § 6.508(D), the Michigan S u preme Cou rt implicit

ly relied upon subsection (3). Respondent argued that subsection(3) appl ied beca use, alt houg h petitioner had pr esented the factual pre dicate f

or his Conf

rontation Cl aus e claim to the Michigan courts on direct review by vi

rtue of h is prosec utorial misco nduct claim, he had not presented the legal argument for that c laim until st ate coll ateral review. Petitioner concedes that he did not expr es sl y present his ConfrontationClause cla im on direct review. However, petiti one r does arg

ue that he

“fairly present ed” his ConfrontationClause cl aim to the Michigan Court of Appea lsNo. 03-1124 Hicks v. Straub 15

9 Petit ioner asserted that because t

he Michigan cour

ts had n ot decided his Confrontation Clause clai m on dir ect rev iew , t

he Mic hi gan Supr eme Co urt, on co llateral re view, c ould no t h ave rel iedupon M.C.R. 6. 508 (D) (2) in den ying pe titioner lea ve to a ppe al his mo tion for r eli e f from judg men t. Th us, p etiti oner conceded – albeit impli citly – that the Michigan Supreme C ourt deni ed hi m su ch l eave pur sua nt to M. C.R. 6.508(D )(3). ondirect review based solely on his pres entati on of the factual predica

te. Acc ordingl

y, p eti tion er argues that there

was no basis for procedural defau lt under M .C.R. 6.508(D)(3). Alternatively, petitioner a rgued that appe llat e
c ouns el’s failure to raise the Confrontation Clause claim on direct review constituted ineffective assistance so as to excu se suchdefault. In suppo rt, petitione r claime d that app ellate counsel buried the C onfro ntation Cla use issue , the “mos t significant

constit utiona l deprivation in th[e] case,” in a “gard en-var iety prosecutorial misconduct claim,” a nd that, to the extent that

his Confronta

tion Clause

claim is me

ritorious
, suchineffective assistance suff ici ently prejudic ed him. Respondent

countered that petitioner’s appellate counsel did notrender ineffective assistance by framing the und erly

in g factual predica

te as a pr osecutor ia l mis conduct claim – the “normal ” and “ac cepted” legal t heory – rather than as a ConfrontationClause claim – an “ unu sual” and “creative” legal theory. Petitioner a lso a sserted that the Michigan Supreme Court’s “ar

b itrary and a

mbiguous” form order denying him leave to appeal his post-conviction motion for relief from judgment did not constitute an ad equate state procedural ground.

The districtcourt he ld

that the Mi chigan

Supreme C ourt, in deny ing peti tioner le ave 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) provid es:

The court may not g

ra nt relief to the defendant if the motion . . . alleges grounds for relief which were decided 16 Hicks v. Straub No. 03-1124

10 Resp ond ent’s brief st ates that “[t]he t rial court, perceiving no diff erence in t

he clai m from what

had been present ed during [p]etitio ner’s appeal of right
, denie d the m otion on the grou nd tha t [p]etitio ner co uld
not collate rally attack his co nviction on grounds already present ed in a prior appeal.” Thus, both the dist rict cou rt and r espo nde nt seem to conte nd th at t

he t ria l cou rt’ s deni al of peti ti oner’ s moti on for reli ef fr om judgment rested on this gr ound

. W hile the prosecutor made this argument before the tri al court in the initial ex parte hearing, and whi le por ti ons of the s ub s eq ue nt

h ea r i ng , on Ma rch 6, 2000 , reve al that t he trial court againstthe defendant in a prior appeal or proce e di ng under this subchapter [of post-app ea l relief], unless the defendant establishes that a retroactive change in the law has unde rmined the

prior de cision;

Inso holding , the distr ict cour t reasoned that, a

lth ough “[p]etitionercould have prese nted his Confronta

tion Clause claim in a clea rer man ner,” he “fairly present ed [it] to the Michigan state courts on direct revi ew.” I d. at 706. The districtcourt underscored that petitioner, in his brief to t he Michigan Court of Appeals, argued that the prosecutor engaged in mi scond uct by rel aying in hi s open ing stat ement petitioner’s alleged confession to the murder and then subs equently

failing, because of a lack of due diligence, t o pro duc e that inmate as a witness at trial. Id. Relying upon McMeans v. Brigano , 228 F.3d 674, 681 (6th Cir. 2000), the districtcourt concl uded t hat the facts underly ing the “prosec utorial misc onduct claim . . . [that petitioner pr es ented] 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 addr essed the Confrontation Clause issue.” Id. In further support, the district court posited that petitioner had expressly presented his Confrontation C la use claim, as such, on state collateral review, and tha t the Michigan trial court, on suc h revi ew, had agreed with the prosec utor that petitioner’s motion for relief from judgment only pr esen ted claims that he had

previously prese

nted to the state courts on direct review. 10 Id. Accord ing to the distri ct court , becau seNo. 03-1124 Hicks v. Straub 17

examined the Michigan Cou

rt of Appeals’ decision, the

trial co urt, atth at su bsequent hearing, expressly considered the merits of petitioner’s cla im s. In its o rder denying petitioner’s motion for relief from judgm

ent, the trial court adopted it s reasoning at the subsequent hearing as the basis for that denial.

11 In so holding, the distr ict court rel ied upon Ceja v. S tewart , 97 F.3d 1246, 1253 (9t h Cir . 1996), whi ch hel d tha t a s tat e cour t’ s appl ication of the rule of res judi ciat a i s not an a dequ ate proce dural bar to foreclose feder al hab eas re lief. petitioner fairly pre sented

his Confrontation Cla

use clai m to the Michigan courts on direct review, the cour ts, no t petitioner, bear the blame for their failure to rec ognize and to rule upon that claim. Id. The district court found tha t the statecourts’ fa ilure to recognize and to address petitioner’s fairly-pr esented Confrontation Clause claim in d e nying 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), th e court held that this state procedural law is inadequa te t o bar federa l habeas review because it is “simply a rule of res judicata barri ng a defe ndant from r e[-] liti gating c laims in a motion for relief from judgmen t w hich were decided adverse ly to him in a prior state court decision.” 11 Id. Thus, the district c ourt foun

d that pet itioner ha d not proc edurall

y defaulted his Confrontation Clause claim on state collateral review. Id.

2. Procedural Default Consideration on Direct Review

Before the distric t court, respondent argued that, to the

ex tent petitione r fairly present ed his Conf

rontation Cl aus e claim to the state courts on direct review by virtue of presentingthe factual basis u nderlying his prosecutorial misconduct

claim, pe

titio n er, neve

rtheless , proced

urally defaul ted that claim. As respondent pointed out, the Michigan Court of Appea ls, on direct review, found that 18 Hicks v. Straub No. 03-1124

12 On direc t review , the M ichigan Co urt of Ap pea ls held t hat petit ioner had fa iled to p reserv e his prosecut orial misconduct clai m based
upon the prosecutor’s opening st atement on the ground that petit ioner ha d fail ed to obj ect to t

his st ateme nt a t t

ria l, and that , be cause the jury instruct ions remedied any prejudice resulti ng from this s tatement, no manifest injustice existed to excuse this failure. T hus, as re spo nde nt aptly
argu ed, to t

he exte nt that petitioner had raised his Confrontation C lause claim on direct review by virtue of presenting the sam e facts underl ying his prosecutorial misconduc t cla im, the M ichigan Co urt of App eals’
pro ced ural-de fault rul ing woul d apply wit h equal for ce t o t ha t cl aim as well. petitio ner had procedurally

defaulted his prosecutorial misconduct

claim by failing

to object at trial to its underlying factual predicate – t

he pr osecutor’s opening statement relaying petitioner’s purported confession. Respondent further argue d that tria

l counsel ’s failu

re to object to

this allege d C onfronta

tion Clause

violation d

id not cons titute ineffective assista

nce of c ounsel so as to excuse any such default

. Responde

nt asser ted that p eti tio ner’s trial counsel chosenot to object or m ov e for a m istrial when the sta

te failed to produce Brand as a m at te r o f t ri al st ra te gy. Sp ec if ic al ly, respondent maintained that the failure of Brand to appear was a fortunate turn of e vents because Brand’s testimony would o nl y have strengthened the prosecution’s

case. Moreove

r, according to

responde nt, had tr ial counsel objected and rec eived a m

istria l, ther e would have been the risk that the gover

nment, at the re- trial, wo

uld have be en able to produce Brand as a witness.

The distric t court held that, in case the Michigan Court of Appeals
, on direct review, found petitioner’s Confron ta tion Clauseclaim

procedu rally default ed due to h

is trial counsel’s failure to o bjec t to that und erly ing viola tion at tri al, 12 that failure constitute d ineffective assistance and, thus, excused any such proceduraldefault. After conducting an evidentiary hearing onthe matter, the district court agreed with petitioner that trial couns el’s assi stance was objectively unreasonable for the f ollowing reasons : 1) it should have been obvious toNo. 03-1124 Hicks v. Straub 19

13 Ac cording to petiti oner, such impeachment evidence includ e s Bra nd’s admissions that he anticipated t

ha t t he pr osec utor “m ight” he lp him out with c harge s that he w as facing at the tim e, th at t he alle ged confes sion

occurred within f

eet of a large s ign warning t hat everythi n g

was being reco rded
, and the implausible nat ure of petiti oner having confess ed to a c om pl ete stran ger at the very b eginnin g of their conversation. him that the prosecutor’s failure to pr oduce Brand at trial violated petitione r’s rig ht to conf

rontati on ; 2) he had no str a tegic reason n ot to object to this Conf rontation 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” a nd “wholly unsupported

by the record ” due tothe availability of substantial impeachment material a gai nst Brand; 13 and 4) he did not even obtain an adequa te curative instruction

because the instruction that the trial court gave did not ref erence Brand a s the jail i

nmate to whomp etitioner allegedly confessed. Id. at 712-13. The district court found

that, because the prosecutor’s unsuppor te d opening statement violated petitioner’s right to c onfr ont the witnesses against him, trial counsel’s deficient represe ntation sufficie ntly prejudiced petitioner. Id. Pursuant to 28 U.S.C. § 2254(d), the district

court further

found tha

t the prior -state court adjudication de nyi ng petitioner’s ineffective-assistanc e

of-trial-counsel claim on the merits constituted an

unreasonableapplication of Strickland v. Washington , 466 U.S. 668 (1984 ), the pe

rtinent, c learly

-establi shed Supr

eme Courtprecedent. Id. Thus, the district court foun d the p rocedural default doctrine did not bar its review o f petitioner’s Confrontation Clause claim on the merits. Id.

3. Adjudication on the Merits
Rely in g upo n Harris v. Stoval , 212 F.3d 940 (6th Cir. 200 0), the district court held that, where, as here, the petitioner fairly present ed his federa

l constitut ional cla imof

a violation of the confrontation c lause to the state courts on direct review, and those

courts, indenying

that claim, failed 20 Hicks v. Straub No. 03-1124

to address it, a federal court must conduct an independe nt 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 merit s – albeit without any reasoning – for purposes of triggering § 2254(d). Id.

Inreviewing

petitioner’s Confrontation Clause Claim, the districtcourt fo

und that the prosec

utor’s op ening st

ateme nt relaying p etitioner’s purported confession vi olate d petitioner’s right

to confrontation, and that this violationwas not harmless error. Id. at 711. The district court fur the r found, pursuant to § 2254(d), that the prior state-court denial of petitioner’s Confrontation Clause claim on the merits was

anun re as on ab le ap pl ic at io n o f t he pe rt in en t, cl ea rl yestablished

Supreme Court precedent. Id. at 712; see generall y Pointer v. Texas , 380 U.S. 400, 403 (1965), Bruton

v. United States , 391 U.S. 123 (1968), and Fr a zier v. Cupp
, 394 U.S. 731 (1969) . Consequently, the district court conditionally

granted pe t itioner’s application for a writ of habeas corpus under 28 U.S.C. § 2254 on h is C onfrontation Clause claim. Id. at 714.

II. Analysis

The provision s of the An titerror is m an d Effective Dea

th Penalty Act of 1996, Pub. L. No. 1 04-132, 110 Stat. 1214 (“ADEPA”), apply

t o petitioner’s habeas petition, which petitioner fil ed a fte r th e ef

fec ti ve d ate of t he a ct. “In a habeas corpus proceeding, we review de novo a district court’s legal conclusions and its factual findings for cl ear error .” Lott v. Coyle
, 261 F.3d

594, 606 ( 6th

Cir. 2001). We review de novo

a district court’s deter mi nations regarding a habe as petitioner’s proceduraldefault of any of his claims. Id. We review de novo a dist rict c ourt’ s dete rmina tion s conc ernin g a habeas petitione

r’s inef fective -assista

nce-of -counse l claim, a mixed question of law and fact. Id.No. 03-1124 Hicks v. Straub 21

A. Pro cedural D efault
Subj ectto two exceptions, 28 U.S.C. § 2254(b)(1)(A) prohibits a federalcour

t fro m gra nting “[a]n application for a writ of habeas corpus on behalf of a person i n custody pursuant to the judgment of a [s]tate court ... unless . . . the applicant ha s exhau sted the r

emedies availab le in the c ourts 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 availab le procedure under state law. The proc edural d efault doctrine applies to bar

a feder al court ’s revie

w of a sta

te prisoner’s federalclaim where that prisoner failed to give the statecourts a “full and fair” opportunity to resolve that claim–as the exhaustion doctrine requires–and the prisoner cannot cure tha t failure because state-court remedies ar e no lo nger available. See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) ( holding that the procedural default doctrine preserves th e i nt eg ri ty of t he exhaustion doctrine, which “a prisoner could e vade . . . by ‘ letting t

he time ru

n’ on stat e remedies”); Coleman v. Thompson, 501 U.S. 722, 732 (1991) (holding that a “habeas petitione r who has

default ed his federalclaims in s tate court meets the technic al requi

rements for exhaustion

. . . [beca use] there are no st ate reme die s any longer ‘available’ to him,” and, t hus, t hat the procedural default doctrine prevents a hab ea s petitioner from circumventingthe policy underly ing the exhaustion doctr

ine).

Indeciding whether a petitioner p roced urally defa

ulted a federalclaim in state court, we must determine whether: 1) the petitioner failed to comply w i th an applic able sta

te proceduralrule; 2) t

he last state court rendering

judgment on the claim at issue, in fact, e nforce d the appl icable s tate proceduralrule so as to b ar t hat claim ; and 3) the state proceduralde fault is a

n adequa te and ind

epende nt state ground properly for

eclosingfed eral habeas review of the petitioner’s federa

l claim at is s ue. Seymour v. Walke r , 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

14 The dist

rict court an d petit ioner make muc h of the fac t t hat
respo nde nt, in an ex parte hearing bef ore the Michi gan t

ria l cou rt on petition er’s motion f

or reli ef f

rom judgment, argued t hat pet iti oner had present ed his Confr on tati on Clause cl aim to t he sta te court s on dire ct review, and that

the s tate courts had decided th at iss ue. Inhis br ief here, petit ioner contends t

hat the doc trine of ju dicial e stopp el shou ld op erate to bar respondent

from now as sert ing t

hat pet iti oner had not f

airl y presen ted his Co nfronta tion C lause c laim to th e state co urts on direc t review

. Howeve r, as d iscus sed below, the s upreme court denied peti tioner leave to ap pea l unde r M .C.R . 6

. 508(D)(3) on the gr ound that petit ioner had impro perly fai led to r aise h is Conf rontat ion Claus e clai m on direct review. Alterna tively, to the e xtent that p etit ioner su ggest s that
respo nde nt’s prior inconsistent po sition was “successf u l” bec ause the state tri al court

had re li ed upon i t i n deny ing peti ti on er’s motion, the act ual order denying that moti on does n ot support such a clai m. Att ached to t hat order is n ot the trans cript from th e ex parte hearing, but t he t rans cri pt from the subsequent hearing, i n which the tr ial courtexpress ly s tate d that it would add ress the c laim’s m erits. M oreo ver, p etitioner ’s brief concedes that the t rial court

did not fin d a procedural defaul t, but rathe r addresse d th e mer it s of

hi s Con fr ont ati on Cl aus e cl aim

. I n a ny even t, we no te that, in his ha bea s petition –an d on state Cir. 2000). If, pursuant to these standar ds, a pet iti oner pro cedura

lly defaulted his federal claim in state court, t h e petitioner must demonstrate either : 1) caus e for his failure to comply with the state procedural rule and actual pre judice flowing fromthe violation of federallaw alle ged in h is claim,

or 2) that a lack of federal

habeas review of theclaim’s merits “willresult in a

fundame

ntal misca

rriag e of ju stic e.” Coleman
, 501 U.S. a

t 750; see Murray v. Car rier , 477 U.S. 478, 496 ( 1986) (sp ecify

ing that a ‘fundamental misca rriage of justice’ will result “where a constitutional violation has probably resulted in the convicti on of one who is ac tually innocent”).

1. Direct Review

We find that, contrar

y to the distri c t cou rt’s conclusion, petitioner procedu rally default ed his Conf

rontation Clause claim by failing

to fairly prese

nt it to the Michigan

courts on direct review. 14 A petitione

r must fai rly present to the stat

eNo. 03-1124 Hicks v. Straub 23

collat eral revie w–petit ioner conce ded that he ha d no t raised his Confr ontation Clause claim on direct revi ew–that it was “disti nct from the general prosecut orial misco nduc t claim that ” petitioner broug ht on di rect review. In fact, petit ioner made t his cont enti on so as t o persuade t he tri al
court that t he state co urts had not pr eviou sly decid ed this c laim an d to prompt the trial co urt t o addre ss its merits. Moreo ver, petitioner also conceded to the distr ict court, regarding his pri or § 2254 p etiti on, that t he Confr ontation Claus e cl aim t hat it pr e sent ed had not

been ex haus ted on di rect revie w. Indeed, thi s repres entat ion prompted t he parti es to en te r into a st ipul ati on to di smis s t hat peti ti on so that petitioner could exhaust that claim. T hus, p etitio ner’s co ntention that the eq uities co mpe l us to
app ly the doctrine of jud icial e stopp el again st respo nde nt is not we lltaken. courts either the substance of or the substantial equivalent of the federa

l claim th at he is presenting to a federal habea s court. A petitioner fair

ly presents

a feder al habea s c laimto the state co

urts only if he “a sserted

both the factual and legal ba sis for his claim.” McMeans, 228 F.3d at 681. See a ls o Picard v. Connor
, 404 U.S. 270, 276, 277-78 (1971) (holding that petitioner’s challenge to the lega lity of the ind

ictme nt

was neit her the “substantial equivalent” of nor entailed the

same “ultim ate qu estion 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 dut y to consi d er whether that factual basis resulted in a equa l protection

violation). As this Courthas previously explained, the exhaustion doctrine requires the petitioner to present “the same cla imunder the

same the ory

” to the sta

te court s before raising it on federal habeas review. Pillette v . Foltz , 824 F.2d 494, 497 (6th Cir. 1987). In determining whe ther a petitioner “fairly presented” a

federa l constitut

ional cla im to the sta

te courts, we consider whethe r: 1) the petitioner phrased the federalclaim in terms of

the pertinent

constituti onal law or in terms sufficiently par

ticular to allege a denial

of the spec ific constitutional right

inquestion; 2) the petitioner relied upon federalcases e

mploy ing the c onstitutional analy sis in question; 3) the petitioner relied uponstate cases employ

ing the federa

l constitut

ional ana lys is in questi on; o r 4) the petitioner alleged “fa cts well within the mainstream of [the 24 Hicks v. Straub No. 03-1124

pertine nt] con sti tutional law.” McMeans, 228 F.3d at 681 (holding that “ [g]eneral allega tions of the

denial of rights to

a ‘fair trial’ and ‘due process’ do not ‘f airly prese

nt’ cl aims that specific constitutional rights were violated.”) Howe ver,
a petitioner need n ot cite “book and verse on the federal constitution.” Picard

, 404 U.S. at 278 (quotation marks and citations omitted).

Becau se his prosecutorial misconduct and Confrontation Clauseclaims rest upon the same factual predicate, petitioner, by pre se nting his prosecutorial misconduct claim on direct review, a lso prese

nted the f

actual b asis unde

rly ing his ConfrontationClause cl aim. Thus, the issue is wheth e r petitioner, on direct review, presented either the substance of

or the substantial equivalent of the leg al basi s for his Confrontation Clause claim. We find that he did not.

Petitioner refer enced the underl

yin g fact ual pred icate neither in terms relating to legal prece d ent on the Co nfrontationClause nor in terms of a spec ific viola

ti on o f his right to confrontation. See New t on v. Million , 349 F.3d 873, 877 (6thCir. 2003)(holding that petit

ioner fa irly presen ted his federal claim to the state courts where h e phrased his claim interms of the specific denial of a constitutional right–his right to due process of law under the Fif th and Fourtee

nth Amendmen

ts –and alleged the underly ing facts upon which that claim was based even tho u gh he cited

no cases employing fe deral constitutional analysis). No ta bl y, petitioner never mentioned

the terms confrontation or crossexamination

. Rather, petitioner argued only that the pr os ecutor’s openi ng stat ement amoun ted to the “ar gu[in g] facts not in evidence,” and that this instance of prosecutorial misconduc

t violated his constit

utional ri ght to a f

air tria l.

Inaddressing the underly

ing factual foundation

in his state court briefs, petitioner did not rely upon a ny feder al legal precedent analyzing

a claim under the Confrontation Clause, and on l y one ca se upon which he relied discussed theNo. 03-1124 Hicks v. Straub 25

15 Petit ioner cit ed Peo ple v. Dye , 427 N.W .2d 5 01 ( M ich. 19 88) , in arguing that the p rosec utor’s “belat ed atte mpt to produce .

. . Brand was hardl y a s ign of

good fa ith” and, thu s, that the prose cutor

was “un able to show due diligence in order to use

. . . [Brand’ s pre li minar y] e xamin ati on testimo ny.” In Dy e, the Michigan Supreme C ourt addressed t he subst ance of and purpose behi nd the Confr ontati on Clause; the court held, however, that a “trans cript o f prior te stimon y may[,] n everth eless[,] b e offere d in evidence upon a sho wing tha t the wit ness is unavai lable and that t he testi mony bear s satisfacto ry indicia of rel iabil ity .” 427 N.W.2d at 504-05 (relyi ng upon M .C.L. § 768.26, which permits the prosecut io n to use a prior witness’ testi mony from a preliminary examination, a deposi ti on, or

a for mer tria l wh ere t

he pros ecut ion c annot

produce that

witness at

trial ). As part o f his duty to e stablish th e witness ’ unava ilability, the M ic higa n Supr eme Court held t

hat t he prosecut or, at

the def endant’ s re- tri al, h ad not

us e d due dili gence in

att empting t o produce thre e wit nesses who had
test ifi ed against t

he defendant at his first trial and, thus, tha t t

rans cri pts of those witnesse s’ stateme nts in the fi rst tr ial were inadm issible. Id. at 506- 511

. ConfrontationClause. 15 Petitioner’s single reference to one

casedi scu ssing the Confrontation Clause–where that case, unlike here, in

volved the admission into evidenceof transcr ipts of the f

ormer witnesse s’ incriminatin g testimony –is insufficient to fairly pr esent a Confrontation Clauseclaim based upon the prosecutor’s opening statemen t, whi ch i s not evidence. See McMeans , 228 F.3d at 682 (holding t ha t, even though isolated state cases upon which petitioner relied c ontained

“a few brief re ferenc es t o the ConfrontationClause,” pet itio ner had not “fairly presented” his Con fron tation Clause claim to the state courts on direct review because, during that review process , petiti oner focused entirely o n the state’s rape shield law, failed to cite any federalpreced

ent, and s imply

argue d that the

trial judge’ s restriction

of his cross-ex a mination de nied him a

“fair tr ial” and “due process”).

While the district court found that the factual predicate that petitioner pres ented on direct review fell “well within the mainstream

of” Confrontation Clause precedent, we disag ree. Frazier v. Cupp
, 394 U.S. 731 (1969), best illustrates why we arrive at this con

clu sion . In Frazier, the Supreme Court 26 Hicks v. Straub No. 03-1124

considered

a habe a s petitioner’s claim that the prosecutor’s conduct violated his right to confrontation. Id. at 734. In that case, the prose cutor, du rin g his openin

g state ment,

summ arize d

the antic ipated te stimony of Rawls, a witness who had pleaded guilty

to the same offense for wh ich the petitio ne r was being tried. Id. at 733. The summary “ took only a few minutes to recite and was sandwiched be tween a summary of [the] pet

itio ner’s own confession and a descriptionof the c ircumsta ntial evid ence [tha t] the [s]tate would introduce.” Id. Thus, the prosecutor did not emph asize

that summary in a

ny particular way

. Id. Although, “[a]t one point[,] the prosecutor referred to a paper that he was holding in his hands to refre sh his memory about

so methi ng 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 mig

ht fairly have

believed that the prosecutor

was refer ring to Ra wls’ statement.” Id. Later, the prosec utor called Rawls to the stand. Id. However, the trial court soon d ismi ssed Rawls from the stand after Rawls informed the

court that he would invoke his privilege against selfincriminationas to every ques tion 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 Confr ontation Clause violations, the petitioner in Frazier

argued before the S upre me Court that “this series of even

ts pla ced the s

ubstance of Rawls’

s t atement before the jury

in a way that ‘ma

y well have be en the equivale

nt in the jur

y’ s min d of

testimony,’ and the statement ‘added substantial, perhaps even cr itical, w eight to the [g]overn

ment’s ca se in a form not subject to crossexamination.’” Id. (internal citations omitted). However, the Supreme Court distin

gu ished pet

itioner’ s case f

rom Bruton as f ollows: “[U]nlike the situation in Bruton , the jury was not being asked

to perform the mental gy

mnastics of considering

anincri m inating

statemen t again st only

one of tw o defend

ants ina joint trial.” Id. Here, unlike Bruton, but like Frazier, theNo. 03-1124 Hicks v. Straub 27

jury was not required, via the admission into evidence of a code fendant’s confession inculpating petitioner, to consider that incrimination against only tha t co-defendant.

The Frazier Court also distinguished Douglas as follow s:

In Douglas , the prosecutor called the defen dant’s coconspirator

to the stand and read his alleged confe ssion to him; the co conspira

tor was r equired to asser t his privi lege against self-incriminat io n repeatedly

as the prosecutor

asked him

to confir m or deny each sta tement. The Court fo und th at this pro cedure placed p owerfu

lly incriminating evidence before the jury in a manner which effec tively

denied the right of cross-examination. Here, Rawls was on the stand for a very sh or t t im e a nd on ly a paraphr ase of the statement was placed before the j ury

. This was done not during the trial, while the person making the statement was on the stand, but in an opening statemen t. In addition, the jury was told that the opening statement sho uld not be considered as evidence. Certainl y the impact of the procedure used here was much less damaging than was the ca se in Douglas.

Id. at 735 (italics added). He re, unlike in both Douglas and Frazier
, the relevant witness, Brand, was not a co-c onspirator who had inculpated petitioner while confessing to the crime. Inaddition, un li ke in both Douglas and Frazier , the prosecutor

did notcall Brand to the stand, and, thus, did not, by his questions, read either Brand’s e ntire preliminary examination te stimony nor portions of it into the record. Clearly then, unli ke in Douglas, Brand did not give credence to those que stions by

consiste ntly assertin g his F ift h Amendment privilege.

The Frazier Court concluded that the limiting instruction that the jury was not to regard cou nsels’ statements as evidence was sufficient to protect the petitioner’s constitutional rights. Id. 734-36 (n oting tha t, while “[a] more specific limiting instruction might have been desirab le, .

. . 28 Hicks v. Straub No. 03-1124

none was requested.”) The Court reas oned thatit is not remark able “to assume that the

jury will ordinarily

be able to limit its consideration to the evidence introduced during trial.” Id. at 736. The Court al so emphas ized, howe ver, tha t, “[a]t least whe re the a nticipate d, and unproduced , evidenc e is nottouted to the ju

ry 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 suc

h incidental statements during this long trial that the y w ould not appraise the evidence objectiv ely

and dispassionately.’” Id. (citations omitted). The court held that nothing that occurred during the prosecution’s opening stat e ment would warrant relief under the Confro n tation Clause. Id. at 736-37 (also finding that the prosecutor ’s good

fa it h i n e xp ec ti ng th e w it ne ss to te st if y, while not controll ing 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 pe ti ti on er ’s al le ge d c on fe ss io n i n a ny w ay no r “touted” that conf

ession as a cruci al part o f its case to th e ju ry. The op ening statem ent’s reference to petitioner’s purported confession lasted less than a minute. The reference

was “sand

wi ched” between summaries of the evidenc e that the government int en ded to pro duce, su ch as witnesses’ testimony identifying

petitioner and showing that he knew the victim. Moreover, unlike in Frazier , the prosecutor d id not appear to summarize Brand’s preliminary examination testimony in his statement, but, rather, referred to t h e purported confession generally . While the Supre me Court cautioned in Frazier

that “[i]t ma y be that some re marks i ncluded in an opening or closing statement cou ld be s o prejudicial that a finding of error, or even

constitutional error, would be unavoidable,” id. at 736, a comparison of the facts int h is case to those in Frazier reveal that this is not such a

case. The facts of petit ioner’s ca se here

are eve n less damaging than those in Frazier

where the S upr eme Court found no Confrontation Cla

use viola tion. Thus, as Frazier illustrate s, the princ iple that p etitioner claim s his factualNo. 03-1124 Hicks v. Straub 29

predica te invokes – “that a jury ma y not be told of a de fendant’s confession [during the prosecutor’s openin g statement ] unless the

witness to

that alle ged confession

is subject to cross- examination”– does not fall “well wit

hin the mainstream of” Confrontation Clause precedent.

Petitioner contends that his pr

osecutor ial miscon

duct cla im necessari ly

e ncompassed the “more serious” Confrontation Clauseviolation

. However, petitioner’s prosecutorial misconduct

and Confrontation

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

a pr osecutor ’s good

or bad fa

ith in expecting a witness t o testify is notcontrolling in determining whether a def endant’s right of confron tation, wa s violated , but findi ng that, because of the prosecutor’s good faith the re, no prosecutorial misconduct

claim could lie). Were we to hold that petitioner fa ir ly present ed his Conf

rontation Clause cl aim to the s tate courts on direct review, state c ourts w ould be compelled to consider sua sponte all poss ible fed eral legal claims

that a petitioner’s factua

l alleg ations mig

ht arguably support. The principle of comity underly

ing the exhau sti on doctrine does not permit us to force state courts to do so.

Becau se petitioner did not fairly pre sent his Confrontation Clauseclaim to the Michigan co urts on direct review, the statecourts, on such review, could not have actually

enforced any appli cable s tate p rocedu ral ru le aga inst th at claim. See Se ymour , 224 F.3d at 554-55. We now turn to w hether t h e statecourts en forced such a rule aga inst his Confrontation Clause claim on state collateral review.

2. State Collateral Review

Ina motion for

relief f rom judg ment unde

r M.C.R. 6.500, petitio ne r submitted to the state trial court on collateral review his Confrontation Clause cl aim along with his claims

o f ineffective assistance of trial and appellate co unse l

surr ounding their failure to identify and to raise t

h e Conf rontationClause issue, as such, at trial and on dire c t 30 Hicks v. Straub No. 03-1124

16 Bec ause the s tate tri al court , on coll ateralrevie w, deni ed petition er’s Co nfronta tion C lause c laim o n the m erits, petitio ner a lso fail ed to comply with M.C.R. 6.508(D )(2). Yet, by fin ding t hat pet iti oner pro ced urally def

aul tedhi s Con fr ont ati on Cl aus e cl aim unde r M.C. R. 6.508(D )(3), we nee d not and do no t decide wh ether petitioner also d id so unde r subse ction (2 ). review, respectively . As discu ssed above, the sta te trial court denied petitioner’s motion for reli ef from j udgmen

t. People

v. Hicks , No. 93-2188FC (Calhoun County Circuit Court Marc h 16, 2 000). Both the Michigan Court of Appeals and t he Mi chigan Supreme Court denied petitioner leave to appe al the trial court’s denial of his motion for relief from judgment

onthe 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 districtcourt he ld that petitioner f ailed to c omply

with only M.C.R. 6.508(D)(2) based upon its previous finding that petitioner had fairly pr

esented his Confrontation Clauseclaim to the state

courts on

direct r eview a nd, thus, that the sta

te courts had decided t

hat c laim against petitioner. Since we hav e c oncluded, as discussed above, that petitioner did not fairly present his Confrontation Cla

use clai m to the sta

te courts ondirect review, weconclude that petit ioner fa iled to comp ly with M.C.R. 6 .508(D) (3) whe n he did no t raise

hi s Confrontation Clause claim on direct review. 16

Indeny in g petitioner leave to appeal his motion for relief from judg ment under M.C.R. 6.508(D), the Michigan Supreme Court, the

last state court rende ring judgment on petitioner’s Confr onta tion Clause claim, actually enf orced M.C.R. 6.508(D)(3) againstpetitioner so as to bar its review of that claim. As Simpson v. Jones , 238 F.3d 399, 407 -0 8 (6th Cir. 2000), makes clear, the Michigan Supre me Court’s general invocati on of M.C.R. 6.508(D) in denying suc h leave constitutes an adequate, implicit invocation of th e specif ic pr o cedural bar of whichever subsection of M.C.R. 6.508(D) applies. See Burroughs v. Makowski , 282 F.3d 410, 413-14No. 03-1124 Hicks v. Straub 31

(6th Cir. 2002) (appl ying Simpson ). Bec ause M.C. R. 6.508(D)(3) was both firmly established and r e g ularly followed at the time of petitione r ’s righ t to direct appeal , it constitu t es an adequate and independent state proce dural ground properly for

eclosing federal habeas r eview of hi s ConfrontationClause claim. See Friedman v. Smith , No. 02- 1255, 2003 WL 22976586, at * 7 (6th Cir. Dec. 5, 20 03) ( finding that M.C.R. 6.508(D)(3), which the Michigan legislature promulg ated in 1989, has been regularly

followed since 1990). We find, therefore, that petitione r proce durally defaulted his Confrontation Clause claim on state collateral review.

Even though petition e r proce durally default ed his ConfrontationClauseclaim in st at e c ou rt , h e m ay, nevertheless, obtain

federal habeas review of the claim if he de monstra tes either: 1 ) cause for his fa ilure to c omply

with the state procedural rule and actual pre judice flowing from the violation of federallaw alleged in his claim, or 2) that a lack of fede ral habe as revie

w of the c laim’s me

rits “will result in

a fundamental miscarriage of justice.” Coleman , 501 U.S. at 750. Petitioner, pursuing

the forme r route only, contends that his ap pellat e counsel’s failure to raise his Confrontation Clauseclaim on direct review c onsti tuted ineffective assistance of counsel in violation of the Sixth Amendment and, thus , serves

as the re quisite ca

use to excu se his proceduraldefault under M.C.R. 6.508 (D)(3 ). As to the prejudice com po nent, pet itioner c ontends th at th e ConfrontationClaus e violation alleged in his claim was meritorious and would

have constituted reversible error.
Attorney error that rises to the l e vel of ineffective assistance of counsel in violation of the Sixth Amendment may constitute

cause f or a proc edural d

efault

. Murray, 477 U.S. at 488-89 . To estab lis h t hat counsel’s assistance was ineffective, the petitioner

must demonstrate that: 1) counsel’s performancewas deficient in that it “fell below an

objective standard of reas onablene ss”; and 2) this deficient performance actua lly p

rejudic ed him in tha

t there is

a 32 Hicks v. Straub No. 03-1124

17 Petit ioner did notproc edur ally de fa ul t h is cl aim o f in effecti ve

as sist ance of appe llate counsel. State collateral review w as the first
opp ortun ity that

petit ioner had t o rai se t hi s cl aim

. In den ying pe titioner’s motio n for re lief from j udgm ent, the s tate tri al court decided petition er’s inef fect ive- assi stance -of- appellat e-couns el claim against p etitioner –alb eit without any reasoning. Thus, when t he Michigan Supr eme Court deni ed petit ioner lea ve t o appe al thi s denial under M.C.R. 6.508(D), it wa s implic itly invoking only s ubsection (2) w ith respe ct to pe titioner’s ineffective -assistanc e-of-ap pellate -coun sel claim

. However, as the d istr ict court corre ctl y f

ound, M.C.R. 6. 508(D)(2) does not co nstitute a state pro ced ural gro und th at i s adeq uate t o bar federal habe as revie w. 28 U.S .C. § 2254( b)(1) prohibits a federal court from granting habea s reli ef to a state prisoner on a federal claim unless that priso ner ha s exha usted all availab le rem edies in state cour t w ith

re spect to that cla im. T hus, a fed eral co urt ma y not justly find that a prisoner pro ced urally de faulted his fede ral claim simply b y virtue of receiving an adverse judgment on tha t claim w hile attempting to exha ust it in state court. Such a d octrinal Catch-2 2 would effectively foreclose fe de ral habe as relief. Ind eed , state priso ners ca nnot p ursue p ostconvi cti on relief in fe deral co urt for fed eral cla ims for w hich the state court alread y grante d suc h relief. In add ition, as § 225 4(d) illustrates, AEDPA contemplat es feder al habeas revie w foll owing an adverse stat ecourt a djud ica ti on on th e mer it s of a st ate pri son er’ s f

eder al cla im. reasona ble probability that, but for cou nsel’s deficient performance, the proc eeding ’s result would hav e been different. Strickland , 466 U.S. at 687-88, 694.
Here, petitio ner ha s failed t o establish that his a

ppellate counsel’s failure to ra is e a Confrontation Clause claim on direct review c onstituted

ineffe ctiv e assistance under Strickland so as to s er ve as cause to excuse his procedural default of that claim. Even as sumi ng arguendo that appe llate counsel’s failure to ra ise a Confrontation Clause claim on direct review was objectively

unreasonableso as to constitute deficient performance, 17 petitioner has failed to demonstr ate that this failure actually

prejudiced him. Appellate counsel’s failu re to raise the Confrontation Clause claim on direct review could only have pre

judiced petitioner if there were a

rea sonab le probabil ity t

hat couns el’s pur suit of tha t claim would have resulted in a succes sful appeal. McFarland v.No. 03-1124 Hicks v. Straub 33

18 We examine the meri ts of petition er’s Co nfronta tion C lause c laim only to de termin e if

a ppellate counsel was unconsti tutional ly inef fective forfail ing to rais e it on directrev iew. See McFarland , 356 F. 3d at 701 n.3. Yukins
, 356 F.3d 6 88, 699 (6 th Cir. 2004 ); see W illiams v

. Taylor
, 529 U.S. 362, 392-93 ( 2000 ) (holding that, where counsel’s ineffective assistance did not deprive the petitioner “of an y s ubstantive or procedural right to which the law entitled him,” the

petiti one r c an no t s at is fy Strickland ’s “prejudice” component).

Petit ioner contends that ther e is a re asonable

probabil ity that, but for a

ppellate counsel’ s fail

ur e to raise a ConfrontationClause cl aim on dire ct revie w, that cl aim

wo uld have prevail ed and re sulted in a revers al of his conviction. In support, he relies up on Frazier v. Cupp , 394 U.S. 731 (1969), Bruton v. United States
, 391 U. S. 123 (1968), Douglas v. Alab am a , 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 o f a witness’ prelimina

ry examination testi m ony inculpating the petitioner viola ted h is right of confrontation where that witnessdid not testify

at trial a nd where the petiti oner did

not have a “c omplete a

nd adequ ate oppor tunity to cross- examin e ” that witness thr ough co unsel a t the preliminar y examination). 18 However, a s dis cussed a bove, this

case materia lly differs from Bruton, Douglas, and Pointer

. Petitioner’s reliance on Frazier is misplaced because the prosecu toria l c onduct in t

he prese nt case i s even le ss objectionab le than in Frazier . Thus, pe titioner has faile d to demonstr ate that there is a reasonable probability that, but for appella te counsel’s failure to raise a C onfronta tion Clause claim on direct

review, that claim would have prevailed and resulted in a reversal of his conviction. Cons eque nt ly, appella te counsel’s failure to raise a Confront a tion Clause 34 Hicks v. Straub No. 03-1124

19 Petit ioner has also fai led to show the req uisite prejudice to ex cuse his pro ced ural de fault of his C onfro ntation C lause c laim. Because he has
not establish ed a C onfro ntation C lause vio lati on in t he fi rst inst ance, petiti oner, thus, cannot es tablish t hat he suff

ered actual prejudice fl owing from such a violatio n. claim on direct review

cannot serve as cause for petitioner’s procedu ral def ault of tha

t claim. 19

For the p re ceding reasons, we REVERSE the district court’s grant of a writ of habeas cor p us to petitioner and remand to the district court wi th in struction to dismiss the petition f or the wr it.No. 03-1124 Hicks v. Straub 35

_________________ CONCURRENCE

_________________ ROGERS, J. , co ncu rri ng. I concur i n the res ult and in muchof the majority’s opinion. It is not suffic iently clear to me, however, that on collateral review the Michigan Supreme Courtrelied upon MCR 6.508(D)(3), where such an infer ence relies en ti re ly u p on our after-the-fact determination that (D)(3) rather

than (D)(2) was theappropr iate pro vision to re ly upon. In Burroughs , in contrast, it was “undisputed that Burrou gh s fai led to pro

perly present his arg uments for state appella te review.” 282 F.3d. at 413. However, for the

reasons given in t

he majority’s discussion of Douglas, Burton, and Frazier , petitioner has not ade qu ately shown a viol ati onof the Con frontati on Clause under ap

plicable Supreme C ourt pre cedents

.