NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0385n.06 No. 08-1353 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

GERMAI N SKI NNER, Petitioner - Appellant,

v. BA RRY MCL EMORE, Respondent - Appe llee.

__________________________________ ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

OP INION

Be fore : BA TCHEL DER, Chief J udg e, and D AUGHT REY, Circuit J udg e; and

VAN TA TENHOV E, District J udg e. *

V A N TA TE N HOVE , District J udg e. Following a jury trial, Ger main Skinner w a s c o n v ic te d of first deg ree criminal sexual conduct, second deg ree criminal conduct, and first deg ree home invasion. He pursued a direc t a ppeal and post-conviction relief to no avail. Skinner then soug ht a writ of habe as cor

pus, which the district court denied on the m erits. Be cause Skinner’s cla ims do lack mer it, we AF FI RM. I. During the ear ly morning hours of Aug ust 6, 1 9 9 8 , Skinner broke into a home, sexually assaulted an eleve n-y ear -old g irl in her bedroom, and then esca ped throug h her bedroom window.

T h e Ho n o rable Gre g ory F. Van Tatenhove , United States District J udg e for the Eastern * District of Ke ntucky , sitti ng by desig nation.The victim provided a detailed description of her assailant and later identified Skinner as the man who assaulted he r. Skinner’s DN A was a lso found on the victim’s comforte r. I n 2001, a Gene see County , Michig an jury convicted Skinner of first deg ree criminal sexual conduct (CSC-I ), second deg ree criminal sexual conduct (CSC-I I ), and first deg ree home invasion. He was sentenc ed to forty to six ty y ear s imprisonment on the CSC -I conviction, a term of fiftee n to thirty y ear s imprisonment on the CSC -I I conviction, and a term of twenty to forty y ear s imprisonment on the home invasion conviction, all to be ser ved conc urre ntly

. Skinner, throug h counsel, appea le d a s o f r ig ht to the Michig an Court of Appea ls, raising three
separ ate claims: (1) his trial counsel was ineff ec t ive for failing to move for a mistrial; (2) the assistant prosec utor w a s r e q u ir e d to d is q

u a lif y himself; and (3) the prosec utor committed misconduct by denig rating defe nse counsel in arg uments befor e the jury

. The appellate court, finding no merit
to Skinner’s claims, aff

irmed his conviction and sentenc e. See People v. Skinner , No. 236876, 2003 WL 2271778 (Mich. Ct. App. Nov. 13, 2003) (per curia m). Procee ding pro se , Skinner soug ht leave
to a ppeal those three issues to the Michig an Supreme Court. He also raised two issues for the first time. Skinner arg ued that: (1) the prosec utor violated his Fifth Amendment rig hts by i m p ro p er l y commenting on Skinner’s failure to explain wher e he was at the time of the crime; and (2) his rig ht
to a fair trial was denied by the prosec utor’s invasion of attorney -work product and false comment

on that work-pr oduct. The Mi ch i gan S u preme Court denied Skinner’s application for leave to
appea l, stating that it was “not persua ded that the ques t i o n s prese nted should be revie wed by this Court.” See P eople v . Skinner , 470 Mich. 884, 682 N.W.2d 95 (2004). Skinner then filed a post-conviction motion for relie f from judgme nt. I n that collater al attack, Skinner raised, among other claims, a differ ent set of prosec utorial misconduct claims. On

-2-Fe bruar

y 9, 2005, the trial court denied Skinner’s motion for relief from judgme nt. The court

co n cl u d ed that the claims wer e barr ed by MCR 6.508(D)( 2) beca use they had been raised and 1 denied in his direc t appea l. The Michig an Court of Appea ls and the Michig an Supreme Court denied Skinner’s applications for leave to appea l. Both of those denials wer e contained in standard order s, based on Skinner’s “fa ilure to meet the burden of establishing entitlement to re l ief under MCR 6.508(D).” People v. Skinner , 474 Mich. 1093, 711 N.W.2d 57 (2006); People v. Skinner , No. 262165 (Mich. Ct. App. Oct. 21, 2005). Skinner subsequently filed a petition for a writ of habeas corpus o n M ay 25, 2006, raising the same claims that he asser ted in his post-conviction motion for relief from judgme nt. Adopting the re commendation of the mag istrate judge , the district court denie d the petition for habe as re lief

on the m erits. The district court, howeve r, i ssued a cer tificate of appea lability as t o the foll owing claims: the pr o s e c u to r im

p r o p e r ly a r g ued fac ts not in evidenc e; and the prosec utor unconstitutionally ref err ed to Skinner’s fa ilure to testify

. II. A. The Respondent did not addre ss the merits of Skinner’s claims. I nstead, he arg ues, as he did below, that Skinner proce durally defa ulted on the claims in his habea s petition beca use the last court
to consider those issues invoked a proce dural bar to deny re v i ew . T hus, acc ording to the Respondent, fe dera l reviewof Skinner’s c laims is barred by proce dural de fault.

As discussed more fully later in this opinion, the trial court’s ref ere nce to MCR 6.508(D)( 2) 1 appea rs to be in err or, at least as it rela tes to his curr ent prosec utorial misconduct claims which wer e clea rly not presente d in his direct appe al. -3-I n his reply , Skinner arg ues that beca use the Respondent did n o t c r o s s - a p peal from the district court, he has essentially waived his rig ht to raise a proce dural defa ult arg ument. But the Respondent, havi n g p revailed in the district court, is now the appellee

. Whil e appellants who do not raise an arg ument on appea l waive that arg ument, the same is not true for appellee s. Kennedy v. City of Villa Hills , 635 F.3d 210, 214 n.2 ( 6 Cir. 2011) (citing Leary v. Daeschne r , 228 F.3d 729, 741 n.7 ( 6 t h t h Cir. 2000)). This court can aff irm the district court on any basis supported by the rec ord, see id. , and we do not re quire a

ppellees to file c ross-appe als mere ly to arg ue in fa vor of suc h aff irmance

. Gene rally , this court may not revie w claims t h at wer e not substantively decide d by state courts because only claims adjudicate d on the m erits i n state court proce eding s ar e co gnizable on h ab ea s revie w. See Lancaster v. Adams , 324 F.3d 423, 436 (6 Cir. 2003). “When a habeas t h petitioner fa ils to obt ain consider ation of a c laim by a state c ourt . . . due to a state proc edura l rule that preve nts the state courts from rea ching the mer i t s o f the petitioner’s claim, that claim is
proce durally defa

ulted and may not be considere d by the fede ral court on habea s revie w.” W illis v. Smith , 351 F.3d 741, 744 (6 Cir. 2003) (interna l quotation marks omitted). I n other words, a habea s t h petitioner proce durally defa ults a claim if: (1) the petitioner fails to comply with a state proce dural rule; (2) the state courts enfor ce the rule; (3) the state proce dural rule is an adequate and independe nt
state g round for deny ing revie w of a fede ral constitutional claim; and (4) the petitioner cannot show

cause and prejudice excusing the defa ult. Guilmette v. Howes , 624 F.3d 286, 290 (6 Cir. 2010) (en t h banc) (citations omitted). I n this case , Skinner failed to comply with a state proce dural rule. He di d not prese nt his

curr ent prosec utorial misconduct claims in his appea l as of rig ht to the Michig an Court of Appea ls. I nstead, he fi rs t at tempted to raise these claims in his motion for leave to appea l to the Michig an

-4-Supreme Court. Such an attempt, howeve r, is insufficient to exhaust those claims for pur poses of habea s revie w. The g ener al rule in the fede ral habea s context is that the submissi on of new claims
to a state’s highe st court on discretionar y revie w does not c onstitut e fair prese ntation of the claims
to the state courts. Castil le v. Peoples , 489 U.S. 346, 349 (1989); see Granger v. Hurt , 215 F. App’x 485, 491 (6 Cir. 2007) (a habea s petitioner does not comply with the exhaustion require ment when

t h he fa ils to raise a c laim in the state court of appea ls, but raises it for the f irst time on discretionary
appea l to the state’s highe st court). Moreove r, Skinner’s failure to proper ly prese nt these claims to the state appellate court on direc t a ppeal subjected him to application of MCR 6.508(D) (3), which provides that a Michig an state court “may not g rant relief to the defe ndant if the motion

. . . alleg es gro u n d s for relief

, other than jurisdictional defe cts, which could have been raised on [di rec t ]
appea l.” 2
We must next consider whether the state courts actua lly enfor ced the proce dural rule, and we do that by looking to the last state court that rende red a judgme nt on the claim at issue. Simpson v. Jones , 238 F.3d 399, 406 (6 Cir. 2000). More specific ally , for purposes of proce dural defa ult, the t h “state judgme nt” with which this court is conce rned is “the last explained state court judgm en t .” Munson v. Kapture , 384 F.3d 310, 314 (6 Cir. 2004) (empha sis in orig inal) (quoting Y lst v. t h Nunnemanke r , 501 U.S. 797, 803 (1991)), cert. de nied , 544 U.S. 1002 (2005).

Michig an Court Rule 6.508 g overns motions for relief from judgme nt and provides that the 2 movant “bea

rs the burden of establishing entitlement to relief .” MCR 6.508(D). The rule also sets forth three proce dural situations in which relief will not be g rante d: (1) wher e an appea l rela ting to the conviction is pending ; (2) wher e the claim has alre ady been ruled upon in a prior appea l or postconviction motion; and (3) wher e the claim could have been raised in a prior appea l or postconviction motion but was not. See MCR 6.508(D)(1)- (3). -5-The last state court t o re v i ew Skinner’s claims was the Michig an Supreme Court, which

considere d Skinner’s final appea l of his motion for relief from judgme nt. That court’s order states, in its entirety : “On order of the Court, the application for leave to appea l the October 21, 2005 order of the Court of Appea ls is considere d, and it is DENI ED, beca use the de fenda

nt ha s failed to me et the burde n of establishing entitlement to relief under MCR 6.508(D).” Skinner , 474 Mich. 1093. The impact of such g ener ic ref ere nces to MCR 6.508(D), rathe r than a specific subsection of that rule, was the subject of much debate within this circ uit. Compare Simpson , 238 F.3d at 408 (holding that state court judgme nt citing on l y MCR 6.508(D) was “not unexplained”), and Burroughs v. Makowski , 282 F.3d 410, 414 (6 Cir. 2002) (following Simpson and finding ref ere nce to M C R t h 6.508(D) as explained order sufficie nt to invoke proce dural bar) , with Abela v. Martin , 380 F.3d 915, 923 (6 Cir. 2004) (direc ting courts to look throug h g ener ic ref ere nces to MCR 6.508(D) to “the last t h

rea soned state court judgme nt”), and Alexande r v. Smith , 311 F. App’x 875, 883 (6 Cir. 2009) (per t h curia m) (conc luding that Abela conflicts with the holding s in Simpson and Burroughs ). That debate , howeve r, has been settled with our en banc opinion in Guilmette

. That decision 3

n o w m akes clea

r that “[b] rief order s citing MCR 6.508(D) are not explained order s invoking a proce dural bar.” Id. at 288. Consequently , we must look past such order s “to the last rea soned state
court opinion to deter

mine the basis for the state court’s reje ction” of a petitioner’s claim. Id. at 291. Her e, both the Michig an Supreme Court and Court of Appea ls denied Skinner’s claims with brief order s citing only M C R 6.508(D). When we look throug h those unexplained order s, as Guilmette require s, we do not find a single ruling on the merits. I nstead, the trial court here

I n fac t, we delay ed finalizing this opinion rec og nizi ng that the full court had ag ree d to take 3 up the issue of whether order s ref ere ncing only MCR 6.508(D) wer e explained judgme nts sufficie nt to invoke a proc edura l bar. -6-conclude d t hat Skinner’s claims wer e barr ed by MCR 6.508(D)( 2) beca use he had alre ady raised them on direc t appea l. Rule 6. 5 0 8 (D )( 2) is a collater al estoppel rule which prohibits a trial court from reconsider ing a cl aim alre ady decide d ag ainst a defenda nt on direc t appea l. The application of such a rule ty

pically does not bar fede ral habea s revie w. See Hicks v. Straub , 377 F.3d 538, 558 n.17 (6 Cir. 2004), cert. denied , 544 U.S. 928 (2005); see also Cone v. Bell , 556 U.S. - - -, - - -, 129

t h S. Ct. 1769, 1781 (2009) (“When a state court declines to r eview the merits of a petitioner’s claim

on the g round that it has done so alre ady , it cre ates no bar to fe d er al h ab eas revie w.”)

. But its invocation on these f

acts is er roneous. The rec ord establishes that Skinn er failed to prese nt his curr ent prosec utorial misconduct claims to the Michig an Court of Appea ls in his direc t appea l. He first attempted to raise them in his motion for leave to appea l to the Michig an Supreme Cour t

. Be ca u s e the state supreme court d e c li ned to enter

tain his appea l, Skinner’s claims wer e not proper ly prese nted to th e M ic h ig a n c o u r ts

. Thus, while MCR 6.508(D)( 2) would apply to any claims that Skinner raised both i n h i s direc t
appea l and his motion for relief from judgme nt, that rule simply cannot apply to his curr ent claims. Rule 6.508(D)( 3), on the other hand, clea rly applies. That rule bars consideration of claims, like Skinner’s, which could have been prese nted on direc t appea l but wer e not. Had the trial court instead cited MCR 6.508(D)( 3), that proce dural bar would prec lude fede ral habea s revie w ab s ent Skinner’s demonstra ting c ause and prejudice

. See MCR 6.508(D) (3)( a)- (b). Ye t neither the me re availability nor the potential, or even obvious, applicability of such a rule is deter minative. T o opera te as a bar to habea s revie w, such a rule must be clea rly and expressly invoked. Harris v. Ree d , 489 U.S. 255, 263 (1989) (“a procedur al default does not bar considera tion o f a fe d er al claim .

. . unless the l as t s tate court rende ring judgme nt in the case clearly and expre ssly states that its

-7-judgme nt r ests on a state proce dural bar” ) (empha sis added) ; see also Bowling v. Parker , 344 F.3d

487, 498 (6 Cir. 2003) (“there must be unambiguous st ate- court reliance on a p ro ce dural default

t h for it to block our re v i ew ”) (citing Gall v. Parker , 231 F.3d 265, 321 (6 Cir. 2000)). And the t h Michig an co u rts simply did not invoke that rule in deny ing Skinner’s claims. Be cause the state
courts did not clea

rly and expressly rely on a proce dural bar to deny Skinner’s claims, those claims

are not pr ocedur ally

defa ulted. We must, there fore , consider the merits of Skinner’s prosec utorial misconduct claims. B. The district court g rante d Skinner a cer tificate of appea lability on two of his claims, both of which alleg e prosec utorial misconduct. Skinner conte n d s t h at the prosec ution made improper
comments at sever al points during the trial. Acc ording to Skinner, the prosec utor improperly arg ued fac ts not in evidenc e and unconstitutionally ref err ed to Skinner’s failure to testify

. These instances of misconduct, Skinner a

rg ues, violated his due pr ocess r ights a nd entitle him to habeas re lief. 1. Skinner contends that the prosec utor improperly arg ued fac ts not in evidenc e. His challeng e

r e lates to comments the prosec utor made reg arding DNA testing perf ormed on five sa

mp le s c o ll e c te d from stains on the victim’s comforte r. Prior to trial, Skinner soug ht to have an independe nt lab, L ab Corp., test Samples 2, 3, an d 4 , which had been collected by the pol ice. Those samples belong ed
to a donor with blood ty

pe A and there fore did not match Skinner. Samples 1 and 5, howeve r, came from a ty pe B donor an d we re matched to Skinner throug h DNA testing perf ormed by the State Police. The S tate P olice did not orig inally provide S ample 5 to L ab C orp., and L ab C orp. di d not initially test Sample 1.

-8-The trial court approve d a pretria l stipulation and order ed the State Police to provide Sample

5 to L ab Corp. I n conjunction with tha t stipulation, defe nse counsel further soug ht to prec lude the
prosec utor from ref

ere ncing any testing, or lack of testing, on Sample 5 during the trial. [Trial Tr., Vol. I , at 4-5.] The prosec utor responde d that he had no intention of exploring this issue so long as d efense counsel did not do any thing “surpr ising” at trial. [ Id. at 8.] And the trial court held t h at “[t] here should be no ref

ere nce to any defe nse analy sis of any sample five or any other sample.” [ Id.
at 18.] But despite the trial court’s evidentiar y ruling , the prosec utor did mention the lack of testing on Sample 5 during closing arg ument. Ex plaining tha t Samples 2, 3, and 4 wer e unimportant, the
prosec utor arg ued: Five and one are th e o n es we’ re say ing that’s his, that’s the defe ndant’s, that’s the one we’ re say ing is the defe ndant’s DNA on there

. Def ense, y ou’ve g ot the samples, y ou want to independ ently test it, y ou want to challeng e our beliefs that five and one’s the defe ndant Ger

main Skinner, here y ou have, g o at it. And they are g iven to the defe nse lab. L ab Corp has all five stains. But there ’s been no evidenc e prese nted by any lab, by any

body that five and one are differ ent than what w[e] say it is. I n fac t L ab Corp produce s – ah – g ives no evidenc e of what their results of one and five are . Shhh, they ’re not telling. Their letter only speaks to two, th re e, four. Use y our common sense, ever

y day experience

. We’re say ing it’s five and one. They have five and one independe nt analy sis available for ‘em and they ’re on ly g onna talk about two, three and four . Folks under stand what I ’m say ing? [Trial Tr ., Vol. VI , at 224.] During his r ebuttal arg ument, the prosec utor continued on this theme : M o re o v er , want to talk about defe nse talking about DNA testing. Def ense said, “Well, we had one throug h – they acknow ledg e they had one throug h five – stains one throug h five available for testing. Now, if I ’ve hear d Mr. Whit esman corr ectly , he said, “We tested two, t h re e an d four beca use there wer e the ones we wer e interested in.” Well, two, three and four wer e t he ones that wer e not his g uy , they wer e the kid that lived in the househ o l d

. . . . But he’s sa – But I hear d Mr. Whit esman say

it’s two, three and four we’ re inter ested in, but one a nd five, whic h matched the defe ndant? I f I understand corr ectly , he’s not say ing he’s interested in testing that. One and I ’ve [si c], w e’r e say ing matched the defe ndant. Her e y ou g o, independe nt analy sis. You g ot a p ro b l em wi t h it, g o test it. And if I hear d him say ing, “ We were n’t intereste d in testing that.” Now, I don’t know wha t L ab Corp

-9-d i d wi th samples one and five, but we do know they put no results into evide n ce ,

which mea

ns they did one or two things, e ither they didn’t test, which def

ies log ic, why they – M R

. W HI TESMAN: I ’ve – I have g ot to object, okay , I ’ve g ot to o b j ec t

. Now, there’s no evidenc e wi t h reg ard to this – to L ab C orp t est[ing] one and five. I just said – W e’ve – We’ve be en throug h that. THE COURT: There is no evidenc e what was done, if any thing, with respe ct to one and f

ive. Now, we ’ve be en over that – MR. BERKMAN: And I just said that. THE COURT: – about 30 times. Okay . Thank y ou. MR. BERKMAN : And that’s my point. They ’re not putting in any evidenc e [on] one and five, which means one of t wo t h i n g s. Either they didn’t test one and five, which to me defies logic t h at we’ve got t he samples say ing it’s y our guy , Mr. Whit esman, if y ou’ve g ot a problem with our conclusions or our analy sis, g o test it, and they did n ’t t es t i t , one possibili ty ; or they tested one and five and they ’re not disclosing the results. But it’s one or the other. Either y ou tested it or y ou didn’t test it. Okay

. You see what I ’m say ing? He had one and five. They matched the client. We’re say ing they matched the defe ndant. They wer e available for testing. And they wer e provided for testing and the raw materia l, the raw comforte r was provided for the testing . And L ab Corp is silent on the results for one and five

. MR. W HI TESMAN: I ’m g onna objec t. J udg e, there are no results for one and five – THE COURT: Yes, it’s cor rec t – MR. W HI TESMAN: – ‘ca use one a nd five we re not tested. THE COURT: – Thank y ou. We have hear d that. Now, I ’ve – I ag ree with y ou. [ Id. at 316-18.] On habea s revie w, “the rele vant question is whether the prosec utor’s comments so infec ted the trial with unf

airne ss a s to make the conviction a denial of due proc ess.” Lundgren v. Mitchell , 440 F.3d 754, 778 (6 Cir. 2006) (quotation omitted). And we employ a two-step inquiry to evalua te t h

-10-claims of prosec utorial misconduct. United States v. Henry , 545 F.3d 367, 376 (6 Cir. 2008). We t h first deter mine whether the statements wer e improper. Id. Next, we ask whether the rema rks wer e

so flag rant as to warra n t re versa l. Id. And, under that second prong , we consider four separ ate fac tors: (1) the de g ree to which the conduc t or rema rks tended to mislead the jury or pre judice the defe ndan t ; (2 ) whether they wer e isolated or extensive; (3) whether they wer e delibera tely or

acc identally put befor e the jury ; and (4) the overa ll stre ng th of the evidenc e ag ainst the defe ndant. United States v. Franc is , 170 F.3d 546, 549 ( 6 Cir. 1999). t h The firs t q uestion is whether the prosec utor’s comments wer e improper. Acc ording to Skinner, they wer e improper beca use the prosec utor arg ued fac ts which wer e not in evidenc e. The

crux of his claim is that while there was no evidenc e in the rec ord that L ab Corp. ever tested Sample 1 or 5, the prosec utor implied that the defe nse did analy ze Samples 1 and 5 and that the results wer e adver se to Skinner. We have held that “[s] tatements by a prose cutor in closing arg ument are not proper if they bring to the attention of the jury fac ts not in evidenc e.” United States v. Emuegbunam , 268 F.3d 377, 404 (6 Cir. 2001). But that is not what occur red here

. The prosec utor did not expli citly arg ue that t h the defe nse actua lly tested Samples 1 and 5. I nstead, he noted that the defe nse had acc ess to all five

s t ai n s b u t ch o se to only test Samples 2, 3, and 4 and thus had no evidenc e to dispute t h e prosec ution’s test results. The prosec utor specific ally ag ree d that no test results had been produce d by L ab Corp. for Samples 1 and 5. He did sug g est that the jury could infer one of two things – either

no testing was perf

ormed on Samples 1 and 5, or that test had been conducte d and the results wer e adver se to Skinner. But the court, upon defe nse counsel’s objection, immediately corr ecte d that

-11-statement, not ing tha t “[ t ] h er e i s no evidenc e what was done, if any thing, with respe ct t o one and five.” [Trial Tr., Vol. VI , at 316.] To be sure, these comments skirted the boundarie s of proper arg ument. Yet we do not deem them improper arg uments on fac ts not in evidenc e. Rather, at worst, th e p ro s ec u t or may have violated t he spi rit, if not the letter, of the court’s e videntiary ruling

. Such a viol ation, howeve r, i s
not cog nizable on habea s revie w. See Estelle v. McG uire , 502 U.S. 60, 67-68 (1991) (“Toda y , we 4

ree mphasize t h at it is not the province of a fede ral habea s court to ree x amine state-c ourt deter minations on state-law questio n s . ”)

. Reg ardle ss, we simply cannot conclude that these
statements so i n fe cted the trial with unfairne ss as to make Skinner’s conviction a denial of due
proce ss. 2. Skinner also claims t hat t he prosecutor viol ated his Due Process rig hts by commenting on Skinner’s failure t o testify

. Skinner points to the foll owing statem en t s m ad e by the prosecutor as constitutionally

impermissible:

• “He has no acc ounts for his wher eabouts during that time in the morning

. He’ s last s–And–And Mr. Whitesman talks about distance, he ’s 4.1 miles awa y .” [Trial Tr., Vol. VI , at 340.]

• “Oka

y . Wit hin ten minutes awa y , definitely not halfwa

y acr oss G e nesee County , said 4.1 miles awa

y , this defe ndant, who’s–ah–be en outside of the house, he’s been g one during this time period, he had left at 2 :30, wher eabouts unaccounte d for, happens to match the de scription g iven by L aura Wil liams, who happens to pick him out of this very g ood lineup, who also happens to leave semen at the stain [si c] that matches

I n h i s h abeas petition, Skinner prese nted a separ ate claim arg uing that the prosec utor 4 violated the court’s evidentiar y ruling

. The district court disposed of that claim for the same rea son that we do. Skinner v. McLem ore , 551 F. Supp. 2d at 645. And the district c ourt declined to issue a ce rtificate of appe alability for that issue. -12-him dire ctly , DNA for DNA, his blood ag ainst the semen in the comforte r, DNA to DNA, all 13 loci compar ison matching h i m , n o t j ust in one stains [si c], but two separ ate stains, tested a

nd analy zed separately .” [ Id. at 340-341.]

• “L adies and g entlemen, use y our common sense–Oh, and that same defe ndant, who is out at that time, and his wher eabouts unknown except for the person who saw him. That per son who saw him is L aura Wil liams.” [ Id. at 344.]

• “[F]or two hours [defense counsel] talked, but he never explained why a g irl–an 11- y ear -old g irl, who the def endant’ s a complete strang er to, she de scribes him to a T, wh o h appens to have his semen on her comforter

. Neve r heard an explana t i o n fo r that beca use the explanation for it is that man, the d ef en d ant rig ht there , put that semen on that c omforter

when he ejac ulated into L aura Wil liams’ mouth.” [ Id. at 315.] We do not ag ree with Skinner’s char acte rization of the comments. Rather, we conclude that the prosec utor commented on the implausibil ity of the defe nse theory and lack of evidenc e to support i t , an d d i d n ot comment on Skinner’s failure t o testify

. Be cause the prosecutor’s comments were within the bounds of proper arg ument, Skinner’s cla im to the contrary must fail. III. For the fore g oing r easons, we AFF I RM the denial of Skinner’ s habea s petition.

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