NOT RECOMMENDED F OR PUBL I CATI ON File Na me: 11a0292n.06 No. 08-2067 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

DAMON H UDSON, Petitioner-Appellant,

v. BL AI NE L AFL ER, Warden, Respondent-Appe llee.

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

Before: G ILMAN, G IBBO NS, and COOK, Cir cuit Judges. RONALD LEE GILMA N, Ci rc u i t Judge. After a bench trial in Michig an state court, Damon Hudson was convicted in September 2001 of assault wi t h intent to commit murder, in violation of Mich. Comp. L aws § 750.83; possession of a firea rm during the commission of a felony , in violation of Mich. Comp. L aws § 750.227b; and arme d robber y , in violation of Mich. Comp. L aws § 750.529. These convictions wer e based on the fac t that Hudson robbed Keith Br adley at g unpoint

at an automatic teller machine (ATM) and shot Br adley as the latter drove awa y . Hudson is in a state prison serving a maximum sentenc e of 52 y ear s for these crimes. After exhausting his direc t appea ls and postconviction relief in the state courts, Hudson filed

a habea s corpus peti t ion in fede ral district court that asser ted sever al constitutional claims. The district court deni ed h i s h ab eas petition and denied his reque st for a cer tificate of appea labilityNo. 08-2067

Hudson v. Lafler (COA). This court then g rante d Hudson a COA on his claims that (1) the evidenc e was insufficient

to support the conviction, and (2) the admission of the g un found in his car was an err or rising to the level of a due proce ss violation. Hudson now appea ls the denial of his habea s petition, arg uing that the writ should issue based on these two claims. For the rea sons set forth below, we AF F IRM the judgme nt of the district court. I. BACKG ROUND As noted above, Hudson’s three convictions wer e based on his robbing Br adley at g unpoint

at an ATM and shooting Br adley as the latter drove awa y . Br adley ’s version of the rele vant events is as follows: At about 4:00 a.m. on April 8 , 2 0 0 1 , h e was depositing a chec k and withdrawing money at an ATM on J ohn R St ree t in Detroit, Michiga n. A strang er c ame from around the ATM and stuck a revolve r throug h Br adley ’s window and ag ainst Br adley ’s chest. Br adley fea red for his life. The g unman told Br adley not to do any thin g s t u p i d and reque sted Br adley ’s persona l identification number (PI

N). Br adley pushed his ATM car d into the machine, enter ed his PI N, and told the gun m an t o withdraw money from his saving s acc ount. As the gunman turned toward the ATM to withdraw the money , Br adley put his car into g ear and drove off, attempting to esca pe. The g unman shot at Br adley as he pulled awa y , hitting him in the fore arm and thigh. Although Br adley collided with a tree during his esca pe, he manag ed to drive to a hospital wher e he was trea ted. More than $100 was w ithdrawn fr om Bra dley ’s bank a ccount a fter he drove a way . Sometime afte r 6:0 0 a. m . on the same day , a police office r interviewe d Br adley at the hospital. Although Br adley was suffe ring from the g unshot wounds, he was able to explain what had happene d and desc ribe the suspe ct. -2-No. 08-2067

Hudson v. Lafler Br adley later attended a lineup, but was unable to identify any one. He descr ibed the suspect

as a 5' 10" tall male, weig hing 180 to 200 pounds, and having a dark complexion. Although Br adley told the police that the suspect had short hair, he admitted at trial that a picture of the suspect at the ATM showed tha t the suspect wor e something on his head that c overe d his hair. Hudson told a very differ ent story

. He testified that he knew Br adley as “Whitey ,” Br adley ’s street name, and that Br adley had purcha sed coca ine from Hudson on sever al prior occa sions. During the ear ly morning hours in question, Hudson said that he met Br ad l ey near a whore house throug h Ang ie, a prostitute. Br adley alleg edly wanted t o buy more coca ine, but he alre ady owed Hudson $200 from a previous drug purcha se, and Br adley neede d to pay Ang ie. Hudson and Br adley then drove to the ATM in separ ate car s so that Br adley could g et money to pay Hudson back and buy

more drug s. Dea

ndre Matche tt, also called J ay Rock, acc ompanied Hudson. Hudson car ried the

coca ine that B radle y

wanted to buy

in a brown ma

nilla envelope. Acc ording to Hudson, Br adley activate d his ATM car d and instructed Hudson to withdraw $300 from his acc ount. Hudson tried to withdraw the money , but Br adley ’s acc ount had insufficient funds. Br adley then drove awa y and, as he did so, Hudson contends that the envelope containing the

coca ine fe ll insi de Br adley ’s car . Hudson rema ined at the ATM for about eig ht se conds afte r that,

unsucces s fu l l y try ing to withdraw money . Hudson denied having a g un, shooting Br adley , or knowing how Bradle y go t shot. He also testified t hat he did not see Matchett wit h a gun and that Matche tt did not s hoot Bra dley either. Ma

tchett was not c alled as a

witness by

either pa rty

. Br adley and Hudson’s encounte r at the ATM was captur ed on a video-surve illance sy stem. The prosec ution introduced 29 photogr aphs take n from the ATM’s surveillance video into evidenc e. -3-No. 08-2067

Hudson v. Lafler Unfortuna tely , these photogr aphs are not part of the rec ord on appea l beca use the police wer e unable

to locate the file and the state trial court no longe r has the pictures. What these photogr aphs show, or do not show, is theref

ore ne cessa

rily based on the trial testimony of B radle y

and Hudson. Br adley testified that th e m an pictured outside his car in the photogr aphs is the man who robbed and shot him. Hudson admitted that he was the person standing outside of Br adley ’s car and that he was wea

ring a black ny lon “do-r ag ” (a head cover ing)

. Although Br adley admitted that the pictures did not show Hudson holding a g un, the testimony establishes only that Hudson’s left hand is visible, not his rig ht. Both parties acknow ledg e that the pictures showed Hudson holding a small object that looks like an envelope in his left hand. Hudson claimed that this was the envelope containing the coc aine. Two day s after

the robbe ry , Hudson was apprehe nded. He was in a ca r with Matche tt that the police stopped on J ohn R Street. The office rs arr ested the two men. Serg eant Be nito Mendoza impounded the car and conducte d an inventory sear ch of its contents. The sear ch reve aled a loaded revolve r and Hudson’s i dentifica tion in the t runk and a do-rag in the back seat. Both the g u n an d the do-rag wer e admitt ed int o evidenc e. Hu d s o n testified t hat t he gun and do-ra g rec overe d from his car be longe d to Matchett, who ha d borrowe d his car the previous nig ht. D u r in g c lo s in g a

r g u me n t, Hudson’s attorney arg ued that the photogr a p h s s u p p o r te d H u d s o n ’ s version of events and underc ut Br adley ’s beca use no g un appea

red in the pictures. The attorney also arg ued that there was a rea sonable probability that someone else shot Br adley beca use Br adley was involved in drug s, a dang erous habit. Finally , the attorney arg ued that even if Hudson shot Br adley ,

-4-No. 08-2067

Hudson v. Lafler Hudson lacke d the intent to kill that is nece ssary to convict Hudson of assault with intent to commit murder. The state trial judge cre dited Hudson’s testimony that he was a street thug who dealt in drug s and prostitution, but the judge stated that he did not believe any thing else that Hudson said. At the end of the t rial, t he judge found that Hudson acc osted Br adley at t he ATM, attem p t ed to rob hi m, and shot Br adley as t he latter drove away

. Acc ording ly , the j udg e found Hudson g uilty of assault with intent to commit murder, possession of a firea rm during the commission of a felony , and arme d robber y . Hudson was sentenc ed to a term of 2 5 t o 5 0 y ea rs in prison for the arme d robber y , a

concur rent sentence of 25 to 50 y ear s for a ssault with intent to commit murder, and a consec utive

sentenc e of 2 y ear s for possession of a firea rm during the commission of a felony

. The trial judg e l at er grante d Hudson’s motion for rese ntencing , amending his sentenc e on the arme d-robbe ry conviction to 17 y ear s, 6 months. Hudson’s overall maximum sentenc e re mained at 52 y ear s. I n Dec ember 2002, Hudson filed a delay ed application for leave to appea l with the Michig an C ourt of Appea ls, arg uing (1) that the evidenc e was insufficient to support his conviction, an d (2) that admitting the g un into evidenc e was prejudicia l err or. The Michig an Court of Appea ls denied the lea v e t o appea l in Marc h 2003 in a summary order “for lack of merit in the g rounds prese nted.” Hudson then raised the same two claims befor e the Michig an Supreme Court, which also denied le ave to a

ppeal in a summary order “bec ause [ it was] not persuaded that the que stions prese nted should be re viewed by [i t] .”

-5-No. 08-2067

Hudson v. Lafler Next, Hudson raised five issues of alleg ed err or in a motion for relief from judgme nt under Michig an C ourt Rules (MCR) 6.500 et s eq. (Hudson actua lly raised nine issues count i n g the s ubiss u es . ) I n broad terms, Hudson alleg ed that he was denied his rig ht to the effec tive assistance of trial and appellate counsel; that his sentenc e was based on i n ac cu ra t e information; that he was actua lly innocent; and that the trial court deprive d h i m o f h i s constitutional rig hts in a varie ty of way s, including the making of clea rly err oneous finding s of fac t. The trial court denied this motion for two rea sons: (1) Hudson had not sat i s fi ed M C R 6.508(D)( 3)’s threshold require ment that he show g ood cause for failing to raise those claims on appea l and show actua l prejudice resulting from the alleg ed err ors; and (2) the claims wer e wholly without merit. Hudson appea led the trial court’s decision, but both state appe llate courts denied leave to appea l beca use Hudson failed to meet the burden of establishing e ntitlement to relief under MCR 6.508(D). This led Hudson to file a habea s corpus petition in fede ral district court in acc ordanc e with 28 U.S.C. § 2254. Hudson alleg ed, among other things, that the evidenc e was insufficient to support his conviction and that admitting the g un into evidenc e was prejudicia l err or. The State asser ted that

sever al of Hudson’s claims wer e proce durally defa ulted, but the district court analy zed all of Hudson’s claims on the m erits wit hout considering the procedura l-defa ult issues beca

use i t found that approa ch more eff

icient. Apply ing the standards set forth in the Antiterror ism and Effe ctive Dea th Penalty Act (AEDPA) , which is codified in part at 28 U.S. C

. § 2254(d), the court denied habea s relief

. Hudson then filed a

motion for a COA, whic h the district court denied in Aug ust 2008. I n Marc h 2009, a single judge of the Six th Circuit also denied Hudson a COA. But Hudson petitioned -6-No. 08-2067

Hudson v. Lafler for a rehe aring

of the Six th Circuit’s ruling a nd, in Aug ust 2009, this c ourt g rante d him a COA on two issues: (1) “w hether

the evidenc e was sufficie nt to support the convictions,” and (2) “whe ther the admission of the g un found in Hudson’s car was an err or rising to the level of a due proce ss violation.” I n acc ordanc e with this COA, Hudson now appe als the district court’ s rulings. II. ANALYSIS Hudson arg ues that we should g rant the writ of habea s corpus for three rea sons: (1) the evidenc e was insufficient to convict him of t he three offenses because the phot og raphs prove t hat he did not have a gu n d u ring the incident; (2) even assuming that he had a g un, the evidenc e was insufficient to prove that he had the intent to kill Br adley , which is an essential element of the crime of assault with intent to commit murder; and (3) admitting the g un rec overe d from Hudson’s car into evidenc e wa s an er

ror that de nied him his right to a f undamentally

fair tr ial. Be fore turning to the merits of these claims, we would ordinarily decide the exhaustion and p ro ce d u ra l -default issues raised by the State. But the fede ral courts can by pass these threshold inquiries if they decide the merits ag ainst the petitioner, espec ially wher e analy zing the merits is less complex than analy

zing t he procedura l i s s ues. See 28 U.S.C. § 2254(b)( 2) (“An application for a writ of habeas corpus may be denied on the m erits, not withstanding the failu re of the applicant to exhaust the reme dies available in the courts of the State.”); Lambrix v. Singletary , 520 U.S. 518, 525 (1997) (re asoning that the fede ral courts may ignor e a complicated “proc edura l-bar issue” wher e the merits are “ea sily resolvable ag ainst the habeas petit ioner” ). Beca use we conclude that Hudson’s claims lack me rit, we will not analy ze any exhaustion or procedur al-de fault issues. A. Stand ard of review -7-No. 08-2067

Hudson v. Lafler We revie w a district court’s leg al conclusions in a habea s case d e novo and its fac tual finding s under the clea

r-e rror standard. Lovell v. Duffey , 629 F.3d 587, 593-94 (6th Cir. 2011). I n addition, fede ral c ourts revie w state-c ourt decisions in habea s proce eding s under the sta ndards se t forth in AEDPA (28 U .S.C. § 2254(d)). Section 2254(d) pr ovides as follows: (d) An application for a writ of habea s corpus o n b eh al f of a person in custody pursuant to the judgme nt of a State court s h al l n ot be g rante d with respe ct to any claim that was adjudicate d on the merits in State court proce eding s u nless the adjudication of the claim– (1) r esulted in a de cision that was contra ry to, or involved an unre asonable application of, clea

rly established Fe dera l law, as deter mined by the Supr eme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fa cts in light of the e vidence prese nted in the State cour t proce eding

. Section 2254(d) cre ates a “‘hig hly d ef ere ntial standard for evalua ting state-c ourt ruling s,’ which demands that state-c ourt decisions be g iven the benef it of the doubt.” W

oodford v. Visciotti , 537 U.S. 19, 24 (2002) (quoting Lindh v. Murph y , 5 2 1 U. S. 320, 333 n.7 (1997))

. A state-c ourt decision is contra

ry to clea rly established fed er al l aw u nder § 2254(d)( 1) only if “the state court

arr ives at a conclusion opposite to that rea ched by [t he Supreme Court] on a question of law or if the

state court decide s a case differ ently th an [ t h e S u p reme Court] has on a set of materia lly indisti ng uishable fac ts.” W illiams v. Taylor , 529 U.S. 362, 412-13 (2000). “A state-c ourt decision is an unrea sonable application of clea rly established fede ral law if it ‘cor rec tly identifies the g overning leg al rule but applies it unrea sonably to the fac ts of a particula r prisoner’ s case .’” Parker v. Re nico , 506 F.3d 444, 448 ( 6th Cir. 2007) (quoting W illiams , 529 U.S. at 407-08).

-8-No. 08-2067

Hudson v. Lafler “When assessing unrea sonablene ss, ‘a fede ral habea s court may not i s s u e the writ simply beca use that court conclude s in its independe nt judgme nt that t he rele vant state-c ourt decision applied clea

rly established fede ral law err oneously or incorre ctly

. Rather, that application must also be unre asonable .’” Id . (quoting W illiams , 529 U.S. at 411). Wit h respe ct t o § 2254(d)( 2), “fac t u al determinations by state courts are presumed co rr ect absent clea

r and convincing evidenc e to the contra ry , § 2254(e) (1), an d a deci s i o n ad

j u dicated on the merits in a state court and based on a fac tual deter mination will not be overturne d on fac tual grounds unless objectively unrea sonable in lig ht of the evide nce pr esente d in the state-c ourt proce eding .” Aye rs v. Hu d

s o n , 623 F.3d 301, 308 (6th Cir. 2010) (bra ckets omitted) (quoting Miller-El v. Cockrell , 537 U.S. 322, 340 (2003)). Under AEDPA’s strictures, we revie w the last state-c ourt decision to rea ch the merits of the particula r claim being considere d. Phillips v. Bradshaw , 607 F.3d 199, 209 (6th Cir. 2010). As to the claims that Hudson raised on direc t appea l, the Michig an Court of Appea ls was the last state court to rea ch the merits. The last state-c ourt to rea ch the mer its of the claims that Hudson raised in his state postconviction procee dings w as the trial c ourt. Be cause both of these c ourts issued summary opinions that do not discuss their reasoning , “we defe r only to the result rea ched, not the rea soning used by the state court.” Lovell , 629 F.3d at 595 (bra ckets and internal quotation marks omitted); accord Harris v. Stovall , 212 F.3d 940, 943 n.1 (6th Cir. 2000) (holding that wher e a state court decide s an issue in summa ry fa s h ion, “a habea s court should then focus on the result of the state court’s d ec i s ion”). We conduct a “ca ref ul and independe nt reviewof the re cord a nd applicable law.” Lovell , 629 F.3d at 595 (interna l quotation marks omitted). Bu t t h i s i ndepende nt revie w “is not a full, de novo revie w of the claims.” Id

. -9-No. 08-2067

Hudson v. Lafler (i n terna l quotation marks omi tted). Our review inst ead “re mains defe rential because [we] cannot g rant relief unless the s tate court’s result i s not in keeping with the strictures of the AEDPA.” Id

. (interna l quotation marks omitted). T h e fo cu s of our revie w, in other words, is “to deter mine whether , under the AEDPA standard, the state court decision is contra ry to fede ral law, unrea sonably applies clea

rly established law, or is based on an unrea sonable deter mination of the fac ts in light of the evidenc e pre sented.” Howard v. Bouchard , 405 F.3d 459, 467 ( 6th Cir. 2005). B. Suf

fi ciency of the evidence I n Jack son v. Virginia , 443 U.S. 307 (1979), the Supreme Court set forth the st an d ar d fo r challeng es based on sufficie ncy of the evidenc e, holding that “the rele vant question is whether , afte r viewing the evidenc e in the light most favor able to the pr osecution, any rational trier of fac t c ould have found the essential elements of the crime bey ond a rea sonable doubt.” Id. at 319 (empha sis in ori gi n al ). This standard is applied “with expli cit ref ere nce to the substantive elements of the criminal offense as define d by state l aw.” Id

. at 324 n.16. Under this standard, a reviewing court does not rew eig h the evidenc e, rede termine witness cre dibilit y , or substitut e its judgme nt for t h e fac tfinder’ s. Brown v. Konteh , 567 F.3d 191, 205 ( 6th Cir. 2009). “[A] fede ral habea s corpus court fac ed with a rec ord of historical fac ts that supports

co n flicting infere nces must presume—e ven if it does not aff irmatively appea

r i n the reco rd

— t h at the trier of fac t re s o l ved any such conflicts in favor of the prosec ution, and must defe r to that resolution.” Jack

son , 443 U.S. at 326. “The mere ex i s t en ce o f sufficie nt evidenc e to convict there fore defe ats a petitioner’s claim.” Matthews v. Abramajtys , 3 1 9 F.3d 780, 788-89 (6th Cir. 2003). Be cause the Jack

son standard and AEDPA both apply to a habea s petitioner’s sufficie ncy -of-

-10-No. 08-2067

Hudson v. Lafler the-e vidence claims, we revie w Hudson’s arg uments under a double lay er of defe renc e. See Tucker v. Palme r , 541 F.3d 652, 656 ( 6th Cir. 2008). Hudson firs t argue s that the evidence was insufficient to convict him of t he three offenses beca use the photogr aphs from the ATM su rv ei l l an ce video showed that he did not possess a g un during the i n ci d ent. He asser ts that even Br adley admitted that the photogr aphs showed both of Hudson’s hands and that he did not have a g un in either hand. This is the basis for his arg ument that the state trial court’s finding that Hudson had a g un was unrea sonable, thus entitling him to habea s relief in acc ordanc e with § 2254(d)( 2). Hudson’s arg ument is unpersua sive beca use its premise—that the photogr aphs conclusively established that he did not possess a g un during the incident—is false. Br adley first testified that the g un was in Hudson’s left hand. But afte r examining the p h o t o s , h e testified that the g un was in Hudson’s rig ht hand and explained the di scre pancy by rema rking : “Well, y ou have to unde rstand, I was scar ed for my life beca use I had a g un at my sternum.” Hudson denied having a g un. But the trial judg e found tha t Hudson did have a g un, so the judge cre dited Br adley ’s testimony instead of Hudson’s. To demonstrate that this finding was unrea sonable, the photogr aphs would have had to show that Hudson’s rig ht hand was both visible and did not hold a g un. Otherw ise the photogr aphs could

not exclude the possibili ty that Hudson held a g un in his rig ht hand, which was simply not pictured. We must l ook to the testimony about the photog raphs to dete rmine wha t they showed because the photogr aphs are not in the rec ord. Although w itness testimony about the photogr aphs establishes

-11-No. 08-2067

Hudson v. Lafler that Hudson’s left hand was visib l e i n t h e p h o togr aphs and held no g un, the testimony does not establish that Hudson’s rig ht hand was visible—let alone that it was visible and did not hold a g un. The closest the rec ord comes to sug g esting that Hudson’s rig ht h and is visible in the photogr aphs is the following exchang e betwe en Hudson a nd his attorney : Q: [Hudson’s attorney ] And what are y ou doing with y our rig ht han d , in that first picture? A: [Hudson] Wit h my rig ht hand I ’m pushing to see if—pushing the number amount, the dollar amount that he told me to push in the ATM machine, so that h e could purcha se the roc ks. But this exchang e does not conclusively demonstrate that Hudson’s rig ht hand was visible. Hudson’s rig ht hand may have been outside the fra me of the picture , i n which case the question would simply have been seeking to establish what Hudson wa s doing w ith his hand that could not be see n. The trial judge had the bene fit of examining the photos and judg ing the cre dibilit y of the witnesses, and his fac tual finding that Hudson had a g un is presumed co rr ec t absent clea r and convincing evidenc e to the contra ry . See 28 U.S.C. § 2254(e) (1). Be cause the testimony about the photogr aphs does not ove rcome this presumption, Hudson has failed to show that the tria l judge ’s verdic t was base d on an unre asonable deter mination of the fac ts. Hudson next arg ues t h at admitting the g un later found in his car into evidenc e cannot “suppo rt t h e unrea sonable conclusion that Hudson wielded a g un.” This arg ument assumes that

rec eiving the gun into evidence was ne cessa ry to support the finding that Hudson had a g un at t he ATM. But this assumption is false. Br adley ’s testimony that Hudson had a g un is enoug h by itself

to support that finding

. See Tucker , 541 F.3d at 658 (“[T]his Court has long held that the testimony

-12-No. 08-2067

Hudson v. Lafler of t he victim alone is constitutionally sufficie nt to sustain a conviction.”). I f a victim’s testimony alone is sufficie nt to convict, then a victim’s testimony alone must also be sufficie nt to support the fac tual finding s that are nece ssary to convict. Otherw ise, the testimony of a victim alone would not be suff icient. Moreove r, the admission of the g un was not the only evid en ce corroborating Br adley ’s testimony that Hudson wielded a g un at the ATM. Also rele vant are the fac ts that Hudson admitted being at the ATM with Br adley and that Br adley was shot as he drove awa y . The trial judge was not

unrea sonable in linking these fac ts toge ther to conclude that Hudson had a g un during the incident. Hudson’s final sufficie ncy -of- the-e vidence claim is that even if he had a g un, the evidenc e

was insufficient to pr ove that he had the intent to kill Br adley , which is an essential element of the crime of assault with intent to commit murder. We must first addre ss whether Hudson waived this arg ument befor e rea ching its merits. The State asser ts that Hudson has waived this arg ument by failing to raise it befor e the fede ral district court in his habea s petition. But Hudson’s petition does

set forth the question whether his conviction for assault with intent to commit murder was based on sufficie nt evidenc e “due to the failure of the prosec ution to show Petitioner had a specific intent to kill.” This fac t—combined with the rule that courts should liberally construe the alleg ations of a pro

se habea s petition—defea ts the State’s waiver arg ument. See Franklin v. Rose , 765 F.2d 82, 84-85 (6th Cir. 1985) (holding that courts should liberally construe a pro se habea s petition “to encompa ss any alleg ation stating f

eder al re lief” ( internal quotation marks omitted))

. Turning to the merits of Hudson’s arg ument, the elements in Michig an of “assa ult with intent

to commit murder are (1) an assault, (2) with an actua l intent to kill, (3) which, if succe ssful, would -13-No. 08-2067

Hudson v. Lafler make the killing murder.” People v. Plummer , 581 N.W.2d 753, 759 (Mich. Ct. App. 1998). The

actua l- intent-to-kill element does not need to be proved by “dire ct, positive, or independe nt evidenc e.” P eople v. Taylor , 375 N.W.2d 1, 7 (Mich. 1985) (interna l quotation marks omitted). Rather, the intent may be shown by infere nce from any fac t in evidenc e, provided that the infere nce is reasona ble. Id . at 8. For

example, the fac tfinder may infer the requisite intent from the nature of the defe ndant’s acts constituting the assault; the temper or dispositi on of m ind with which they

wer e appare ntly perf

ormed[;] whether the i nstrument and means used wer e natura lly adapte d to produce death[;] his conduct and decla rations prior to, at the time, and afte r the assault[;] and all other circ umstances calc ulated to throw lig ht upon the intention with which the assault was ma de. Id. (interna l quotation marks omitted). “B eca use of the difficulty of proving an actor ’s state of mind, minimal circ umstantial evidenc e” suffice s to prove t h e intent to kill. People v. McRune ls , 603 N.W.2d 95, 102 (Mich. Ct. App. 1999). Viewing the evidence in the l ight most favor able to the prosecution, a rational trier of fac t could have found the requisite intent to kill. Br adley testified to the following : that the perpe trator stuck a revolve r throug h Br adley ’s window and pushed it ag ainst Br adley ’s chest while attempting

to rob him, that the perpe trator told him not to “do any thing stupid,” that Br adley fea red for his life, and that the perpe trator shot at him as he drove awa y . The perpe trator’ s threa ts during the robber y , his use of a deadly wea

pon, and the fac t that he car ried out his threa ts and shot Br adley are all fac ts from which a ratio n al fac tfinder could rea sonably infer the requisite intent, espec ially when the evidenc e is viewed in the light most favor able to the prosec ution. And to g rant the wr it under AEDPA, we would have to conclude that the state court unrea sonably applied Jack son , not just that it incorrec tly

applied Jack

son . See Tuck

er v. Palme r , 541 F.3d 652, 656 ( 6th Cir. 2008). -14-No. 08-2067

Hudson v. Lafler Hudson’s arg ument to the contra ry is unpersua sive beca

use the principal case he relies on in arg uing that he did not have the intent to kill— People v. Johnson , Nos. 278955, 279522, 2008 WL 4724317 (Mich. Ct. App. Oct. 28, 2008) (per curiam) (unpublis hed opini on)—is distinguishable. I n Johnson , defe ndant J ackson shot the vi ctim, who was standing 10 to 15 fee t away , in the shin. Id

. at *4. The court rea soned that finding an intent to kill by J ackson would require the court to conclude that “Jackson shot [the victim] in the shin w ith the hope that a fata l injury would result,” which is “contr ary to logic .” Id. Be cause no evidenc e sug g ested that some fac tor altere d J ackson’ s shot—su ch as ev i d en ce that the victim was moving at the time—the court could not rea sonably

assume that J ackson aimed at the victim’s head or torso. Id. And the court rea soned that it must be able to rea sonably assume that J ackson aimed at one of these vital reg ions to conclude that J ackson intended to kill the victim. Id. I n the prese nt case , the fac tfinder could rea sonabl y as s u me that Hudson aimed at one of Br adley ’s vital reg ions beca use Hudson presse d the g un up ag ainst Br adley ’s chest at the ATM. And althoug h the bul let passed through Bra dley ’s forear m and thi g h rathe r t han a vital reg ion, this can

rea sonably be explained by the fac t that Br adley was driving awa y when he was shot. The evidenc e is thus sufficient for a

rational fa ctfinder

to infer the r equisite intent. C. Adm ission of the gun Finally , Hudson raises the issue whether admitting th e gu n re co v ere d from his car into evidenc e was an err or that violated his due proce ss rig ht t o a fa i r trial. Errone ously admitting evidenc e under state evidenc e rules amounts to a due proce ss violation in a fede ral h abea s proce eding only in extraordinary case s. Schoenbe rger v. Russell , 290 F.3d 831, 836 (6th Cir. 2002). -15-No. 08-2067

Hudson v. Lafler Fe dera l courts underta

king a habea s revie w of due proce ss claims based on the improper admission of evidenc e must take into acc ount the Supr em e C o u rt ’s warning that “it is not the province of a fede ral habea s court to ree x amine state-c ourt deter minations on state-law questions.” Ege v. Y ukins , 485 F.3d 364, 375 (6th Cir. 2007) (quot i n g E s telle v. McG uire , 502 U.S. 62, 68 (1991))

. The standard of revie w is there fore very defe rential on such claims. Id

. An eviden tiary ruling may violate due proce ss—and t hus war rant habeas relief—only wher e it “is so eg reg ious that it results in a denial of

fundame ntal fairne ss.” Bugh v. Mitchell , 329 F.3d 496, 512 (6th Cir. 2003). “[T]he Supreme Court has define d ‘ver y narr owly ’ the cate g ory of infrac tions that violates ‘funda mental fairne ss.’” Bey v. Bagley , 500 F.3d 514, 522 (6th Cir. 2007) (quoting Dowling v. United States , 493 U.S. 342, 352 (1990))

. Whether admitting “pre judicial evidenc e constitutes a denial of fundame ntal fairne ss turns upon whether the evidenc e is materia l in the sense of a cr u ci al , cr i tical[,] highly signific ant factor.” Brown v. O’Dea , 227 F.3d 642, 645 ( 6th Cir. 2000) (internal quotation marks omitted). Hudson arg ues that admitting the g un rec overe d from his car into evidenc e was an err or that violated his due process right to a fair t rial. He asserts t hat the g un had “a bsolutely no rele vance ”

an d t h at “t here was absolutely no evidenc e linking the g un introduced into evidenc e to the g un alleg edly used in the alleg ed cr i m es . ” Hudson further contends that there was no foundation for admitting the g un, which means that the g un was improperly admitted. Fr om this premise he arg ues that the err oneously admitted evidenc e denied him a fair trial beca use it was the on l y evidenc e besides Br adley ’s t est imony —which Hudson char acte rizes as uncorr oborate d, inconsistent, and “seve rely undermined by

the photog raphic evidenc e”—tha t sugg ested that Hudson had a g un. He -16-No. 08-2067

Hudson v. Lafler contends that the admission of th e gu n was “a cruc ial, critica l, highly signific ant fac tor, in

corr oborating the claim that Mr. Hudson had a g un at the incident and was there fore g uilty of the crimes c harg ed.” Hudson’s claims that the g un had no rele vance and that no evidenc e linked it to the g un used in the robber

y are unpersua sive. The g un and Hudson’s identification wer e found i n t h e trunk of Hudson’s car , and a do-ra g was found in the back seat. Hudson admitted that he was wea ring a dorag at the ATM during the incident in question. These fac ts provide evi d ence to link the g un to Hudson. And there is circ umstantial evidenc e linking t h e gu n rec overe d to the g un used beca use Serg eant Mendoza testif

i ed that the g un was a revolve r, and Br adley said that the g un he was threa tened with was a revolve r. “Evidenc e of a defe ndant’s possession of a wea pon of the kind used in the offe nse with which he is char g ed is routinely det er m i ned by courts to be direc t, rele vant evidenc e of his commission of that offense .” People v . Hall , 447 N.W.2d 580, 583 (Mich. 1989). Hudson may be corr ect, howeve r, that there was not a sufficie nt fo u n dation for the g un’s admission despite its relevanc e. The court in Hall noted that the foundation for a dmitti ng the g un in that case was established in part by the victim’s testimony “that the g un looked like the same g un defe ndant had use d in [t he charg ed] robber y .” Id . There is no analog ous testimony in the prese nt

case . I ndeed, Br adley

—the only person who could have possibly provided simil ar testimony —was

never even show n the g un that was a dmitted into evidence. T h i s ca s e appea

rs m ore analog ous to People v. Kramer , 303 N.W.2d 880 (Mich. C t. App. 1981). No wit ness i n Kramer testified t h at t h e three shot g uns admitted into evidenc e in that case

wer e simil ar to the g uns used in the char g ed crime. Id. at 886. I nstead, a witness test i fi ed that a -17-No. 08-2067

Hudson v. Lafler robber had used “s o me kind of a shotgun or rifle.” Id

. This testimony is simil ar to Br adley ’s testi m o ny that his attacke r used a revolve r. And just as the Kramer court rea soned that the three shotguns “might have been the ones that wer e used,” the gu n re co vere d from Hudson’s car might have been the g un used to shoot Br adley

. Id

. But the Kramer court rea soned that the shotguns, even if slightly probative, arg

uably should have been excluded under Rule 403 of the Michig an Rules of Evidence beca

use the possibili ty of prejudice outweig hed t h ei r p ro b ati ve value. Id

. The court conclude d, howeve r, that reve rsal was not require d even if the admissio n of the g uns constituted

err or beca

use the defe ndants would have been convicted any way bas ed o n the other strong circ umstantial evidence

. Id

. Ba sed on Kramer , the most Hudson can show is that admitting the g un might have amounted

to an err or under the Michig an Rules of Evidence

. This is not enoug h, howeve r, for him to establish the nece ssary due proce ss violation. An evidentiar y ruling that might have violated state rules is, by definition, not an eg reg ious violation of those rules. Nor was the g un a cruc ial o r cr i t ical fac tor in Hudson’s conviction beca use Br adley ’s testimony alone is sufficie nt for a fact fi n d er t o conclude that Hudson had a g un. See Tucker v. Palmer , 541 F.3d 652, 658 (6th Cir. 2008) (“[T]his Court has long held that the tes timony of the victim alone is co n s t i t u t ionally sufficie nt to sustain a conviction.”)

. To be sure, an err oneousadmission-of-e vidence claim is differ ent than a sufficie ncy -of- evidenc e clai m . Bu t when fede ral

courts decide whether a state evidentiar y err or amounts to a due proce ss violation, they consider the

stren gt h o f t h e other evidenc e of g uilt. See Ege v. Y ukins , 485 F.3d 364, 376-78 (6th Cir. 2007) (re asoning that the court must assess the streng th of t h e other evidenc e to decide whether the -18-No. 08-2067

Hudson v. Lafler evidentiar y err or rose to the level of a due proce ss violation). Conclusions about the sufficie ncy of the other evidenc e are rele vant in assessing this fac tor and i n d ec i d ing whether the challeng ed evidenc e is a cruc ial or critica l fac tor in the conviction. Brown v. O’De a , 227 F.3d 642, 645 (6th Cir. 2000) (holding that the challeng ed evide n ce was not a cruc ial or critica l fac tor in the petitioner’s conviction, i n part because the s tate court had twice conclude d that the ot her evidence ag ainst the petitioner wa s sufficient to justify his conviction). Moreove r, Hudson’s relianc e on Snowden v. Singletary , 135 F.3d 732 (11th Cir. 1998), does

not streng then his arg ument. T h e ch all eng ed evidenc e in Snowden , a child-abuse case , was the expert witness’s testimony “t h at 9 9

. 5 % o f children tell the truth and that the expert, in his own experience with c hildren, had not persona lly encounte red an instance wher e a child had invented a lie about abuse.” Id. at 737. The Eleventh Circuit had sever al conce rns about this testimony

. First, the improper nature of this evidenc e could “har dly be disputed” beca use it invaded the province of the jury by direc tly bolstering the cre dibilit y of the victims. Id

. at 738. The testimony was also

s t resse d by the prosecutor “[ o]ver and over ag ain.” Id

. Finally , “[t] he case ag ainst Snowden wa s based a lmost entirely

upon the stories told by three , y oung -childre n witnesses.” Id

. Acc ording ly , the court conclude d that allowing the expert to boost the cre dibilit y of the children victims throug h his testimony

violated Snowden’s r ight to due pr ocess. Id. at 739. This c ase is disting uishable fr om Snowden . I n Snowden , the cha lleng ed evide nce not only told the jury that the children wer e extremely likely to be cre dible; it also provided a mathematica l numb er for how cre dible the children wer e li kely to be. The challeng ed evidence (the gun) in the prese nt case is both qualitatively and quantit at i v el y d i ff ere nt. Admitting the g un did not speak -19-No. 08-2067

Hudson v. Lafler direc tly to the cre dibilit y of Br adley and thus did not invade the province of the fac tfinder. Rather, admit t i n g t h e g un bolstered the cre dibilit y of Br adley indirectly by corr oborating a detail of his testimony —the fac t that a g un was prese nt—that makes it more likely that his testimony is truthful. The fac tfinder, howeve r, was still fre e to draw his own conclusion as to how much that corr oborative detail bolstered Br adley ’s cre dibilit y . Another differ ence is that the admitted g un in this case might have been improper, wh er ea s t he improper nature of the expert’s testimony in Snowden could “har dly be disputed.” Id . at 738. The g un as an admitted exhibi t was also not extensively discussed at trial. Serg eant Mendoza descr ibed the g un and wher e he g ot it from, and Hudson answe red a few questions about it. Unlike the prosec utor in Snowden , who constantly mentioned the expert’s testimony , the prosec utor in this

case did not ref

er to the g un over and over ag ain. The prosec utor in fac t never claimed that the g un admitted was the g un used to shoot Br adley

. And finally , other evidenc e besides Br adley ’s testimony supported the case ag ainst Hudson. Key among this other evidenc e is that Hudson himself admitted being at the ATM with Bra dley on the night in que stion, plus the undisputed fac t tha t B radle y was shot as he pulled awa

y from the ATM. And the far -fe tched nature of Hudson’s version of the events also likely serve d to enhanc e t h e Br ad ley ’s cre dibilit y . The other evidenc e in this case is thus strong er than the other evidenc e in Sn o w den . S o unlike the challeng ed evidenc e in Snowden , admitting the g un here did not make Hudson’s trial fundame ntally unfair. The trial court’s decision to admit the gun the ref

ore did not amount to a due proce ss violation that warra nts habea s relief

. Hudson also arg ues that his trial counsel provided ineffe ctive assistance by failing to object

to the admission of the g un. The g overnme nt appea rs t o m i s construe this arg ument’s purpose as -20-No. 08-2067

Hudson v. Lafler being a separ ate basis for relief , rathe r than as an attempt by Hudson to demonstrate the “ca use” and “pre judice” nece ssary to ov er come the proce dural bar cre ated by failing to contempora neously object. I n any event, Hudson cannot preva il on an ineffe ctive-a ssistance-of -counse l claim beca

use

a COA was not g rante d on this issue. See Phillips v. Bradshaw , 607 F.3d 199, 205 (6th Cir. 2010) (holding that habea s claims for which a COA has not been g rante d ar e n ot proper ly befor e this court). III. CONCLUSION For all of the re asons set for

th above, we AF F IRM the judg ment of the district cour t.

-21-