NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0153n.06 No. 09-6537 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT LON S. WALKER, P etitioner - Appellant,

v. JIM MORR OW, Warden, Respondent-Appellee. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE MIDDLE DISTRICT OF TENNESS EE

BEFORE: MARTIN, CLAY , and WH ITE, Circuit Jud ges . CLAY, Circuit Judge. Petitioner L on S. Walker, a state prisoner in Tenne ssee, appea ls an

o rd er d eny ing his petition for writ of habea s corpus pursuant to 28 U.S.C. § 2254, in which h e challeng ed his conviction for second- deg ree mu r d er. For the rea sons set forth below, we REVERSE the district court’s or der. STATE MENT OF F ACTS I. F actual Background J ames “Howa

rd” Harp and two cohorts, Stacey Patzer and Walker, wer e all highly intox icated when Howar d was shot on Saturday , October 14, 1995. That morning , Howar d and his brother, J err

y , visited a mobile home belong ing to Walker, with whom the Har p brothers had beenNo. 09-6537

acqua inted for roug hly one mont h. The three men beg an drinking and, af ter they exhausted their 1 supply of alcohol, drove to the adjac ent county to buy more. On the way back, they stopped and picked up Walker’s friend, Patzer. At the time, Patzer’s husband was detained by local authorities

awa iting trial. She descr ibed Walker as her “drinking budd[y ].” (Pet’r App. 216.) Walker provided Patzer minor financ ial support while her husband was in custody , but Patzer denied t h at s h e was romantica lly

involved with Walker. J err y , Howar d, Walker, and Patzer returne d to Walker’s trailer and beg an an afte rnoon and evening of hea

vy drinking and socia liz ing. Jerry descr ibed Patzer and How ard a s “pre tty well l it” by the evening

. (

Id. 176.) Patzer beg an t o fl irt with Howar d and J err y . Howar d flirted back. Walker g riped to J err

y about Patzer’s flirting, expressing frustra tion that Patzer flirted with J err y and Howar d even though W alker provided P atzer financial s upport. At some point, Walker and J err y retre ated into J err

y ’s bedroom. Th er e, W al k er showed J err y the .38-caliber revolver he kept near his bed. At some other point in the afte rnoon, Walker walked to his neig hbor’s trailer car ry ing a rum and Coke. Walker told his neig hbor that he might need help in “kicking this g uy ’s ass.” ( Id. 179.) Around 7:30 p.m., J err

y drove Patzer back to her trailer so Patzer could chec k on her dog s. J err y eventua lly returne d to Walker’s trailer with Pa t z er . J err y soon left for the rema inder of the evening , leaving Howar d, Walker, and Patzer at Walker’s trailer. Patzer told investiga ting office rs that Howar d used the revolve r to play Russian Roulette at some point during the evening , though she later e x plained that she did not per sonally see H owar d play

ing the g ame.

The Court ref

ers to J err

y and Howar d Har

p by thei r fi rs t n ames, in order to avoid any 1 confusion fr om a re fer ence to “Har p.” 2No. 09-6537

Around 9:00 p.m., Walker’s friend, Eric Christensen, visited Walker’s trailer. Christensen testified that Howar d and Patzer wer e extremely intox icated , wh i l e Walker was only mildly intox icated. During Christensen’s visit, Patzer called her mother and beg an cry ing. Howar d hug g ed h er during the call. Walker verbally threa tened Howard and g estured at him with a clen ch ed fi s t , appar ently upset that Howar d interrupted Patzer’s phone call. Before leaving at 10:00 p.m., Christensen saw Howar d and Walker shake hands, though Christensen could not rec all wh ether Howar d and Walker shook ha nds befor e or a fter the confr ontation. Around 10:50 p.m., Patzer, Howar d, and Walker wer e talkin g wh i l e s t anding at the bar dividing Walker’s kitchen and living room. Howar d and Patzer stood three fee t apar t on the living

room side of the bar, and Walker stood on the kitchen side. At 10:51 p.m., the revolve r fired a shot vertica lly from the side of Howar d’s head throug h his temple. Patzer imm ed i at el y ca l led 911 in hy sterics. Walker hungup the phone. Patzer asked Walker if he a nd Howar d wer e play

ing a joke

on her. Walker explained to Patzer that Howar d was dead and that he would “take car e of it.” ( Id. 242.) The 911 opera tor ca l l ed t he trailer back, and Patzer, who had moved into the trailer’ s bathroom, spoke with the opera tor. Walker was in his trailer alone during the period Patzer was in the bathroom speaking with the 9 1 1 o p er at or. During her 911 call, Patzer repe atedly told the opera tor Howa

rd shot himself. When office rs arr ived at Walker’s trailer, Walker was waiting in the drivewa y and told office rs that Howar d had shot himself. Offic er J ames L ane descr ibed Walker’s demea nor as calm. When of fice rs enter ed the tra iler to proce ss the scene , they found Walker’ s revolve r in his kitchen sink underne ath a cup. The revolve r contained one spent round and five live rounds. I nvestig ators

3No. 09-6537

also found water puddles around the sink. I n a conver sation with office rs, Walker denied ever having seen the revolve r and asser ted that he was in the bathro o m wh en Howar d shot himself. Walker later admitted owning the revolve r and explaine d t h at h e d en ied owner ship out of fea r of being blamed for

letting a n intox icated H owar d come into possession of a g un. Patzer told sever al individuals sh o rtly afte r the incident that Howar d shot himself. Patzer spent the first night afte r the incident with J ohn and Wil lie Be nnis. Acc ording to the Be nnises’ trial testimonies, Patzer told them Howar d shot himself when Patzer ref used his sexual advanc es and that

s h e d i d not think the revolve r was loaded. Patzer also submitt ed a written statement to polic e attesting that Howar d shot himself. Patzer’s acc ount chang ed two day s afte r the shooting. After a two- or three -hour discussion with Office r L ane on Monda y , October

16, Patzer told poli ce tha t Walker shot Howar d. At trial, Patzer rea dily admitted that she told office rs, the 911 opera tor , and others that Howar d shot himself. After sobering up and speaking with police, Patzer explained, the events

re t u rn ed to her memory in “bits and piece s.” ( Id. 325.) She testified that Walker actua l l y s h o t Howar d. By her acc ount, while the three individuals we re gat here d around Walker’s counter , Walker made a sudden motion and, the next thing she knew, Walker held the revolve r and Howar d lay at her fee t. Patzer explained that she was so drunk du ri n g and after the incident t hat s he could
not rec all for almost two day s how Howar d was shot. She further explained that s ev era l fac tors contributed to her persistence i n asser ting that Howar d shot himself in the day s afte r t he incident: the hy steria and confusion she suffe red in the moments afte r the shooting; her desire to believe that

4No. 09-6537

Howar d shot himself; the copious amounts o f al co h o l she drank befor e and the day afte r the shooting; and he r fe ar of

Walker, who she sa id kept her ne arby him in the day s after

the shooting. Thus, the jury hear d testimony from Patzer stating that Walker shot Howar d, as well as

sever al of her prior inconsistent s t at em en t s stating that Howar d shot himself. The court admitted
most of these prior inconsistent statements—including statements Patzer made to police at Walker’s trailer shortly afte r the shooting, her written statement to police, and statements to her husband and friends—solely for impeachme nt purposes. Howeve r, the judge admitted Patzer’s statements to the 911 opera tor asser ting that Howar d shot himself as excited utteranc es, admissible to prove the truth of the matter

asser ted under Tenne ssee Rule of E vidence 803(2). I n his defe nse, Walker offe red evidenc e that Howar d was sever ely depre ssed and had acte d

on his suicidal fee lings on sever al occa si ons. Be tween the ag es of 15 and 23, Howar d attempted suicide six times. J err

y testified that, on the morning of the incident, Howar d said he was g oing to kill himself. J err

y further testified that his brother spoke espec ially often and intensely about suicide wh en he was intox icated. Two of Howar d’s s uicide attempts occur red when he was int ox i ca t ed

. Howar d’s bl ood alcohol content was .40% when he was shot, which, a ccor ding to the doc tor who perf ormed Howar d’s autopsy , was an alcohol content level at which fifty perc ent of the population would die. Walker also offe red testimony to further his contention that Patzer chang ed her story in order
t o obtain favor able trea tment for her husband. During her discussion with police reg ardi n g Howar d’s death, Patzer asked police if they could rele ase her husband from pretria l detention. Also,

acc ording to J ohn and Wil lie Be nnis, Patzer ang ere d Wil lie Be nnis on the night of the shooting afte r

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Patzer told B ennis she would tell Offic er J ames L ane “any thing I have to to g et my husband out of jail.” ( Id. 82. See id. 101.) After the close of evidenc e, the parties made closing statements. During the g overnme nt’s closing statement, the assistant district attorney s g ener al made five statements that Walker contends

wer e improper. Def

ense cou n sel did not object to any of these statements. First, investiga tors testified that they found a spot of blood one-e ighth of an inch in diameter on Walker’s shirt, though the serolog ist off

ere d no opinion a

bout the source of the blood or the leng th of time it had been on Walker’s shirt. I n her closing statement, the lead prosec utor claimed the spot w as the “splatter” of Howar d Har

p’s blood. (

Id. 366.) Walker contends the statement misrepre sented t h e ev i d en ce of

rec ord. Second, investiga tors swabbe d Walker’s and Patzer’s hands for g u n s h o t r e s id

u e r o u g hly twoand-a -half hours afte r the shooting. Howar d’s hands wer e swabbe d roug hly twenty -three hours afte r the shooting. The residue tests found no residue on Walker’s or Patzer’s hands and residue in an inconclusive amount on Howar d’s hands. The g unshot residue expert testified that the tests did not al low him to offe r a sound conclusion about who fired the revolve r. I n her closing st at em en t , howeve r, the lead prosec utor s t at ed t h at the test disclosed a small amount of g unshot residue on Walker’s ha

nds. Thir d , th e le a d p r osecutor claimed Walker knew about Howar d’s history of attempted suicide
at the t i m e o f the shooting; Walker claims the statement lacke d supporting evidenc e. Four th, the lead pr osecutor describe d Walker as “ver y cunning ” and “ very

hear tless” and lac king in r emorse. ( Id. 367.) Finally , the assisting prosec utor claimed the police office rs who serve d as the lead

6No. 09-6537

witnesses aga inst Howard would not have investiga ted the shooting if Howa rd’s de ath had been a suicide. I n his closing argum en t , defe nse counsel explained that the jury could consider Patzer’s
statements to the 911 opera tor as proof that Howar d shot himself. Specifica lly , he explained that an excited utteranc e was presumed reliable beca use it occur

red contempora

neousl y wi th a startling
event and was th erefore unlikely to be the product of fabr ication and ref lection. Counsel further noted that Patzer’s statements to the 911 ope rator w ere excited utteranc es. The court’s char g e to the jury contra dict ed counsel’s statements. The court instructed the jury that it could use Patzer’s prior inconsistent statements only to impeach her testimony ; the judge did not instruct the jury that it could con s i der Patzer’s statements to the 911 opera tor as excited
utteranc es admissible to prove the truth of the matter asser ted. Def ense counsel did not object to the court’s instruction and did not seek a clar ify ing instruction. At the state post-conviction evidentiar y hear ing, the court stated that the instruction was err oneous and that counsel was defic ient by failing to object to the instruction. The court conclude d, howeve r, that Walker wa s not prejudiced by the

err or. II. P roce dural Hi story Walker appea led his conviction and, in 1999, the T ennessee Court of Criminal Appea ls aff irmed the jury ’s verdic t. State v. W alker , No. 01C01-9711-CR-00535, 1999 WL 219629 (Tenn. Crim. App. Apr. 16, 1999). The Tenne ssee Supre me Court denied Walker permission to appea l. Walker moved for state post-conviction relief , raising sever al ineffe ctive assistance claims. The state post-conviction court ruled that an objection from counsel reg arding the jury instructions

7No. 09-6537

was unlikely

to lead to another

outcome and tha t defe nse counsel was not de ficient in de clining to object to the prosec utors’ comments during the state’s closing statement. Walker appea led the same issues to the Tenne ssee Court of Criminal Appea ls, which denied him relief i n 2 0 0 2

. W alker v. State , No. M2001-01090-CCA-R3-PC, 2002 WL 31520654 (Tenn. Crim. App. Nov. 13, 2002). The appea ls court conclude d that any defic iencies in the cour t’ s in s tr u c ti o n s r e g a

r d in g Pa tz er’ s statements did not prejudice Walker . The Te nnessee Supreme Court denie d Walker per mission t o appea l. Walker timely filed a pro s e petition for a writ of habea s corpus on September 4, 2003, raising the ineffe ctive assistance claims he raises here

. After appointing Walker counsel, the district
court denied Walker’s reque st for an evidentiar y hear ing and denied his petition. W alker v. Lewis , No. 2:03-00096, 2009 WL 4827429 slip op. (M.D. Tenn. Dec

. 14, 2009). The district court cer tified Walker’s claims of ineffe ctive assistance of counsel for appea l. Walker timely appea led the district court’s or der. DISCUSSIO N I. Stand ard of Review On appea l of a denial of a petition for a writ of habea s corpus, we revie w the district court’s conclusions of law de novo and its fa ctual finding s for clea r err or. Lovell v. Duffey , 629 F.3d 587, 593–94 (6th Cir. 2011). The Court acc epts the state court’s deter mination of a fac tual issue unless the petitioner upsets that de termination by clea r and convincing evidenc e. Moss v. Hofbaue r , 286 F.3d 851, 858–59 ( 6th Cir. 2002) (citing 28 U.S.C. § 2254(e)(1) ).

8No. 09-6537

II. Legal F ram ework 1. Antiter rorism and E ff ect ive Deat h Pe nalty Act ( “AEDP A”) As amende d by

the Antiterror ism and Effe ctive De ath Penalty Act (“A EDPA”), 28 U.S.C. § 2254(d) allows us to g rant a writ of habea s corpus to a state prisoner only if the state court’s adjudication of his claim “(1) resulted in a decision that was contra ry to, or involved an unrea sonable application of, clear ly established Feder al l aw, as deter mined by the Supreme Court of the United States; or (2) resulted in a deter mination that was based on an unrea sonable deter min at i o n o f the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding .” 28 U.S.C. § 2254(d). A decision is “‘c ontrar y t o ’ clea rly established fede ral law if ‘the state court arr ives at a conclusion opposite to tha t r eac hed by the Supreme Court on a question of law or if the state court decide d a case differ ently than the Supreme Court on a set of ma terially indisti ng uishable fa cts.’” Lundgren v. Mitchell , 440 F.3d 754, 762 (6th Cir. 2006) (quoting W illiams v. Taylor , 529 U.S. 362, 413 (2000)) (interna l quotation marks and alter ations omitt ed). A state court decision i s based on “a n unrea sonable application” of clea rly established fede ral law if “the state court identifies t h e

corr ect g overning leg al principle but unrea sonably applies that principle to the fac ts of the prisoner’ s

case .” Id. at 763 (quo t i n g W i l l i a ms , 529 U.S. at 413). “Clear ly established federa l law” refe rs t o “the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the rele vant state-c ourt decision.” Id

. (citing W illiams v. Bagley , 380 F.3d 932, 942 (6th Cir. 2004)) (in t er n al quotations omit ted). AEDPA’s limitations permit this Court to awa rd a petitioner relief

only if the state c ourt’s application of fede ral law is “objec tively unrea sonable,” rathe r t h an s i m p ly incorre ct. Goodell v.

9No. 09-6537

W illiams , 643 F.3d 490, 495 (6th Cir. 2011) (quoting W illiams , 529 U.S. at 409). To conclude that

a state court’s application of fede ral law wa s u n re as o n able, we must decide that “ther e is no possibili ty fai rminded jurists could disag ree that the state court’s decision conflicts with [t he Supreme] Court’s prec edents.” Harrington v. Richter , 131 S. Ct. 770, 786 (2011). Under this inquiry , the Court must first explain “wha t arg ument s o r t h eo ri es supported or . . . could have supported, the state court’s decision.” Id. Then, the Court must decide whether “fa irminded jurists could disag ree that those arg uments or theories are inconsistent with the holding in a prior decision of [ the S upreme ] Court.” Id. Only if there is no basis for disagr eeme nt among fairminded jurists can the court a

war d relief

. Id. And, as the Supre me Court has explained, “[e]valuating w hether a rule application [by a state appellate court] was unrea sonable require s considering the rule’s specific ity

. The more g ener al the rule, the more leewa y courts have in rea ching outcomes in case -by

case deter minations.” Harrington, 1 3 1 S. Ct. at 786 (quoting Y arborough v. Alvarado , 541 U.S. 652, 664 (2004))

. I n spite of t hese lim itati o n s , t he S upreme Court has emphasiz ed that AEDPA “stops short of i m p o s ing a complete bar on fede ral court relitig ation of claims alre ady reje cted in state proce eding s.” Id

. Rather, fede ral habea s revie w continues to serve the important role of “g uard[ing] ag ainst ext reme malfunctions in the state c riminal justice sy stems.” Id. (citation omitted). Under AEDPA, t h e C o u rt examines the last state-c ourt decision on the merits. Garcia v. Andrews , 488 F.3d 370, 374 (6th Cir. 2007)

. The Court r eviews the state court’s deter mination of mix ed questions of law and fac t unde r the “unre asonable application” element of AEDPA. Railey v. W ebb , 540 F.3d 393, 397 ( 6th Cir. 2008).

10No. 09-6537

2. P roce dural Defau lt A fede ral court deter

mining whether a petitioner has defa ulted a claim must decide whether “(1) a state proce dural rule exis ts that applies to the petitioner’s claim, (2) th e p et i t i o ner failed to comply with the rule, (3) t h e s t at e court actua lly applied the state rule in reje cting the petit ioner’s claim, and (4) the state proce dural rule is an adequate and independe nt g round upon which the state can rely to deny re l i ef

. ” T hompson v. Bell , 580 F.3d 423, 437 (6th Cir. 2009) (quoting Frazier v. Huffman , 343 F.3d 780, 790 (6th Cir. 2003) ). I n order for defa ult to bar fede ral revie w of a claim, the last state court providing a rea soned opinion must “cle arly and expressly state[] that its judgme nt rests on a state proce dural bar.” Frazier , 343 F.3d at 791 (quoting Harris v. Ree d , 489 U.S. 255, 263 (1989))

. A claim is not defa ulted wher e t h e state court does not expressly reje ct the claim on the proce dural basis, even if the petitioner’s claim violates a state’s proce dural rul e. Thompson , 580 F.3d at 437. Alterna tively , even if the state court fails to reje ct a claim on a proce dural basis, a claim is in defa ult wher e the petiti oner fails to raise the claim in state court and pursue it throug h state appellate revie w. Id. ; see Deitz v. Money , 391 F.3d 804, 808 (6th Cir. 2004) (“A fede ral court is also barr ed from hear ing issues that could have been raised in the state courts, but wer e not.”), abrogated on other grounds by Stone v . Moore , 644 F.3d 342 ( 6th Cir. 2011). 3. Ineff

ect ive Assistance of Counsel A defe ndant is not vindicated in his Six th Amendment rig ht to counsel if “counse l’s conduct

so undermined the proper functioning of the adver sarial proce ss that the trial cannot be relied on as having produce d a just result.” Strickland v. W ashington , 466 U.S. 668, 686 (1984). Thus, to preva il

on an ineffe ctive assistance of counsel claim, a petitioner “must demonstrate that counsel’s

11No. 09-6537

repr esenta tion fell below an objective standard of rea son ablene ss and that the [petit ioner] was prejudice d by the ineffe ctive assistance of counsel.” Ca r ter v. Bell , 218 F.3d 581, 591 (6th Cir. 2000) (c iting Strickland , 466 U.S. at 687). Represe ntation is defic ient under Strickland when coun s el m akes an err or “so serious t hat counsel was not f

unctioning as the ‘counse l’ g uara nteed the defe ndant by the Six th A mendment.” Id. (quoting Strickland , 466 U.S. at 687). To satisfy the prejudice element of Strickland , a petitioner must prove that “ther e is a re asonable probability that, but for counse l’s unprofe ssional error s, the result of the proce eding would have been differ ent.” Lundgren , 440 F.3d at 770 (quoting Strickland , 466 U.S. at 694). The Supreme Court define s a “re asonable probability ” as “a probability sufficie nt to undermine c onfidenc e in the outcome.” Strickland , 466 U.S. at 694. I n addition to allotting the state court the level of defe renc e AEDPA require s, the Supreme Court require s a reviewing court to g ive the state c ourt furthe r def ere nce when analy

zing t he st ate court’s application of a g ener al, amorphous rule of const i t u tional law. The Strickland standard is “h i gh l y d ef

ere ntial.” Harrington , 131 S.Ct

. at 788. The Supreme Court require s that AEDPA revie w of a Strickland claim be even more defe rential. Henc e, if a fede ral court believes a state court

was incorre ct in de ciding a petitioner’s Strickland claim, it may only g rant relief afte r deter mining that no rea sonable a

rg ument supports the state cour t’s dispositi on. Id. III. F ailure to Object to Jury Instructions A. Deficient P erform ance The trial court admitted numerous statements from Patzer indicating that Howar d committed suicide, including statements from her 911 call, her written statement to police, and statements she

12No. 09-6537

made to John a

nd Wil lie Be nnis. A mong those statements, the cour t a dmitted Patzer’s statements to the 911 opera tor as excited utteranc es “made while the decla rant was under th e s tress of excitement cause d by [ a s t ar t l i n g] event or condition.” Tenn. R. Evid. 803(2). Thus, under Tenne ssee law, the jury was permitted to consider Patzer’s 911 statements for the truth of the matter they asser

ted. See State v. Barrett , No. W1999-02002-CCA-R3-CD, 2000 WL 1840 0 7 3 , at * 6 (Tenn. Crim. App. Dec

. 12, 2000). Nonethele ss, the trial court only instructed the jurors that prior inconsistent s tatements could be used to impeach Patzer. The court later admitted that the instruction

was e rrone ous and that def ense c ounsel should have objec ted. We ag ree . There is no rea son to believe counsel’s failure to objec t fl o we d from sound strateg ic considerations. W alker ’s ce ntral strate g y aimed to demonstrate both that Patzer’s r evised re count of the shooting was untrustworthy and that h er i n i t i al acc ount was true. His pref err ed outcome would have had the jury believe Patzer’s statements to the 911 opera tor and, there fore , conclude that Ho ward shot himself. The foundation of hi s strateg y was the admission of P atzer’s stateme n t s t o the 911 opera tor as excited utteranc es. Those statements wer e invaluable as evidenc e in support of Walker’s theory

. Tenne ssee law ty pically allows a court to admit a prior inconsistent statement for the purpose of impeachme nt only , on the premise that a ty pical prior incons i stent statement lacks suffici en t i n d i ci a of reliability to serve as substantive evidenc e. See Tenn. R. Evid. 806; State v. Stackhouse , No. E2010-01972-CCA-R3-CD, 2011 WL 5620925, slip op. at *10 (Tenn. Crim. App. Nov. 18, 2011). As excited ut t erance s admitted to prove that Howar d shot himself, howeve r, the admission of Patzer’s 911 statements relied on the presumption that Patzer’s o b s er v ati on of the shooting “produc e[d] a condition of excitement which temporar ily still [ed] the capa city of ref lection

13No. 09-6537

and produce [d] utteranc es fre e of conscious fabr ication.” State v. Ramos , 3 31 S.W .3d 408, 415 (Tenn. Ct. App. 2010) (quoting State v. Land , 34 S.W .3d 516, 528 (Tenn. Crim. App. 2000) ). To the end of persua ding the jury to re l y o n Patzer’s statements as substantive evidenc e, counsel’s closi n g s t at ement emphasized the inconsistencies in Patzer’s acc ount and reminded the jury that
statements she made shortly afte r the shooting wer e excited utteranc es fre e of conscious fabr ication and, ther efor e, we re de pendable evidenc e tending to show Howar d shot himself. I n light of this stra teg y , it wa s self-de fea ting for counsel not to object to the judg e’s f ailure
to instruct the jury that it co u l d re l y o n any excited utteranc es as substantive evidenc e. After providing the jury the evidentiar y tools with which it could find that Howar d shot himself, counsel did no t o b

j ec t to the court’s instruction taking those tools from the jury , thus rende ring “mea ningle ss” his defe nse based on the truth of Patzer’s 911 statements. Lucas v. O’De a , 179 F.3d 412, 419 (6th Cir. 1999). There is simply no rea son that counsel would labor to prop up his defe nse with an arg ument reg arding the evidentiar y nature of Patzer’s statements, only to have the court knock it down. The failure to object was the result of acc ident, inattention, or mistaken judgme nt. Respondent minimi zes counse l ’s err or by descr ibing the court’s instructions as mere ly “incomplete” rathe r than incorre ct. (Resp. Br

. 19.) Be cause most of the court’s instruction corr ectly explained the law g overning prior inconsistent statements, this arg ument seems to run, the instruction was substantially correc t an d an objection was unncessa ry . The distinction the g overnme nt offe rs is pa tently unpersua sive. Whether the instruction is descr ibed as incomplete or incorre ct, it barr ed the jury from using Pat z er ’s 911 statements as evidenc e in support of the proposition that Howar d shot himself. Given the centr al importa n ce o f t he permissible use of

14No. 09-6537

Patzer’s excited utter ance s to Walker ’s strateg y , no fairminded jurist could arg ue counsel’s failure
to object wa s n o t d eficient. Even the trial judge admitted in post-conviction proce eding s that counsel’s failure to object was err or on counsel’s part. Henc e, it is clea r to us that counsel perf

ormed below an objective standard of rea sonablene ss by failing t o object to the court’s omission of the instruction. B. P rej udi ce There is a rea sonable probability that counsel’ s o b j ection to the trial court’s instructions would have chang ed the outcome of Walker’s trial. See L u n d gren , 440 F.3d at 770 (citing Strickland , 466 U.S. at 6 9 4 ). Patzer’s 911 statements wer e centr al to Walker' s trial. As the post-conviction court explained, “[a ]l most ever y witness talked about the fac t that Stac[] y Patzer had previously said the victim committed suicide.” (Pet’r App. 445.) A proper instruction would have permitted the jury to use all the evidenc e prese nted at trial, for any purpose for which it was proper ly prese nted. That evidenc e included Patzer’s statements to the 911 opera tor. Those statements wer e not trifling evidenc e. Rather, under Tenne ssee law, they supported the proposition that Walker shot himself. But the jury was not permitted to consider the full rang e of evidenc e prese nted at trial. The omission of any instruction on the evidentiar y value of Patzer’s excited utteranc es require d the jury
to trea t those utteranc es identica lly to the my riad other statements that impeache d Patzer. By prohibiting a cer

tain use of Patzer’s statements—the use most probative of Walker’s innocenc e, to be sure —the cour

t effe ctively

excluded strong evidenc e in fa vor of Walker

. The state court applied Strickland unrea sonably by concluding otherwise. The Tenne ssee Court of Criminal Appea ls ignor ed the distinction betwee n a ty pical prior inconsistent statement and

15No. 09-6537

an ex cited utt era

nce. I t lumped toge ther a ll of Patz er’ s prior inconsistent statements and assumed that they all had the same evidentiar y value. That assumption is incorre ct. Collapsing the distinction betwee n these two ty

pes of inconsist e n t s ta

te me n ts u n ju s ti f iably minimi zes the differ ent weig hts they

car ry , and, specific ally , the potential weig ht Patzer’s excited utteranc es car ried in Walker’s defe nse. The post-conviction appellate court also understate d the wei gh t o f t he court’s instructions in g uiding the jury ’s delibera tion. By trea ting all of Patzer’s prior inconsistent statements the same, the state court assumed that an instruction from the court would have made no differ ence in the j u ry ’s delibera tion. That assumption is incorre ct as well. The arg ument that the jury could hav e believed Patzer’s 911 statements beca use the jury hear d them in court underc uts the very conce pt of providing a court’s limit ing instructions. An instruction on the evidentiar y purpose of Patzer’s excited utteranc es would have allowed the jury to distinguish those statements from Patzer’s other statements, even her other statements implicating Howar d in the shooting. See United States v. L a yne , 192 F.3d 556, 573 (6th Cir. 1999). Had the judge so instructed the jury , we wo u l d h av e “pre sume[d] [j ury instructions] to have been eff ective unless there is an ‘over whelming probability ’ that they wer e ignor ed.” Scott v. Mitchell , 209 F.3d 854, 879 (6th Cir. 2000) (quoting Richardson

v. Marsh , 481 U.S. 200, 208 (1987)) ; see, e.g. , Hall v. Vasbinder , 563 F.3d 222, 239 (6th Cir. 2009); Bey v. Bagley , 500 F.3d 514, 522 (6th Cir. 2007). Since the court did not instruct the jury reg arding Patzer’s 911 statements, we adher e to the corollar y propositio n : i n the absenc e of an instruction reg arding excited utteranc es, we presume the jury trea ted Patzer’s 911 statements as it was instructed to treat Patzer’s other

inconsistent statements.

16No. 09-6537

Predictably , Respondent contends that the state court corr ectly conclude d the weig ht of the evidenc e implicating Walker overcame any defic iency in the j udg e' s instruction. The e vidence of Petitioner’s g uilt was, h o weve r, hardly overw helming. The rec ord contains ample evidenc e to support the contention that Howar d shot himself. Ho wa rd ’s history included the expression of suicidal fee lings and sever al suicide attempts. The very morning of the shooting, he told his brother that he planned to kill himself. Howar d beca me more suicidal when he was intox icated, and Howar d

was extremely intox icated on the night of the shooting. J err y explained that Howar d beca me suicidal when he drank beca

use he felt no one car ed for him or loved him, and Patzer had rebuf fed Howar d’s

sex u al advanc es prior to the shooting. And, of course , there was also evidenc e of Walker’s innocenc e in the form of Patzer’s panicke d statements to the 911 opera tor that Howar d committed suicide. Moreove r, wh i l e t here was evidenc e sug g esting that Walker shot Howar d, much of that evidenc e was inconclusive. The state’s strong est evidenc e was Patzer’s testimony that Walker shot Howar d, but the jury

was we ll awa

re of the inconsistency

in Patz er’ s story . J err

y and Christensen testified t hat W alker beca me angr y when Patz er flirted with J err y and Howard on th e n i gh t of t he

s h ooting, but Christensen also saw the two men shake hands at another time. Walker asked his neig hbor, Be njamin J ohnson, to “bac k him up” in case Walker had to “kick this g uy ’s ass,” though J ohnson testified that Walker did not specify to whom he was ref err ing. Moreove r, Walker had no

more than a small spot of blood on his shirt, which, even as s u m i n g t h e blood was Howar d’s, is hardly supportive of the arg ument that Walker place d a g un to Howar d’s temple and fired. A g unshot residue expert’s test of the residue on Walker’s hands roug hly two hours afte r the shooting

17No. 09-6537

returne d inconclusive. The same test on Howar d’s hands y ielded more evidenc e of residue than did Walker’s ha

nds, even though Walker’s hands wer e tested sooner afte r the shooting . Additionally , while W alker acte d suspiciously in the t ime afte r t he shoot ing, his behavi o r i s co n s i stent with his contention that he lied beca use he was afr aid of being blamed for allowing an intox icated Howar d
to possess the gun. Finally , and per haps most importantly , the charg e aga inst Walker gre w out of

an uncorr oborate d event witnessed by three highly intox icated individuals. Thus, while the jury may have returne d a g uilty verdic t if proper ly instructed on Patzer’s excited utter ance s, that outcome is hardly bey ond doubt, to say

the least. 2 Thu s , b y fa i l i n g to acc ount for the forc e of the judge ’s instructions upon the jury , and by failing to consider the eff ect of the court’s incorre ct instruction upon the t o t al m i x of evidenc e implicating Walker , the state c ourt unrea sonably applied fe dera l law.

The circ umstantial nature of the evidenc e ag ainst Walker, coupled with the highly probative 2 nature of Patzer’s 911 statements, place this case on differ ent footing than Berghuis v. Thompkins , 130 S. Ct. 2250, 2264–65 (2010), in which the Sup re m e C o u rt reve rsed this Court’s decision g ranting the writ. There , an associate of the defe ndant, wh o h ad b ee n t ri ed and acquitted of the shooting for which the defe ndant was char g ed, testified that the defe ndant committed the shooting. Id. at 2257. We g rante d the writ partly on the g round that defe nse counsel failed to object when the judge did not instruct the jury not to use the associate ’s testimony as proof of the defe ndant’s g uilt. Id. at 2259. I n reve rsing this Court’s decision, t he S upreme Court re l i ed in part upon its decision that counsel' s objection would not have led the jury to acquit the defe ndant “in light of all the other evidenc e of g uilt.” Id. at 2265. As we have explained, the evidenc e that Walker shot Howar d was much wea ker than the evidenc e of the defe ndant’s g u i lt in Berghuis , wher e a surviving victim identified the defe ndant as the shooter, the defe ndant’s friend testified that the defe ndant confe ssed to the shooting, a

nd other e vidence corr oborate d the def endant’ s g uilt. 18No. 09-6537

IV. F ailure to Object to Im proper Closing Statem ents A. P roce dural Defau lt Among the sub-claims of Walker’s ineffe ctiv e a s s is ta n c e c la im, he contends that counsel was ineffe ctive by failing to object when the prosec utors imp r o p e r ly claimed Walker knew about Howar d Har p’s history

of suicide a

ttempts and improperly

bolstered Of

fice r James L ane’ s testimony . The district court conc luded Walker de faulted the se sub-c laims. That conclusion wa s incorre ct. No state court denied either of these sub-claims on a proce dural basis. On post-conviction appea l, the Tenne ssee Court of Criminal Appe als noted that Walker c halleng ed counse l’s conduct of failing “to object to cer tain rema rks, questions or infere nces made b y t h e S tate

. . . in closing arg uments.” W

alker , 2002 WL 31520654, at *10. The court then considere d the claim and denied it on the merits. See id. at *11–12. Henc e, i n re j ec t i ng this portion of Walker’s ineffe ctive assistance claim, the Tenne ssee Court of Criminal Appea ls’ “dec ision was clea rly based on its view of the merits of Petitioner’s claim under fede ral law” rathe r than Walker’s failure to comply with a state proce dural rule. Haliym v. Mitch el l , 4 9 2 F.3d 680, 693 (6th Cir. 2007); see Thompson , 580 F.3d a t 437. Walker raised these sub-claims in his habea s petition, clea rly fashioning them as parts of an ineffe ctive assistance claim. I n response to Walker’s petition, Respondent did not arg ue that Walker defa ulted either sub-claim. Rather, he arg ued that the state appea ls court’s denial of Walker’s ineffe ctive assistance claim was not contra ry to established Supreme Court prec edent. Respondent

o n ly a r g ued Walker was barr ed from raising the independe nt prosec utorial misconduct cl a im s a r is in g fr o m t h e alleg edly improper statements of counsel involved here

. There fore , Respondent waiv ed

19No. 09-6537

this defe nse by failing to raise it befor e the district court. Matthews v. Parker , 651 F.3d 489, 498–99 (6th Cir. 2011); W

hite v. Mitchell , 431 F.3d 517, 524 (6th Cir. 2005). Any arg ument t h at W al k er d efa ulted these sub-claims would have never theless failed, since the state court reje cted th e s u b

claims on the merits. See Thompson , 580 F.3d a t 437. The district court rea d the state appea ls court’s g ener alized acc ount of Walker’s ineffe ctive

ass i s t an ce claims to mean that Walker failed to raise these sub-claims in state post-conviction proce eding s. W

alker , 2009 W L 4 827429, slip op. at *29–31. This rea ding was incorre ct, p ar t i cu larly g iven Respondent’s decision not to arg ue in front of the district court that Walker’ s claim was de faulted. Fur thermore , the di strict court did not consider this claim as one for i n ef fective assistance of counsel. Rather, the district court incorre ctly trea ted Walker’s ineffe ctive assistance claim as an independe nt prosec utorial misconduct claim, befor e concluding that Walker defa ulted the cl ai m . W alker , 2009 WL 4827429, slip op. at *3 1 (“ P et i tioner did not prese nt any of the fac ts of these prosec utorial misconduct claims as i ndepende nt fede ral c laims of prosecutorial mi sconduct to the
state courts. Thus, these prosec utorial misconduct claims are subject to proce dural defa ult.”). The district court may have been allowed to raise a proce dural defa ult defe nse sua sponte , see Lorraine

v. Coyle , 291 F.3d 416, 426 (6th Cir. 2002), but that power assumes the court construes a defa ulted claim as the pe titioner has fa shioned it. Had the district court proper ly rea d Walker’s ineffe ctive assistance claim and conclude d that it was defa

ulted, that conclusion would have been i n co rr ec t , beca use the Tenne ssee Court of Criminal Appea ls reje c te d th e c la im on the merits. There fore , the district court incorre ctly conclude d

20No. 09-6537

t hat Walker defa

ulted his ineffe ctive assistance claims based on counsel’s failure to object to t h e prosec utors’ bolstering Offic er L ane’ s testimony and alleg ation that Walker knew of Howar d Har p’s history of suicide a ttempts. B. Legal F ram ework Def ense counsel’s failur e t o object to prosec utorial misconduct can amount to ineffe ctive

ass i s t an ce o f co unsel. See Hodge v. Hurley , 426 F.3d 368, 377 (6th Cir. 2005). A petitioner’s ineffe ctive assistance claim based on counsel’s failure to object will not succe ed if the decision not to object flowed from objectively rea sonable trial strateg y . Id. at 385–86. The soundness of counsel’s strateg y become s i n cre asing ly difficult to demonstrate the more outrag eous the prosec utor’s conduc t. See id. A prosec utor commits misconduc t if improper c omments from the prose cutor “ so infecte d the trial with unfairne ss as to make the conviction a denial of due proce ss.” Lundgren , 440 F.3d at 778 (quoting Darden v. W ainwright , 477 U.S

. 1 6 8 , 1 8 1 (1 986)). The questions of whether a prosec utor’s comments amount to misconduct, and whether the misconduct rende rs a trial fundame ntally unfair, are mix ed questions o f l aw an d fac t revie wed de novo . United States v. Francis , 170 F.3d 546, 549 ( 6th Cir. 1999). We employ a two-par

t test for revie wing a habea s petition’s prosec utorial misconduct claim. First, a petitioner must demonstrate the prosec utor’s comments wer e improper. Broom v. Mitchell , 441 F.3d 392, 412 (6th Cir. 2006). A prosecutor’s conduct is improper if she m akes a n arg ument not based on evidenc e in the rec ord, makes a statement calc ulated to incite the jurors’ “passions and prejudice s,” or makes a comment aimed at “c o m p l etely underc ut[ ting] the defe ndant’s sole

21No. 09-6537

mitigation theory .” Id. (citing Bates v. Bell , 402 F.3d 635, 641 (6th Cir. 2005), DePe w v. Anderson , 311 F.3d 742, 749 ( 6th Cir. 2002), and Gall v. Parke r , 231 F.3d 265, 315 ( 6th Cir. 2000)). Second, a petitioner must demonstrate that the prosec utor’s condu ct was flag rant. Id. I n deciding whether a prosec utor’s conduct was flag rant, this Court considers “(1) the likelihood that the rema rks of the prosec utor tended to mislead the jury or prejudice the defe ndant; (2) whether the

rema rks wer e isolated or extensive; (3) whether the rema rks wer e delibera tely or acc identally made; and (4) the total streng th of the evide nce a g ainst the [petiti oner].” Id. (citation omitted). C. Analysis Walker all eges five comments from state prosec utors wer e improper and flag rant, and,

acc ording ly , counsel’s failure to object to the acc used comments repr esente d ineffe ctive assistance

. First, Walker contends the pr o s e cutor’s descr iption of the g unshot residue expert’s testimony misrepre sented evidenc e in the rec ord. A fore nsic expert tested Walker’s hands for g unshot residue. He found small amounts of barium and an t i m o n y , t wo of the three metals that compose g unshot residue. The ex pert described the amount of residue he found on Walker’s hands as i n co nclusive and prese nt at levels insufficient t o al l o w h im to conclude Walker fired the g un. I n her closing statement, the prose cutor de scribed the expert’s testimony : Now, wher e d o es t h e defe ndant have minute amounts of g unshot residue on his hands? You’ll rec all [t he exper t ] s ai d h e h ad them on the surfa ces of his hands, I believe a littl e bit on one of the palms—I don’t reme mber from my notes—but on the surfa ces of his hands. So even though he washe d his hands, and Mr. Davis from the lab testified that y ou can remove g u nshot residue by washing y our hands, but this defe ndant had g unshot residue, minute particle s of g unshot residue, or the chemica ls, two chemica ls, in very

small amounts of his hands. (Pet’r A pp. 365.)

22No. 09-6537

Second, Walker arg ues that the prosecu t o r m isrepre sented the evidenc e reg arding blood found on the shirt Walker wore when Howar d was shot. A serolog ist perf ormed a test on a portion of the shirt stained by two small red spots. The serolog ist conclude d that one of the spots one-e ighth of an inch in diameter was dried human blood, but she could not deter mine the source of the blood

or when it stained Walker’s shirt. I n her closing statement, the prosec utor descr ibed the contents of the re d spots: [I ]f y ou will look very closely up in this are a of this T-shirt, if y ou’ll look very , very closely to the spot a

nd the splatter on that, the fade d splatter on there , I believe tha t y ou will understand what [t he i n v es t i gating office r] saw if y ou can just imag ine it being a littl e brig hter color. We’re not talking about smears of blood. We’re talking about blood splatter, what happens when some b o d y pulls a trig g er and blows somebody ’s brains out and the blood splatter s. I t spla tters. I t doe sn’t transfe r. I t’s not smeare d. I t splatters. ( Id

. 366.) Walker con t ends that counsel’s descr iption of the red spots as “splatter” was improper, beca use the ser ologist did not testify that both spots were huma n blood. Third, Walker challeng es counsel’s failure to object to cer tain char acte rizations th e l ead prosec utor made dur ing he r closing arg ument: Mr. Walker is a

very cleve r and a

very cunning , very hear

tless [sic]. And I say that beca use t he proof in this case showed y ou that. And I want to tell y ou specifical ly what I ’m talking about. He has no remorse . At any time during this evidenc e that’s been prese nted in this case did y ou hear one single time that he shed a tear or he said any thing be ing r emorse a s far as this victim? ( Id . 367.). Four th, Walker contends the prosec utor misrepre sented evidenc e in the rec ord by asser ting that Walker knew about Howar d’s history of s u i cide attempts. J err y Har p testified that he had known Walker for roug hly one month prior to the day of the shooting. The rec ord befor e the Court

23No. 09-6537

does not d i s clos e whether Howar d had previously met Walker befor e the day of the shooting or whether Walker had any knowledg e of Howa rd’s history . I n her closing statement, the prosec utor arg ued that Walker kne w about Howa rd’s history

of suicide a ttempts: Every body in the world that knew t h e v ictim in this case and knew his family , including his fr iend, Mr. L on Walker, hi s drinking buddy , knew that How ard H arp had threa tened or att em pted suicide on numerous other occa sions

. . . [J err y Har p] testified in here that when [Howard] would g et to drinking and he woul d get d ep re s s ed that he would start fee ling like nobody loved him and he would sta rt th re at ening suicide, sometimes attempting suicide. And this defe ndant rig ht over here who was friends with J err y and Howar d Har

p went out drinking with them, hung out with them, knew all about that, and this defe ndant rig ht over here took advanta g e of that situation

. . . This defe ndant over here who was jealous, who knew this y oung man had a

tendenc y to try , to threate n, to attempt suicide. ( Id

. 363–64.) Walker arg ues the misrepre sentati o n was signific ant, contending it cre ated the impression that Walker knew he could shoot Howar d and potentially blame the shooting on Howar d. Final l y , t h e prosec utors ref err ed to Offic er L ane’ s investiga tion during their closing arg uments, wh i ch W alker arg ues was improper. I n her closing statement, the lead prosec utor expressed conf

idence in Office r L ane’ s investiga tion of Howar d’s dea th: [L ]adies and g entlemen of the jury , I just want to say and I want to tell y ou that J ames L ane with the C ookeville P olice Department has done an excellent job in this case investiga ting this case , and we are just asking y ou to find the truth. That’s all we are asking y ou to do in this case . ( Id

. 368.) The assisting prosec utor then explained how Patzer’s discussions with Offic er L ane led her t o ch an ge her story and state that Walker shot Howar d. I n explaining why Offic er L ane investiga ted the shooting , the prosec utor stated: Offic er L ane told y ou that he had 154 active case s. L adies and g entlemen, if this had been a suicide, he probably would have been happy to fold his case file up and let it g o. But, a s [defense c ounsel] said, we’re afte r justice. And if he fe els that was not

24No. 09-6537

justice, then he’s g ot to investiga te. He didn’t need another case . He’ s g ot plenty of them. ( Id

. 389.) Walker contends the prosec utors’ statements constituted misconduct, on the g round that it is improper for a prosec utor to bolster an office r’s testimony or offe r his pe rsonal opinion on the defe ndant’s g uilt. See, e .g. , United States v. W arshak , 631 F.3d 266, 303 ( 6th Cir. 2010). The prosec utors’ first three comments wer e not improper. The prosec utor quickly corr ecte d herse lf afte r stating that the expert found g unshot residue on Walker’s hands, descr ibing the materia ls on Walker’s hands as two of the chemica ls that make up g unshot re s i d u e. As to the comments about the blood on Walker’s shirt, c ounsel did not misreprese nt the evidenc e pre sented to the jury

. “Splatter” is not a term of art, and by using tha t term the prose cutor did not imply that the expert testified she found blood splatter on Walker’s shirt. Rather, “splatter” is a colloquial term, which counsel used to arg ue that the spots on Walker’s shirt wer e, in fac t, spots of Howar d’s blood that fell on Walker’s shi rt

. T h i s arg ument was a proper attempt to lead the jury to an infere nce draw n from some e vidence on rec ord, which does not c onstitut e misconduct. See United States v. Henry , 545 F.3d 367, 377 ( 6th Cir. 2008). For the same rea son, the prosec u t o r’ s comm ents reg arding Walker’s char acte r wer e not improper. She drew her arg ument from Offic er L ane’ s testimony that Walker appea red calm when office rs showed up at her trailer, and the infere nce was a valid one. Whil e this Court has conclude d
t h at a prosec utor commits misconduct by making an “animate d rec itation” of proper ly -admitted char acte r evidenc e, W

ashington v. Hofbauer , 228 F.3d 689, 699 (6th Cir. 2000), and by asser ting that members of the jury should be afr aid to “run into [t he defe ndant] at night,” Hodge , 426 F.3d at 383, the prosec utor’s comments in this case f ell well short of the impropr iety display ed in those ca ses. 25No. 09-6537

By contra st, the rema ining two sets of comments wer e improper. The reco rd does not disclose that Walker kne w about Howa rd’s history

of suicide attempts, and so it was improper for the prosec utor to asser

t that Walker knew of them. As this Court has explained, a prosec utor’s act of misrepre senting fac ts in evidenc e is improper, since doing so “may profoundly impress a jury and may have a signific ant impact on the jury ’s deliber ations.” W ashington , 228 F.3d at 700 (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 646 (1974))

. The rec ord befor e the Court discloses no basis upon which the prosec utor could arg ue th at Walker “knew all about” Howar d’s history of suicide attempts. The prosec utor’s rema rks wer e also flag rant: they wer e delibera te and extensive, sprea ding acr oss roug hly two transcr ipt pag es of her closing statement. Gi v en t h e testimony that Walker had become ang ry with Howar d ear lier in the evening , the prosec utor’s rema rks potentially misled the jury into believing Walker could have formulated a plan to ac t o n h i s ang er. The
comments are all the more troubling g iven that no other evidenc e supported the theory that Walker
acte d with the sort of preme ditation that using knowledg e of Howar d’s suicide attempts as an alibi would have e ntailed. Even more troubl in g w e r e th e p r o s e c u to r ’ s comments reg arding Offic er L ane’ s investiga tion, which bolstered an d vouched for L ane’ s testimony

. We have explained that “[b] olstering and vouching are much alike and g o to the hear t of a fair trial.” Francis, 170 F.3d at 551. A prosec utor bolsters testimony when he “implies that the witness’s testimony is corr oborate d by evidenc e known to the g overnme nt but not known to the j ury .” Id. Vouching occur s when a prosec utor place s the prestig e of the g overnme nt behind a witness with th e p ro secutor’ s persona l assura nce of the witness’s reliabilit y . Id. at 550. Vouching also occur s when a prosec utor expresses hi s “per sonal

26No. 09-6537

belief” in the defe ndant’s g uilt, which this Court has rep ea tedly condemne d. Bess , 593 F.2d at 755–56; see W

arshak , 631 F.3d a t 303. Whil e all of the prosec utors’ comments lauding the office r’s investiga tion wer e out of bounds, it was espec ially improper for the assisting prosec utor to asser t that L ane “would have been happy to fold his case f

ile up . . . if [Howard’s de ath] had been a suicide.” This c omment directly violated the rule long rec og nized in our circ uit that “it is alway s improper for a prosec utor to sug g est that a defe ndant is g uilty mere ly beca use he is being prosec uted or has been indicted.” W ashington , 228 F.3d at 701–02 (quoting Bess , 593 F.3d at 754) (interna l quotation mark s omitted). We

announce d that rule in Bess , in w hich an Assistant U nited States Attorney prosec uting a defe ndant

acc used of c onverting g overnme nt property asser ted to the jury

that: I f the United States did not believe t h e defe ndant was g uilty of committing these char g es in the indictment, based on the evidenc e that has been prese nted to y ou, this case , of course , would have never been prese nted to y ou in the first place

. I t would have ne ver be en pre sented to y ou. Bess , 593 F.3d at 753. The case ag ainst the defe ndant in Bess , like the case ag ainst Walker, was one in which “[c]redibilit y was the key issue.” Id. The comments in Bess , like the comments of the assisting prosec utor here , wer e “doubly inexcusable” since they wer e “made by a p ro s ec u t i n g attorney .” Id. at 753–54. The jury deciding Walker’s fate “fa ce[d] difficult cre dibilit y issues” rela ted to Patzer’s testimony

. Id. at 755. Bolster ing and vouching are “espe cially problematic” in

case s where the jury ’s verdic t is likely to turn on witness cre dibilit y . United States v. Combs , 379 F.3d 564, 576 (9th Cir. 2004) (interna l citations omitted). Making them even more problematic in this case is the fac t that a law enfor ceme nt officia l’s testimony was vouched for and bolstered, thus g iving the a ssisti ng prosec utor’s comments a “ devasta ting impac t.” Bess , 593 F.3d a t 755. 27No. 09-6537

The assisti ng prosec utor’s comments also implied that he personally believed Walker was g uilty

. See Francis , 170 F.3d at 550 (expla i n i n g that vouching can occur when a prosec utor’s
comments “imply ,” rathe r than state outrig ht, his knowledg e of fac ts outside the jury ’s view). The assisting prosec utor’s comments set up a stark contra st. I n one scena rio, police would rule Howar d’s d ea t h a s u i ci d e, making L ane “happy to fold his case file up and let [t he case ] g o.” As the case turned out, howeve r, Offic er L ane soug ht out “justice” and i n v es t i g ated Walker. The comments equate d acquittal with injusti ce, and forc ed the jury into a straig htjackete d choice betwee n the justice of a c onviction and the injustice of a n acquittal. The comments wer e also flag rant. The prosec utor’s rema rks wer e rela tively isolated, but we have r ecog nized that, “[i ]n som e instance s, a sing le forbidden comment i s sufficie nt to poison the entire trial.” W

arshak , 631 F.3d at 307. We ha ve just such an instance in this case : the comments about Offic er L ane’ s investiga tion poisoned Walker’s trial. The comments wer e not casua l or offhanded, but wer e rathe r woven into the prosec utor’s narr ative detailing the chang e in Patzer’s story and Offic er L ane’ s decision to investi gat e t h e shooting as a homicide. Thus, the prosec utor’s
comments wer e deliber ate. Also signific ant in our flag ranc y inquiry is the fac t that the prosec utor’s comments bolstered and vouched for the testimony and i n v es t i g ation of a law enfor ceme nt officia l rathe r than a lay witness. We have not hesitated to reve rse convictions in which a prosec utor has vouched for or bolstered the testimony of a lay witness. See, e.g. , Francis , 170 F. 3 d at 551; United States v. Carroll , 26 F.3d 1380, 1389 (6th Cir. 1994). We find it more damag ing that the assisting prosec utor here bolstered and vouched for a police investiga tor. I f it poisons an entire trial for a prosec utor to

28No. 09-6537

vouch for the truthfulness of a g overnme nt witness testif y i n g p u rsuant to a plea ag ree ment, see Francis , 170 F.3d at 550, then it must be the case that comments vouching for the investiga tion and testimony of a law enfor ceme nt officia l does the same. Thus, the comments likely misled the jury , resting as they did on the assumption that jurors should trust a law enfor ceme nt officia l irrespe ctive of the evidenc e befor e them. All told, no rea sonable jurist could disag ree with the conclusion that counsel’s c omments so poisoned W alker ’s trial as to depr ive him of due proc ess of law

. Petitioner’s trial counsel could not have had a strateg ic basis for failing to object to the prosec utors’ offe nding statements. Walk er’ s chanc es of acquittal could g ain nothing from a statement from the prosec utors appea ling to the high reg ard in which law enfor ceme nt officia ls are held, particula

rly in a case low on hard evidenc e and staked larg ely on witness cre dibilit y . Def ense counsel should have objected to the pr osecutors’ rema rks. For the rea sons stated above, the state court unrea sonably applied fede ral law in concluding th at counsel’s failure to object to these comments did not constitute ineffe ctive assistance

. See W a l ke r , 2002 WL 31520654, at *11–12. Whil e there may be rea sons to conclude that counsel’s failure to object to an improper rema rk is justified in other case s, none of those rea sons apply here

. I n cer tain case s, counsel may rea son that an objection would draw undesirable attention to the prosec u t o r’ s comments. See Schauer v. McKee , 401 F. App’x 97, 101 (6th Cir. 2010). That justification is unconvincing with reg ard to the prosec utor’s comments about Offic er L ane. Given the obvious potency of the prosec utor’s comments and important role cre dibilit y judgme nts play ed in the jury ’s deliber ations, the prosec utor’s re quest that the jury assume fire exis ted wher e Of fice r L ane found smoke was too damag ing to ignor e. Moreove r, while a single failure to object often does

29No. 09-6537

n o t constitute err or, see Lundgren , 440 F.3d at 774, the comments vouching for and bols t er i n g Offic er L ane wer e sufficie ntly sever e to poison the entire trial, see W arshak , 631 F.3d at 307, rende ring inexcusable counsel’s decision to let them pass. The state court err ed by overlooking these fac tors in concluding counsel wa s not ineffe ctive for failing to object. Counsel’s failure to object prejudice d Walker. As we have explained, the evidenc e ag ainst Walker left the outcome of his trial far fro m ce rt ai n , an d the case ag ainst him turned larg ely on witness cre dibilit y . Thus, counsel’s decision not to object to the prosec utor’s comments fre ed jury members to allow the judgme nt of a law enfor ceme nt officia l to satisfy any doubts about the state’s evidenc e. Henc e, there is a rea sonable probabily that an objection from counsel would have led to a diffe rent outcome in Walker’s trial. CONCLUSION For the rea sons stated above, the judgme nt of the district court is reve rsed, and a conditional writ of habea s corpus is issued, direc ting the State of Tenne ssee to retry Petitioner within 120 day s from the da te of this order or re lease him from custody

.

30No. 09-6537

HELE NE N. WHITE, Circuit Jud ge , concur ring

.

I concur in all respe cts except with the conclusion that the state court unrea sonably applied fede ral law in concluding that counsel’s failure to object to the prosec utor’s arg uments conce rning Offic er L ane did not wa

rra nt a new tr ial under Strickland v. W ashington, 466 U.S. 668 (1984).

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