NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1234n.06 No. 11-1559 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

KEVI N TROY B OND, Petitioner-Appellant,

v. GREG MCQUI GGAN, War den, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: GI L MAN, GI BB ONS, and ROGERS, Circuit J udg es. ROGERS, Circuit J udg e. Petitioner Kevin Troy Bond seeks habea s relief from his convictions in Michig an state court on ten counts, including first-deg ree preme ditated murder. Bond challeng es the sufficie ncy of the evidenc e, alleg es prosec utorial misconduct, and contends that his trial counsel rende red ineffe cti v e assi stance

. The Michig an Court of Appea ls considere d and reje cted eac h of these claims. Be cause Bond has not established that the state court’s decision
contravened or unrea sonabl y ap p l i ed clea rly established fede ral law, his claims do not war rant habea s relief

. This case arose from a drive-by shooting that took place on J uly 19, 2004. Acc ording to the state, Bond and sever al other men eng ag ed in the shooting on the north side of Sag inaw, Michig an, in appar ent reta liation for t h e J u l y 1 8 t h murder of Bond’ s best friend, Omar McKnig ht. At trial, witnesses testified that the day afte r McKnig ht was killed, Bond and others g ather ed at McKnig ht’sNo. 11-1559

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mother’s house. After

war ds, Bond and fi v e o t hers beg an driving around Sag inaw. The other passeng ers in the van testified that Bond expressed his desire to seek retribution for Omar’ s killing. As they drove through north-side S ag inaw, they passed a g roup of y oung men attempting to jump
start a car beside the road. Bond alleg edly urg ed the driver to turn the van around. The driver turned and slowed the van as they approa ched the men by the stalled car . The state alleg ed that Bond was

arme d with a g un, that Bond and three others beg an shooting at the men as they passed by , and that Bond continued shooting throug h the rea r window even as the van sped awa y . Nicholas Gre en was shot mult iple times and died of massive inter nal bleeding

. At trial, Bond’ s version of events differ ed in sever al respe cts. He claimed that he had enter ed the van to g et a ride to his g randmother ’s house, which was only a ten-minute drive from McKnig ht’s mother’s house. He also denied possessing or shooting a g un at any point, and denied knowing that others in the van pla nned to shoot any one. He claimed t hat he was “shocke d” whe n others in the van beg an firing

. He also denied making any statements about seeking retribution for Omar McKnig ht’s murder. The jury never theless fo u nd Bond g uilty on all counts, and he was sentenc ed to multiple life terms in prison. Be fore th e Michig an Court of Appea ls, Bond raised the same three claims he raises in his habea s petition. Rejecting these arguments, the court aff irmed his conviction. The court deter mined that, when viewed in the light most favor able to the prosec ut i o n , t h e ev idence ag ainst Bond was sufficie nt to establish the preme ditation and deliberation elements require d to convict him of firstdeg ree murder. I n the court’s view, the testimony of Bond’ s acc omplices in the van, along with the

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circ umstances surrounding the shooting, established Bond’ s motive a nd intent to commit violence ag ainst individuals from North Sag inaw. Reviewing for plain err or, the court also deter mined that the p ro s ec u t o r did not eng ag e in p r ejudicial misconduct beca use (1) the prosec utor attempted to avoid unnece ssary “ g a n g ” r e f e r e n c e s , (2) evidenc e of Bond’ s prea rre st silence was proper ly admissible, and (3) Bond opened the door to full development of his post-arr est demea nor (includi ng his ref

usal to answe r questions) when he

cre ated a false impression that h e had cooper ated with law enfor ceme nt. Finally , revie wing for

err ors appa

rent in the trial r ecor d, the cour t held that Bond’ s trial counsel was not constituti onally ineffe ctive beca

use counsel could not be faulted for failing to raise meritless objections to the prosec uto r’ s alleg edly prejudicia l conduct. The Michig an Supreme Court denied Bond leave to appea l. Bond then filed a pro se habea s petition in fede ral district court, which the mag istrate judge

rec ommended denying. The mag istrate judge conclude d that t h e M ichig an Court of Appea ls

rea sonably applied the test in Jack son v. Virginia , 443 U.S. 307, 324 (1979), in finding the evidenc e sufficie nt to supp ort the verdic t. On the prosec utorial-misconduct claim, the mag istrate judge conclude d that the Michig an Court of Appea ls rea sonably held that (1) the “g ang ” ref ere nces did not

cre ate any unfairne ss at trial, (2) comments on Bond’ s prea rre st silence did not violate clea rly established fede ral law beca use the Supreme Court has not direc tly addre ssed the issue of prea rre st silence, and (3) comments on Bond’ s post-arr est silence wer e permitted under the Doyle exception

. See Doyle v. Ohio , 426 U.S. 610, 620 n.11 (1976). Finally , the mag istrate judge conclude d that the

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ashington , 466 U.S. 668 (1984), in f inding that Bond’ s counsel’s perf ormanc e was not objectively defic ient and that any defic iency did not prejudice Bond. The district court adopted the mag istrate judge ’s rec ommendation and denied Bond’ s habea s petition. This appea l followed. Under the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (AEDPA) , “an application for a writ of habea s corpus on behalf of a person in custody pursuant to the judgme nt of a State court

s h al l not be g rante d with respe ct to any claim that was adjudicate d on the merits in State cou rt proce eding s unless the adjudication of the claim—(1) resulted in a decision that was contra ry to, or involved an unrea sonable application of, clea rly established Fe der al law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fac ts in light o f t he evidenc e prese nted in the State court proce eding .” 28 U.S.C. § 2254(d). The Supreme Court has indicated that the standard of “contr ary to, or involv[ ing]

an unre asonable application of, c lear ly established Fe dera l la w” is “ difficult to meet,” be cause the purpose of AEDPA is to en sure that fede ral habea s relief functions as a “g uard ag ainst extreme malfunctions in the state criminal justice sy stems and not as a me ans of err or corr ection.” Gree ne v. Fisher , 132 S. Ct . 38, 43 (2011). Bond’ s attack on the sufficie ncy of the evidenc e is not persua sive beca use he fa ils to show (1) that the ey ewitness acc ount of Dilanjan Miller—one of the other men in the van—is unreliable

as a matter of law, or (2) that the evidenc e is constitutionally insufficient to sustain the verdic t. Bond would be entitled to habea s relief only if the state court’s deter mination that the eviden ce was

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sufficie nt contravene d or unrea sonably applied fede ral law, which dictates that evidenc e is constitutionally insufficient only when the revie wing court deter mines, afte r viewing the rec ord in the l ight most favor able to the prosecution, that no rational trier of fact could have found proof of g uilt bey ond a rea sonable doubt. See Jack son , 443 U.S. at 324. Bond argues that beca use Miller’s testimony conflicte d with the phy sical evidenc e and undisputed fa cts in the ca se, it was unre liable

as a matter of law, but this argument misreads the law. Testimony is deeme d “incr edible as a matter of law only

under e x traordina

ry circ umstances, whe n it is so unbelievable on its fac e that it defie s phy sical laws.” United States v. Ree d , 7 1 5 F.2d 870, 874 (5th Cir. 1983). I n this case , Miller
t es t i fi ed that only two men fired g uns, while t he ballis tics expert testified t hat four g uns had been fired. Bond err oneously insists that this a ppare nt c ontradiction established that Miller’s testimony

was unre liable, but the jury and state a

ppellate c ourt found other wise. Under AEDPA, we must defe r not only to the judgme nt o f t h e j u ry in evalua ting and

cre diting Miller’s testimony , but also to the Michig an Court of Appea ls in aff irming the verdic t that was ba sed par

tly on that evidenc e. Although the ballistics ex pert c ontradicte d Miller’s testimony , the jury could have believed Miller and reje cted the ballistics expert, or the jury could have believed that Miller saw Bond firing a g un even if Mil l er wa s mistaken about how many g uns wer e being fired. Bond has not shown that Miller’s testimony was so incre dible as to require us to overturn both the jury ’s cr edibility

deter mination and the state a

ppellate c ourt’s judg ment aff irming the verdic t. I n addition, the evidenc e ag ainst Bond is not insufficient beca use “the testimony of a single ,
uncorr oborate d prosec uting witness or other ey ew i t n es s is g ener ally sufficie nt to support a

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conviction.” Brown v. Davis , 752 F.2d 1142, 1144 (6th Cir. 1985). Even if Miller’s testimony was the only evidenc e direc tly implicating Bond in the shooting, the evidenc e would not nece ssarily be insufficient as a matter of law. We have long held “that t h e t es t i mony of [a] victim alone is constitutionally

sufficie nt to sustain a conviction.” Tucker v . Palmer , 541 F.3d 652, 658 (6th Cir. 2008). And as the Supreme Court stated long ag o in Caminetti v. United States , “ther e is no absolute rule of law preve nting convictions on the testimony of acc omplices if juries believe them.” 242 U.S. 470, 495 (1917). B ond’s evidentiar y insufficienc y

argument does not war

rant ha beas r elief. Wit h respe ct to Bond’ s prosec utorial-misconduct claim, the state argues t h at this claim is proce durally defa

ulted beca

use Bond failed to object at trial as requir ed by Michig an’s contempora

neous-objec tion r

ule. Since addr essing the proc edura l defa ult arg ument require s us to examine the merits of Bond’ s ineffe ctive-a ssistance claim, which in turn may require us to deter mine whether the prosec utor committed any misconduct, we will addre ss th e m er i t s of the misconduct claim direc tly

. 1 B o n d ’ s p r o s e c uto rial-misconduc t claims are unpersua sive beca use he has not establishe d th a t the alleg ed mi sconduct “so infec ted t he trial with unfairne ss as t o make the resulting conviction a denial of due proce ss,” as require d for a constitutional prose cutorial-misconduc t c laim. Darden v.

Wh il e a fe der al cou rt gener al ly m ay not con si der a cl ai m for hab eas re li ef tha t wa s r ej ect ed b y a 1 st at e cou rt for fa il ure to comply wit h the st at e’ s pro ced ura l rul es, see Harg rav e v. Y uki ns , 374 F.3d 383, 387 (6t h Cir

. 2004 ) (c it ing Harr is v. Ree d , 489 U.S. 255, 262 (19 89) ), in thi s cas e, Bond cl ai m s tha t his tr ia l cou nse l’ s ine ff

ect ive ass is ta nce est abl is hes cau se and pre j udi ce to exc use the def

aul t, see Gir ts v. Y

anai , 501 F.3d 743, 755 (6t h Cir

. 2007 ). Beca use Bond’ s pro sec uto ri al

- m is con duc t cl ai m is m er it le ss, we do not nee d to re ach th e i ssu e of

whet her it was pr oce dur al ly def aul te d.

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W ainwright , 477 U.S. 168, 181 (1986) (quoting Donnelly v. De Christ oforo , 416 U.S. 637, 643 (1974))

. Bond’ s argument that the prosec uto r i m p roperly made numerous “g ang ” ref ere nces is meritless beca

use the Michig an Court of Appea ls rea son ab l y conclude d that, when viewed in context, these g ang ref

ere nces did not prejudice Bond. In deter mining whether the al leg ed impropriety amounts to a constitutional violation , we must consider “(1) the likelihood that the

rema rks would mislead the jury or prejudice the acc used, (2) whether the rema rks wer e isolated or extensive, (3) whether the rema rks we re deliberately or accidenta lly prese nted t o the j ury , and (4) whether other evidence ag ainst the defendant was substantial.” Bowling v. Parker , 344 F.3d 487, 512-13 (6th Cir. 2003). Under this standard, the p rosecutor’s comments did not rende r the trial fundame ntally

unfair. Severa l ref

ere nces to g ang s appea

r on the rec ord, y et all but one wer e isolated wi t n es s ref ere nces unsolicited by the prosec utor—and in the one instance when the prosec utor used the term, it was in response to a witness. At a pretria l confe renc e, the prosec utor told the court, with respe ct to making g ang ref

ere nces, “I don’t intend to use that terminolog y in any ty pe of excess, but it could

come up,” to which the court responde d, “Te ll y our witnesses not to use it. Okay .” Howeve r, ear lier in the same exchang e, the court ag ree d to allow the prosec utor to explore t h e gen er al theme of territoria l animosity as a potential m o t i v e for the shooting. During the redire ct examination of Dilanjan Miller, the prosec utor asked, “And in y our experience of living in Sag i n aw , is there any ty pe of, y ou know, territoria l or neig hborhood disputes in Sag inaw? ” The witness responde d, “Y e a h,

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y eah, North Side and East Side g ang s.” I n a second exchang e, when asked whether there was “any ty pe of dispute or hard fee lings betwee n people who live in one neig hborhood versus an o t h er ” in Sag inaw, witness Rahee m Nash responde d, “Ga ng people,” and when asked t o el aborate, he responde d, “Te rritory .” A third ref ere nce arose when a police detec tive, in descr ibing a local drug and g ang unit, testified, “Safe Streets is a g roup of people that handles the drug and g ang activity .” I t is unlikely that these few instances wher e the word “g ang ” was uttered misled or prejudice d the jury , beca

use the g ang ref

ere nces wer e neither extensive nor deliberate, and they did not cre ate

a sustained patter n o f misconduct. Moreove r, plentiful witness testimony , independe nt of g ang ref ere nces, implicated Bond. At no point did the prosec utor or any of the witnesses direc tly state or

even sug g est that Bond was a member of a g ang ; the prosec utor raised the issue of tension betwee n North-Side and E ast-Side Sag inaw only to provide the juror s with context for the shooting

. Bond also err s in arguing (1 ) t h at the prosecutor i mproperly used Bond’s prearr est silence

as substantive evidenc e of g uilt, in violation of h is F if th Amendment rig ht ag ainst self-inc rimination, and (2) that becaus e the state court did not proper ly addre ss the prosec ution’s use of his prea rre st silence a s substantive evidenc e of guilt, we must review the c laim de novo

. We apply AEDPA defe renc e to the Michig an Court of Appea ls’ judgme nt with respe ct to this i ssue beca

use the state court sufficie ntly addre ssed Bond’ s claim that the prosec ution improp er l y used his prea

rre st silence as substantive evidenc e of his g uilt. Bond argues that the court considere d the prosec ution’s use of his prea rre st silence only in the context of impeachme nt. Although the case law cited in the court’s o p i n i o n conce rned the use of prea rre st silence for i mpeac hment purposes,

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the court’s analy sis was not so limit ed. I nstead the court found t h at Bond’ s prea rre st silence was admissible “[b] eca

use [ Bond] was not under arr es t in the face of an accusa tion at t he ti me he was questioned” and rema ined silent. This analy sis clea rly applies to Bond’ s argument that his prea rre st silence could not be used a s substantive evidenc e of guilt. W e therefor e apply AEDPA defere nce to this claim that the state court c onsidered a nd reje cted. 2 Under AEDPA, Bond’ s claim does not entitle him to relief beca use the Supreme Court ha s expressly declined to consider “whe th er o r under what circ umstances prea rre st silence may be protec ted by the Fifth Amendment.” Jenk ins v. Anderson , 447 U.S. 231, 236 n.2 (1980). Since we may g rant habea s relief only when the state adjudication of the fede ral claim “re sulted in a decision that was contra

ry to, or involved an unrea sonable application of, clea rly established Fe dera l law, as deter mined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)( 1), it would be improper to g rant habea s relief on an issue of fede ral law that the S u p re m e Court has not y et addre ssed. I n Jones v. Trombley , we held that the petitioner was not entitled to habea s relief beca use the state court’s reje ction of his c laim w as not ba sed on an unrea sonable interpre tation of the fa cts

or o n a n u n r e a s o n a b le a p plication of controlling Supreme Court prec edent, since the constitutionalit y of using a defe ndant’s pre- Miranda silence as substantive evidenc e of g uilt had not been addre ssed by the Supreme Court. 307 F. App’x 931, 932–33 (6th Cir. 2009). Simi larly , in Mitchell v. Lafler ,

Alt er nat ively, AEDPA def er enc e app li es bec aus e we have squ ar el y end ors ed the view tha t “ a 2 fe der al con st it uti ona l cl ai m re viewed by a st at e cou rt for ‘pl ai n er ror ’ can be con si der ed ‘a dj udi cat ed on the m er it s’ for the pur pos e of re cei ving def er enc e unde r AEDPA.” Fle ming v. Me tr is h , 556 F.3d 520, 532 (6t h Cir . 200 9)

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we h el d t h at “[n] otwithstanding [ the S ix th Circuit’s] holding in Combs that prea rre st silence may merit Fifth Amendment protec tion, Section 2254(d)’ s defe rential standard does not allow for habea s relief in the absenc e of Supreme Cou rt p re cedent.” 118 F. App’x 24, 27 (6th Cir. 2004) (citing Combs v. Coyle, 205 F.3d 269, 283 ( 6th Cir. 2000). Bond also err s in arguing that the prosec utor committed misconduct by commenting on his postarre st silence. The Michig an Court of Appe al s re as o nably conclude d that the prosec utor’s

comm en t s , when viewed in context, fell within the Doyle exception. Two comments are at issue here

. First, during his direc t examination of Detec tive Sandra Paetz, the prosec utor asked, “So it was only when he lear

ned that y ou wer e there to talk about the murder that he decide d he didn't want to talk to y ou? ” to which P aetz responde d, “Tha t’s corr ect.” In his closing argument, the prosec utor summarized the same encounte r: “The police went over to the jail once [Bond] was place d there by another judge in a differ ent case . . . and tried to talk to him, and advised him of all of his rig hts, and he g ave up those rig hts. And then as soon as he found out that the topic that the detec tives wanted
to talk about with him was the murder, g et out of here , I ’ve g ot n o t h i ng to say to y ou. That’s the truth. That’s the truth.” Although it is g ener ally improper for a prosecutor to comment on a defenda nt’s postarre st silence, “postarr est silence could be used by the prosec ution to contra dict a defe ndant who testifies
to an exculpatory version of events and claims to have told the police the same version upon arr est.” Doyle , 426 U.S. at 620 n.11. On cross-e x amination, Bond volunteere d, in response to an unrela ted question, the fac t that he turned himself in to the police and wanted to talk to them. This testimony

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fit in w ith a

n overa ll defe nse strateg y in which Bond portray ed himself as an ignor ant by stander to the shooting; he testified that he was prese nt in the van only to g et a ride to his g randmother ’s house,

was unarme d, had no idea that the others wer e planning a drive-by shooting, and was “s h ocked” when the shooting occur

red. I n keeping with this theme, Bond attempted to cast his police interview

as an eff ort to coope ra t e with the i nvestig ation. Bond’ s attempt to portray himself as cooperative clea rly opened the door to the prosec utor’s qu es t i o n s challeng ing his defe nse theory , and the Michig an Court of Appea ls rea sonab l y co n cluded that Bond’ s misconduct claim relies on a misreading of Doyle

. Finally , Bond’ s ineffe ctive-a ssistance claim is meritless beca use the M i ch i gan Court of Appea ls reasona

bly conclude d that Bond’ s counsel’s pe rfor mance was not defic ient. To establish ineffe ctive assistance under Strickland , Bond must show (1) t h at counsel’s perf ormanc e was objectively defic ient, and (2) that the defic ient perf ormanc e prejudice d the defe nse, ren dering the proce eding fundame ntal ly unfair and unreliable

. 466 U.S. 668, 687 (1984). I n revie wing an attorney ’s per formanc e, we must consider “whe ther there is any rea sonable a

rgument that counsel satisf i ed Strickland ’s defe rential standard.” Harrington v. Richter , 131 S. Ct. 770, 788 (2011). Be cause Bond claims that h is counsel was ineffe ctive for failing to object to the prosec utor’s miscond u ct , the succe ss of his ineffe ctive-a ssistance claim depends on the succe ss of his p r o s e c uto r ia l- mi s c onduct claim. As discussed previously , the Michig an Court o f A p p e a ls r e a s o n a

b ly conclude d that Bond’ s prosec utorial-misconduct claims wer e meritless; there fore the court was also

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rea sonable in concluding that Bond’ s counsel’s failure to object did not con s t i t u t e defic ient perf ormanc e under Strickland

. See B radley v . Birkett , 192 F. App’ x 468, 475 (6th Cir. 2006). Since Bond has failed to meet the firs t p ro ng of the Strickland test, we need not rea ch the second prong . See Strickland , 466 U.S. at 6 9 7 (“[T]here is no rea son for a court deciding an ineffe ctive assist anc e claim to

. . . addre ss both components of the i nquiry if the defendant makes an insuffic ient showing on one.”) . I n sum, Bond’s inef fec tive-assistance claim is unpersua sive. The district cour

t’s judgme nt is affirmed.

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