NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0619n.06
No. 11-6276
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

GA RNER DWIG HT PAD GETT
P etitioner -Appellant,

v. DAVID SEXTON, Warden Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM TH E UNITED STATE S DI STRICT COURT F OR THE MIDDLE DISTRICT OF TENNESS EE

Before: G IBBO NS and WHITE , Circuit Judges; and COHN, S enior Distric t Judge. *
JULIA SMITH G IBBO NS, Circuit Judge. Gar ner Dwig ht Padg ett appea ls the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, Padg ett

was convicted of first-deg ree murder and sentenc ed to a term of life imprisonment. Tenne ssee state
courts aff irmed Padg ett’s conviction on direc t appea l and denied him post-conviction relief

. Padg ett
arg ues that he is entitled to habeas relief on four g round s : (1) his confe ssion was not knowing ly , intelligently , or voluntarily made; (2) the jury was tainted when two jurors observe d him exit ing the courthouse lock-up; (3) the prosec utor made an unsupported accusa tion d u ri n g closing arg ument; and (4) he was denied the eff ective assistance of post-conviction counsel. We af fi rm t h e d istrict court’s de nial of Padg ett’s habeas petition.

The Honora

ble Aver n Cohn, Senior United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation.Padgett v. Se xton No. 11-6276 I.
I n Marc h 2001, the body of Matthew Eric Smit h was found in a rem o t e wo o d ed are a in
Putnam County , Tenne ssee. I nvestig ators int ervie wed Padge tt reg arding Smit h’s death on Marc h
24 and 27. During the second interview, Padg ett confe ssed to shooting and killing Smit h, who was having an af

fair w ith Padge tt’s wife. Padg ett was c harg ed with first-de g ree murder.
A. Padg ett filed a pre- t ri al m o t ion to suppress his statements and any evidenc e derive d as a result of them, arg

uing that he was incapa

ble of k n o wi n gl y , intelligently , and volunt arily waiving his Miranda rig hts due to his below-nor mal intelligenc e level, bipolar disorder, and substance abuse issues. The trial c ourt held an e videntiary hear ing on Ma

y 23, 2002. The State prese nted testimony from the investig ators who inter viewed Padg ett, Ag ent Bob Krofssik of the Tenne ssee Bur eau of I nvestig ation and Detec tive J err y Dale Abston of the Putnam County Sheriff’ s Depa

rtment. They testified that Padg ett rec eived Miranda war nings and signe d a waiver befor e eac h interview. They stated t h at they did not promise Padg ett leniency if he spoke with them or threa ten him if he did not cooper ate. They also testified t hat, during eac h interview, they permitted Padg ett to take cig are tte and drink bre aks.
On Marc h 24, 2001, the investiga tors interviewe d Padg ett afte r he was arr ested on a theft char g e. They testified that Padg ett said he had been drinking that day but claimed that he was sober at the time he spoke with them. Abston testified that Padg ett told them he was bipolar but denied needing trea tment. The investiga tors claimed that Padg ett “looked fine” and appea red “norma l,” not

2Padgett v. Se xton No. 11-6276 “fe arf ul or scar ed or nervous in any way .” They interviewe d Padg ett from 10:47 p.m. to 1:37 a.m., and Kr ofssik took a statement fr om Padge tt, which Padg ett revie wed a nd signe d.
On Marc h 27, the investiga tors interviewe d Padg ett while h e w a s in c u s to dy

. Abston testified that Padg ett did not exhi b i t sy mptoms of withdrawa l from drug s or appea r to be in need of medication. Krofssik said that Padg ett informed him that he was not taking presc ribed medication, but that th i s d i d n o t aff

ect his understanding of t heir conversa tion. The investigators interviewed Padg ett from 8:32 p.m. to 10:28 p.m. Krofssik took a statement from Padg ett, which Padg ett signe d. The investiga tors testified that afte r an hour-long brea k, Padg ett said that he wanted to make another

statement. They started in t er viewing Padg ett at 11:38 p.m. At about 12:30 or 1:00 a.m., Padg ett confe ssed to killing S mith. Krofssik questioned Padg ett and crafte d his answe rs i nto a stateme nt, which Padg ett signe d. The intervie w ende d at 4:55 a.m.
At the evidentiar

y hear ing, the defe nse prese nted Dr

. E ri c S

. Eng um, who testified that Padg ett suffe rs from bipolar disorder, with a history of alcohol and poly substance depende nce. He said that at the time that investiga tors interviewe d Padg ett, he suffe red from bipolar disorder, “wa s drinking in excess vi rtually on a daily basis,” and “wa s g oing throug h alcohol withdrawa l,” conditions that Eng um said wer e exacer bated by sleep depriva tion on the night of hi s confe ssion. Eng um conclude d that Padg ett’s conditions “would seriously raise a question in [hi s] mi n d as to whether [P adg ett] was able to make a voluntary

waiver .” Padg ett also testified as to his history of mental illness, drug , and alcohol abuse. He said that

on Marc h 24, he drank a g allon of whiskey and used methamphetamine. He claimed that he did not

reme mber speaking with Krofssik and Abston on that date. Padg ett testified that he “[s] omewhat” 3Padgett v. Se xton No. 11-6276

reme mbere d speaking to investiga tors on Marc h 27 but that he was in “[t] err ible shape” and “was seeing s n ak es i n m y walls and spiders coming out of my drain.” Padg ett said that when he was smoking cig are ttes with investiga tors in a st airwell, Krofssik rema rked that “[i] t was a long way s down” the stairs, which Padg ett interpre ted as a threa t to “throw [hi m] down the stairway .” Padg ett said that the statements taken by Kroff sik wer e incorre ct, but he signe d them beca use he was scar ed. The trial court cre dited the investiga tors’ testimon y o v er Padg ett’s, noting that Padg ett
appea red to have “some selec tive loss of memory .” I t denied Padg ett’s suppres s i o n m o t ion,

rea soning:
I suppose we are dealing with a question of the voluntariness of a confe ssion and the totality of circ umstances is the standard. Under the circ umstances of how the statement wa s alleg edly

made on the 27th, ther e would be nothing to indica te from the testimony of Mr. Padg ett or from the t estimony of the office rs that something transpire d that would over bear the will of the acc used in this case in some sort of a threa tening way .

. . . . I don’t think any

body can dispute the diag nosis. I cer tainly can’ t. I ’m not in any way qualified to make any sort of diag nosis of any body ’s mental condition. But that in itself does not r ender any statement g iven to be involuntary or any waiver to be unknowing

. And all the proof here that I ’ve hear d this morning would in d i ca te that the defe ndant understood his rig hts. He waived his rig hts. And he g ave a statement and s i gn ed o ff on those rig hts. He say s he didn’t rea d them. They didn’t rea d t h em t o him. They

say they did. And from the totality , as we use the term, the circ umstances would indicate to me that there was a volunta ry and knowing waiver of the rig hts and a voluntary statement g iven. So I would deny y our motion to suppress.
On October 1, 2002, Padg ett’s case p ro ce eded to trial. At trial, Padg ett’s Marc h 27 confe ssion was rea d to the jury

. Ralph Br y ant, with whom Padg ett worke d on a construction projec t,

4Padgett v. Se xton No. 11-6276 and Connie B ry ant, Ralph’s wife , testified that P adg ett told them wee ks befor e Smith’s death that he planned to kill Smit h. The State also introduced a .22-ca liber Br owning automatic pistol that was found in the are a wher e Padg ett told investiga tors that he had disposed of the wea pon. Steve Golden identified t h e p i s t ol as his g un, which Padg ett told investiga tors that he had stolen from Golden

wee ks befor e the shooting . The de fense did not offer any testimony

at trial.
B. On the first full day of trial, jurors observe d Padg ett being transporte d from the courthouse lock-up. A juror asked Orbie Goff, a courthouse employ ee, what was behind a door. Goff opened the door and allowed three jurors to step inside the holding cell are a. Goff explained that prisoners took a n eleva tor from the courthouse jail up to the holding cell are a. Whil e two of the jurors wer e exit ing the holding cell are a, Bo Sherrill, a corr ections office r, broug ht Padge tt up on the elevator

. J uror Dora Simps on turned and saw him. Sherrill closed the door when he rec og nized the juror and later estimated that the door was open for “[n] o more than ten seconds.” J uror J ames Simm ons also said that he saw Padg ett. Simps on and Simm ons admitted that they discussed the incident with other jurors. Padg ett’s counsel moved for a mistrial. The trial court denied the motion b u t s ai d that it would issue a cura tive instruction. Padg ett’s counsel opposed the instruction, arg uing that it would draw more a ttention to the fact that Padg ett was inca rce rate d. The trial c ourt instructed the jury : L et m e ask the j ury in reg ards to some matters t h at h ave come up during the l unch brea k. There was oc casion to wha t we re fer to as t he holding cell ar ea w as opene d and one or t wo j urors then had stepped in just to observe the lay out of the bui lding and unawa

re that the acc used might be in there and there was some observa tion made by a couple of jurors at least say ing that they observe d the acc used. And I ’m g oing
5Padgett v. Se xton No. 11-6276
to ask y ou to disreg ard. I must say that it every body and then may

be y ou all know it now, but if y ou don’t, I g uess I ’m telling y ou n ow and then I ’m asking y ou to disreg ard it. And cer

tainly it’s not unusual in a criminal case and it is customary for a person once they are acc used of a crime to be arr ested and place d under bond and awa it trial. People make bonds; people don’t make bonds depending on a lot of things. The bond was set and the acc used in this case , Mr. Padg ett, was broug ht up from the lock-up are a and y ou should place no s i gn i fica nce of the fac t that he is incar cer ated at this time. As I said, it’s not unusual for a person to be incarce rate d until trial. And so I would instruct y ou to disreg ard the fac t that I have now said this and cer tainly don’t let that in any way influence y our verdic t in this case . This c ase should be decide d based upon the fac ts that wer e prese nted from the witness stand. And so if y ou have made the persona l obse rvation or now that y ou’ve told a bout it, y ou should not give tha t any thought or

considera

tion in y our ver dict.
C. During closing arg ument, the prosec utor descr ibed how Padg ett alleg edly drove Smit h to a
remote w ooded ar ea a

nd shot him. He said:
You know, I can’ t—I ’m looking at that scene and I ’m l ooking at those pictures which y ou’ll s ee i n t h e jury room and I can’ t think of a better place to kill somebody

. I t’s ten mile s from nowher e, out in the boonies, and then almost 100 y ards, almost 300 fee t down a dirt road wher e there ’s no chanc e o f b ei ng seen. There ’s no chanc e of having witnesses. I can’ t think of a better place in the whole wide wor ld to take somebody to kill t hem if that’s wha t y our purpose is.
Not a good place t o hide y our dope. People hi de dope off of their property but close to their home. The y don’t have to drive. And i sn’t it interesting too who was doing the driving ? The defenda nt was driving the truck that night and his vic tim wa s in the passeng er seat. And I sug g est to y ou that y ou can assume that the defe ndant was in there at g unpoint being driven to—

6Padgett v. Se xton No. 11-6276 Padg ett’s counsel objected, arg uing that the statement “the defe ndant was in there at
g unpoint” was unsupporte d by evidenc e. The trial court asked the jurors to disre g ard the rema rk, 1 instructing the m to “drawconclusions from the pr oof that y ou’ve he ard.” The jury found P adg ett g uilty of first-deg ree murder, and t he tr i al co u rt sentenc ed P adg ett to life imprisonment.
D. The Tenne ssee Court of C riminal Appea ls aff irmed Padg ett’s conviction on October 21,
2004. I t held that the evidenc e did not preponde rate ag ainst the trial court’s holding that Padg ett’s

statements wer e knowing, intelligent, and voluntary and, there fore , Padg ett’s confe ssion was
proper ly admitted. I t also held that the trial court did not abuse its discretion by ref using to g rant a mistrial afte r j u ro rs o b s erve d Padg ett in custody beca use “ther e is a presumption that the jurors followed the instructions of the trial court and beca use the rec ord does not establish that the defe ndant was unduly prejudice d.” The Court of C ri m i n al Appea ls noted that the prosec utor’s

rema rk during closing arg

ument was improper but nonetheless held that a new trial was not

war rante d beca

use the trial court immediately corr ecte d the err or and there was no evidenc e that the
prosec utor delibera tely attempted to prejudice the defe ndant. The Tenne ssee Supreme Court denied Padg ett’s applica tion for per mission t o appea l on Febr uary 28, 2005. Pad get t filed a pro se petition for post-conviction relief in the trial court, raising sever al claims, including ineffe ctive assistance of counsel. The trial court appointed counsel for Padg ett and

The trial court and the Tenne ssee Court of Appea ls interpre ted the prosec utor to mean that 1 Padg ett held Smith at g unpoint. 7Padgett v. Se xton No. 11-6276 held an e videntiary

hear ing. A t the hear ing, Padg ett’s attorne y prese nted Padg ett as a w itness and asked him to explain his claims but introduced no other evidenc e. The trial court denied Padg ett’s petition on October 17, 2008. The Tenne ssee Court of Criminal Appea ls aff irmed the denial of postconviction relief on J une 22, 2010. The Tenne ssee Supreme Court reje cted Padg ett’s application for permission to appea l on October 18, 2010. On April 5, 2011, Pad get t fi led a pro se petition for a writ of habeas corpus in the di strict

court. The district court denied Padg et t ’s p et i tion on October 11, 2011. Padg ett appea led on October 19, 2011. This court g rante d a cer tificate of appea lability as to all issues raised in Padg ett’s petition.
II.
I n an appeal of a § 2254 habeas action, we revie w t he dis trict court’s leg al conclusions de

novo . Crist ini v

. McKee , 526 F.3d 888, 897 (6th Cir. 2008). “[W] here the district c ourt has made fac tual deter

minations based on its revie w of trial transcr ipts and other court rec ords,” we revie w the district court’s fac tual conclusions de novo . Dando v. Y ukins , 461 F.3d 791, 796 (6th Cir. 2006) (interna l quotation marks omitted).
Be cause Padg ett’s petition was filed af t er t h e eff

ective date of the Anti-Ter rorism and Effe ctive Dea th Penalty Act of 1996 (“AE DP A”) , AEDPA g overns this court’s revie w. Under § 2254(d):
An application for a writ of habea s corpus on behalf of a person in custody pursuant t o t h e j u d gm ent of a S tate court shall not be gra nted wit h respe ct t o any claim t h at was a djudicated on the me rits in St ate c ourt proce eding s unless the adjudica tion of the claim—

8Padgett v. Se xton No. 11-6276 (1) resulted in a decision t h at wa s contra ry to, or involved an unrea sonable application of, clea rly establis h ed Fe dera l 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 of the evidenc e p re s en t ed in the State court proc eeding

. The “contr ary to” and “unre asonable application” clause s of § 2254(d)( 1) have independe nt meaning

. W

illiams v. T

aylor , 529 U.S. 362, 405 (2 000). A s tate court’s decision i s “contr ary to” cl ea rly established fede ral law if it “applies a rule that contra dicts the g overning law set forth in [S upreme Court] case s” or if it “conf ronts a set of facts that are m at er ially indisti ng uishable from

a d ec i s i o n of [t he Supreme] Court and never theless arr ives at a result differ ent from [t h i s ]
prec edent.” Id. at 405-06. A state court’s deci s i o n i s an “unre asonable 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 par

ticular prisone r’s c ase.” Id. at 407-08. “The ‘unre asonable application’ clause require s the state court decision to be more than incorre ct or err oneous.” Lockye r v. Andrade , 538
U.S. 63, 75 (2003). “The state court’s application of clea rly established l aw m u s t b e objectively

unrea sonable.” Id. The phrase “cle arly established Fe dera l l aw” in § 2254(d)( 1) “re fer s to the holdings, as opposed to the dicta, of [t he Supreme] Cou rt ’s decisions as of the time of the rele vant state-c ourt decision.” W

illiams , 529 U.S. at 412. I n order to d et er m i n e wh et h er a leg al principle has been clea rly established, this court may look to Courts of Appea ls’ decisions “to the extent they illumi nate the analy sis of Supreme Court holding s.” Goodell v. W illiams , 643 F.3d 490, 496 (6th Cir. 2011)

.

9Padgett v. Se xton No. 11-6276 Finally , a s t at e court’s deter mination of fac tual issues “shall be presumed to be corr ect” unless the petitioner rebuts t h i s p resumption “by clea r and convincing evidenc e.” 28 U.S.C. § 2254(e) (1); see, e.g. , Robinson v

. Howes , 663 F.3d 819, 825 ( 6th Cir. 2011). This c ourt revie ws the decision of “t he last state court to issue a reasoned opinion on the i ssue[s] ” raised i n a habeas petition. Joseph v . Coyle , 469 F.3d 441, 450 ( 6th Cir. 2006) . I n this case, we revie w the dec ision of the Te nnessee Court of Criminal Appeals on dire ct re view.
A. First, Padg ett arg ues that the Court of Criminal Appea l s unrea sonably applied clea rly established fede ral law when it conclude d that the Sta t e ca rr i ed its burden of establishing that he validly waived his Miranda rig hts. The Fifth Amendment, which applies to the states by virtue of the Four teenth Amendment, Malloy v. Hogan , 378 U.S. 1, 6 (1964), g uara ntees that “[n] o person . . . shall be compelled in a ny criminal case to be a witness ag ainst himself.” U.S. Const. amend. V. I n Miranda v. Arizona , 384
U.S. 436 (1966), the Supreme Court “e stablished cer tain proce dural safe g uards that require police

to advise criminal suspects of their rig hts under the Fifth an d Fo urtee nth Amendments befor e commencing custodial interrog ation.” Duck worth v. Eagan , 492 U.S. 195, 201 (1989). A suspect must be told “that he has a rig ht to rema in silent, that any statement he does make may be used a s evidenc e ag ainst him, and that he has a rig ht to the prese nce of an attorney , ei t h er re tained or appointed.” Miranda , 384 U.S. at 444. A suspect “may waive eff ectua tion of these rig hts, provided the waive r is made voluntar ily , knowing ly and intellige ntly .” Id.

10Padgett v. Se xton No. 11-6276 A court’s inquiry into the validity of a waiver “has two distinct dimensions.” Moran v. Burbine , 475 U.S. 412, 421 (1986). First, the relinquishment of the rig ht must have been voluntary in the sense that it was the product of a fre e and delibera te choice rathe r than intim i d at ion, coer cion, or dece ption. Second, the waive r must have been made with a full awa rene ss of both t h e nature of the rig ht being abandone d and the conseque nces of the deci s i o n t o abandon it. Id. “Only if the ‘totality of the circ umstances surrounding the interrog ation’ reve al both an

uncoer ced c hoice a

nd the re quisite level of compr ehension may a cour t properly conclude that the Miranda rig hts have been waived.” Id. (quoting Fare v. Michae l C. , 442 U.S. 707, 725 (1979))

. The totality of the circ umstances inquiry require s a court to examine “all the circ umstances surrounding th e in te r r og ation,” including the suspect’s “ag e, experience , educa tion, backg round , a

n d in te ll ig e n c e , and [] whether he has the capa city to understand the war n i n gs given him, the nature of his Fifth Amendment rig hts, and the consequence s of waiving those rig hts.” Michae l C. , 442 U.S. at 725. The State must prove waiver by a preponde ranc e of the evidenc e. Colorado v. Connelly , 479 U.S. 157, 168 (1986). Padg ett arg ues that t he defense witnesses supplied the only evidenc e of the totality -of- thecirc umstances fac tors mentioned in Michae l C. —Padg ett’s ag e, experience , education, backg round and intelligenc e. Padg ett contends that beca use the State offe red no expert testimony to contra dict Eng um’s opinion, the Court of C ri m i n al Appea ls unrea sonably conclude d that the State met its burden of establishing a valid Miranda waiver

. Howeve r, as Michae l C. expli citly states, the list of fac tors in the opinion is not exclu s i v e. Mi chael C. , 442 U.S. at 725. Courts must examine all rele vant circ umstances surrounding an interrog ation to d e te r mi n e w h e th e r a M

ir a n d a waiver is valid. 11Padgett v. Se xton No. 11-6276 Id. The State prese nted ample evidenc e of Padg ett’s phy sical and mental state on the nights that he
was que stioned and of the c onditions i n which he was interrog ated. Krofssik and A bston testified that on Marc h 24 and 27, Padg ett was coher ent and did not appea r to be suffe ring from the ill eff ects of his mental illness or substance abuse. They also testified that they did not attem p t t o coer ce Padg ett by bribing or threa tening him and that they permitted Padg ett to take sever al brea ks during questioning. Ba sed o n t h i s evidenc e, the Court of Criminal Appea ls rea sonably conclude d that Padg ett validly

waived his Miranda rig hts. Padg ett contends that fede ra l ci rcuit courts reg ularly conclude that “evide nce of mental illness, supporte d by expert testimony ” may establish that Miranda rig hts wer e not knowing ly and intelligently waived. Howeve r, the only rele vant question for purposes of habeas revie w is whether the Court of Criminal Appea ls’s decision unrea sonably applied clea rly established fede ral law—that is, the holdings of the Supreme Court. See W illiams , 529 U.S. at 412.
A suspect need not “know and understand ever y p o ssible conseque nce of a waiver of the
Fi ft h Am endment privileg e” in order for his waiver to be knowing and intelligent. Colorado v. Spring , 479 U.S. 564, 5 7 4 (1987). He need only know “that he may choose not to talk to law enfor ceme nt of

fice rs, to talk only with c ounsel prese nt, or to disc ontinue talking at any time.” Id. “[M] ental capa city is one of many fac tors to be considere d” in deter min i n g wh ether a Miranda waiver was knowing and intelligent, but “diminished mental capaci ty alone” does not preve nt a defe ndant from validly waiving his Miranda rig hts. Garner v. Mitchell , 557 F.3d 257, 264 (6th Cir. 2009) ( en banc ) (holding that habeas relief was proper ly denied beca use the petitioner validly waived his Miranda rig hts, notwithstanding expert testimony that he could not have sufficie ntly 12Padgett v. Se xton No. 11-6276 understood the scope of Miranda ’s protec tions). I n order to deter mine whether waiver was knowing and int el l i gen t , “our primary focus must rema in on what the interrog ating office rs could have conclude d ab o u t [ t he defe ndant’s] ability to understand the war nings, [but ] we may consider later- develo p ed ev i d ence of a defe ndant’s actua l mental ability to understand the war nings at the time of the interr og ation.” Id. at 263.
I n this case , Krofssik an d Ab s t o n testified that at the time they interrog ated Padg ett, he
appea red to be coher ent and was not dis play ing noticeable eff ects of his mental illness. They claimed that Padg ett told them about his bipolar disorder but d en i ed needing trea tment. The investiga tors’ testimony that Padg ett “looked fine” and appea red “norma l” on the nights that he was questioned i s not undermined by Eng um’s testimony t h at P ad g ett suffe rs from biopolar di sorder

. The trial court did not dispute Padg ett’s diag nosis but nonetheless found that Padg ett understood his rig hts at the time that he waived him. The Court of Criminal Appea ls held that the evidenc e did not preponde rate ag ainst the trial court’s decision. The Court of Criminal Appea ls did not unrea sonably apply clea rly established fede ral law in deter mining that Padg ett knowing ly and intelligently waived his Miranda rig hts.
B. Padg ett next arg ues that the Court of Criminal Appea ls’s conclusion that a mistrial was not

war rante d beca

use jurors saw Padg ett in custody is contra ry to or an unrea s o n able application of clea rly established fe dera l law. “The rig ht to a fair trial is a fundame ntal liberty secur ed by the Four teenth Amendment.” Estelle v. W

illiams , 425 U.S. 501, 503 (1976). “The presumption of inno cence, althoug h not 13Padgett v. Se xton No. 11-6276 articula ted in the Constit ution, is a basic component of a fair t ri al u nder our sy stem of criminal justice.” Id. As a result, “cour ts must be aler

t to fac tors that may undermine the fairne ss of the fac tfinding proce ss.” Id. A defe ndant “‘is entitled to have his g uilt or innocenc e deter mined solely on the basis of the evidenc e introduced at t ri al , and not on g rounds of officia l suspicion, indictment, continued custody , or other c ircumstance s not adduce d as proof at trial.’” Holbrook v. Flynn , 475 U.S. 560, 567 (1986) (quoting Taylor v. Kentucky , 436 U.S. 478, 485 (1978)). The Supreme Court has considere d whether particula r courtroom policies pose such a threa t
to the fairne ss of the fac t-finding proce ss that they violate a defe ndant’s rig ht to a fair t rial. See Holb r o o k , 475 U.S. at 568-69, 571 (holding that the use of identifiable secur ity personne l in a courtroom dur ing tr ial is not inherently prejudicia l and that, on the fa cts of that ca se, t here was no

unacc eptable risk of prejudice ); Estelle , 425 U.S. at 504-05, 512 (holding that it is unconstitutional for a state to compel a defe ndant to stand trial befor e a jury while dresse d in prison clothes beca use this “fur thers no essential state policy ” and prese nts an unacc eptable risk of aff ecting jurors’ judgme nt); Illinois v. Allen , 397 U.S. 337, 344 (1970) (obser ving that shackling and g ag g ing a defe ndant during trial “mig ht have a signific ant eff ect on the jury ’s fee lings about the defe ndant” but noting that this may

be per missibl e in the ca se of a

disorderly

defe ndant). 2

Padg ett cites Dec k v. Missouri , which held that the use of visible sha ckles during the g uilt 2 and penalty phases of trial violates the Constit ution “ unless that use is ‘justified by an essential state interest’—suc h as the interest in courtroom secur ity —specific to the defe ndant on trial.” 544 U.S. 622, 624 (2005) ( quoting Holbrook , 475 U.S. at 568-69). Dec k was de cided a fter Padg ett’s direc t appea l and, thus, it was not clear ly established fe dera l law at the time the state courts rule d.

14Padgett v. Se xton No. 11-6276 The Supreme Court has not deter mined whether a chanc e occur renc e—spec ifically , a juror’s inadve rt en t sighting of a defe ndant being transporte d by court officia ls—is so prejudicia l that it violates a defe ndant’s rig ht to a fair trial. Thus, the Court of Criminal Appea ls’s decision cannot be
“contr ary to” clea

rly established fe d era l law. See W illiams , 529 U.S. at 405-06. Moreove r, the decision was not an “unre asonable application” of clea rly establi shed fede ral law reg arding a defe ndant’s rig ht to a fair trial. On direc t revie w, we have held that a juror’s sighting of a defe ndant being transporte d is not so prejudicia l that it denies the defe ndant the rig ht to a fair trial. See United
States v. Barger , 931 F.2d 359, 371 (6th Cir. 1991) (h o l d i ng that a defenda nt’s rig ht to a fair t rial

was not violated when a juror saw a co-defe n d an t i n shackle s one morning befor e trial); United
States v. Chipman , 513 F.2d 1262, 1263 (6th Cir. 1 9 7 5 ) ( p er cu r iam ) (holding that a defe ndant’s rig ht to a fair trial was not violated when, at the end of a day of trial, the defe ndant rode in the same eleva tor as the judge and two jurors while handcuf fed and in the custody of a Marsha l); United States

v. Crane , 499 F.2d 1385, 1388-89 (6th Cir. 1974) (holding that a defe ndant was not prejudice d when jurors saw him handc uffe d to a co- defe ndant as he was led into the c ourtroom). The jurors’ sighting of Padg ett in the holding cell are a lasted only a few seconds, and the trial

court quickly issued a cura tive instruction. Padg ett arg ues that the instruction compounded the err or beca use it informed jurors that Padg ett was incar cer ated but failed to t el l t h em “t h at it was for innocent rea sons.” Howeve r, the trial court essentially told jurors this when it stated that defe ndants

are commonly jailed while awa iting trial and that t h ey ca n be held for many rea sons, including failure to post bond. More importantly , the trial court direc ted jurors to assig n no signific ance to the fac t that Padg ett was incarce rate d and to decide th e case based on the evidence presented at trial. 15Padgett v. Se xton No. 11-6276 The Court of Criminal Appea ls held that the tri al co u rt did not abuse its discretion by ref using to
g rant a mistrial beca

use “ther e is a presumption that the jurors followed the instructions of the trial

court and becau s e t h e rec ord does not establish that the defe ndant was unduly prejudice d.” The
Court of Criminal Appea ls’s decision that the jurors’ sighting of Padg ett was not so prejudicial as
to violate Padg ett’s rig ht to a fair trial was not objectively unrea sonable. See Lockye r , 538 U.S. at
75. Finally , Padg ett arg ues that the Court of Criminal Appea ls err ed by failing to ask whether the alleg ed constitutional err or was harmless bey ond a rea sonable doubt, as require d by Cha p ma n v. Calif ornia , 386 U.S. 18 (1967). The court was not require d to ask the Chapman question, beca use it conclude d that no constitutional violation occur red. There fore , the Court of Criminal Appea ls did not fail to apply

clea rly established fe dera l law.
C. Padg ett contends that the Court of Criminal Appea ls’s holding th at t h e p rosecutor’s unsupported rema

rk during closing arg ument did not de ny Padg ett a fair trial was contra ry to or an

unrea sonable a

pplication of cle arly

established fe dera l law. The rele vant question in analy zing a claim of prosec utorial misconduct on habeas revie w is whether the prosec utor’s comments “‘so infec ted the trial with unfa irness as to make the re sulting conviction a denial of due proce ss.’” Darden v. W ainwright , 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974))

. The appropr iate standard of revie w for such

a claim is “ ‘the narr ow one of due pr ocess, a nd not the broad exercise of supervisory power .’” Id. (quoting Donnell

y , 4 1 6 U. S

. at 642). “[N]ot ever y trial err or or infirmity which might call for 16Padgett v. Se xton No. 11-6276 application of supervisory power s corr esponding ly constitutes a ‘fa ilure to observe that fundame ntal fairne ss essential to the very conce pt of justice.’” Donnelly , 416 U.S. at 642 (quot i n g Lisenba v. Calif ornia , 314 U.S. 219, 236 (1941)).
We employ a two-prong test in order to deter mine whether a state court rea sonably applied the fe dera l standard f

or prose cutorial misconduct: First, this court deter

mines whether the prosec ution’s conduct or rema rks wer e improper. I f the answe r is aff irmative, then the court considers four fac tors to decide whether the improper acts wer e sufficie ntly flag rant to war rant reve rsal: (1) whether t he evidenc e ag ainst the defe ndant was strong , (2) whether the conduct of the prosec ution tended to mislead the jury or prejudice the d ef en d ant; (3) whether the conduct or rema

rks wer e isolated or extensive; and (4) whether the re m ar k s were made de liberate ly

or ac cidentally

. Slagle v. Bagley , 457 F.3d 501, 516 ( 6th Cir. 2006).
Even if the prosec utor’s sug g estion that Pa d gett held Smit h at g unpoint was improper beca use it was unsupported by the evidenc e, it was not flag rant. The prosec utor made one isolated

comment during closing arg ument. Def

ense counsel objected, and the trial court immediately
i n s t ructed the j ury to disreg ard the comment, t here by ensuring that the j ury would not be mi s l ed

. The Court of Criminal Appea ls observe d that there is no evidenc e that the prosec utor made his

rema rk delibera tely in order to prejudice Padg ett. Padg ett arg ues that he was unfairly prejudice d by the prosecutor’s comment, which was rele vant t o the contested issue of premeditation. Howeve r,

as Padg ett conce des, the State introduced other evidenc e of preme ditation, including his confe ssion, testimony from two witnesses who claimed that Padg ett told them about his plans to kill Smit h, and evidenc e that Padg ett procur ed a g un wee ks prior to the killing. I n light of the abundanc e of strong evidenc e ag ainst Padg ett, it is unl ikely that the prosec utor’s comment pre judiced Padg ett. 17Padgett v. Se xton No. 11-6276 The Court o f Cr

iminal Appea ls’s holding that the prosec utor’s comment did not deny Padg ett

a fair trial was not contra ry to or an unrea sonable application of clea rly established fede ral law. Padg ett repe ats his arg ument that the cour t was re quired to ask whe ther this alleg ed constitutional

err or was harmless bey ond a re asonable doubt, as requir ed by Chapman . Once ag ain, beca use the court de termined that no c onstitut ional err or occ urre d, it was not require d to ask this question.
D. Finally , Padg ett arg ues that his appointed state post-conviction counsel was i n ef fe cti ve. Padg ett conce des that he is not entitled to habeas relief on this g round. See Coleman v. Thompson , 501 U.S. 722, 752 (1991) (holding that there is no constitutional rig ht to an attorney in state postconviction proce eding s and, thus, a petitioner cannot claim constitutionally ineffe ctive assistance of counsel in such proce eding s). He nonetheless arg ues that his case illust rate s why petitioners should be entitled t o b ri ng such claims. He contends that he raised the claim that his trial counsel was ineffe ctive for the first time in state post-conviction proce edi ng s, but beca use his post-conviction counsel was ineffe ctive, this claim was not proper ly develope d. Padg ett now complains that his ineffe ctive assistance of trial counsel claim “will be fore ver lost.” Even if we s y m p at h i z ed with 3 Padg ett, we are not fre e to rec og nize his claim, which is barr ed by Coleman

. See Csekinek v. I.N.S. ,

Padg ett conce des t hat he is not entitled to relief under Martinez v. Ryan , 132 S. Ct. 1309, 3 1319-20 (2012) (holding that inadequa te assistance of counsel during initial-review co l latera l proce eding s may establi s h ca use for proce dural default of a claim of i neff ective assistance at trial wher e the initial-review collater al proce eding is the first proce eding in which the prisoner can raise his claim of ineff

ective a ssistance a t trial). 18Padgett v. Se xton No. 11-6276 391 F.3d 819, 824 (6th Cir. 2004) (“A prec edent of the Supreme Cour t must be followed by the lower f eder al cour

ts.”) (inter

nal quotation marks and a lterations omitted).

III.
For these re asons, we a ffirm the district court’s de nial of Padg ett’s habeas petition.

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