NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0082n.06

No. 21-1001

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL DARBY,

Petitioner-Appellant,

v.

MIKE BROWN, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

Before: BOGGS, WHITE, and READLER, Circuit Judges.

HELENE N. WHITE, Circuit Judge. Petitioner Michael Darby (Darby), a Michigan 

prisoner, appeals the denial of his petition for a writ of habeas corpus brought under 28 U.S.C. 

§ 2254(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Darby argues that 

the state court unreasonably applied federal law in denying his ineffective-assistance-of-trialcounsel claim. We disagree and AFFIRM. 

I. 

On July 15, 2013, a jury convicted Darby of armed robbery, in violation of M.C.L.

§ 750.529, assault with intent to do great bodily harm less than murder, in violation of M.C.L. 

§ 750.84(1)(a), possessing a firearm while committing a felony (felony firearm), in violation of

M.C.L. § 750.227b(1), and two counts of felonious assault, in violation of M.C.L. § 750.82(1). 

Darby is currently serving a combined total indeterminate sentence of 249 months to 42 years of

imprisonment. 
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Darby’s convictions arose from the armed robbery and shooting of eighty-year-old Stanley 

Sowa (Sowa) in front of his two grandnieces, Alexus and Angelica. In affirming Darby’s 

convictions on direct appeal, the Michigan Court of Appeals summarized the facts as follows:

On March 25, 2013, two men robbed Stanley Sowa outside his home in Detroit. 

Sowa, who was 80 years old at the time of trial, was with his two grandnieces. As 

Sowa stopped on the sidewalk to pick up a bag of candy that one of his nieces had 

dropped, a man grabbed Sowa’s arm, wrestled him to the ground, and took his 

wallet from his pocket. Another man, with a silver-colored gun, shot Sowa in the 

head. Both men fled after the robbery. Although Sowa could not identify either of 

the two men, Sowa’s grandnieces both identified [Darby] as the gunman and 

Thomas1as the man who wrestled with Sowa. One of the grandnieces also 

identified the two defendants in live lineups before trial.

The prosecution presented other-acts evidence that [Darby] fired a gunshot in a 

similar robbery against a woman with a young child the following day[, on March 

26, 2013,] where he was accompanied by an unidentified associate. The court 

admitted the evidence over objection for its relevancy in establishing [Darby]’s 

scheme or plan and his identification as one of the persons who robbed Sowa, and 

to show [Darby]’s intent, specifically that he shot Sowa purposefully and not by 

accident. The court instructed the jury that this evidence was admitted and could 

be considered only against [Darby]. 

Both defendants were arrested on March 27, 2013, after a vehicle occupied by three 

men crashed into a garage during a police chase. Officer Randolph Sturley 

identified both Thomas and [Darby] as passengers of the vehicle. Detroit Police 

Officer Andrew Berry testified that Thomas was arrested in the back yard of a home 

during a search for the men.

Thomas testified at trial and denied any involvement in the charged robbery. He 

also denied being in the vehicle involved in the police chase, and testified that he 

was arrested in front of a home while walking to a gas station. Thomas denied 

being related to [Darby], and denied even knowing [Darby] before he and [Darby] 

were both charged with robbing Sowa.

People v. Darby, No. 317849, 2015 WL 3757506, at *1 (Mich. Ct. App. June 16, 2015). Darby’s 

application for leave to appeal to the Michigan Supreme Court was denied. People v. Darby, 876 

N.W.2d 542 (Mich. 2016). 

1 The co-defendant’s name is Thomas Darby. The co-defendants claimed no relation to one 

another. 
No. 21-1001, Darby v. Brown

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Darby then sought habeas relief in federal court, filing an initial petition, after which he 

was permitted to return to state court to exhaust several new claims (including the claim at issue 

here) and, after exhausting the new claims in state court, filed an amended petition, the denial of 

which he now appeals. 

In his state post-conviction motion, Darby argued that his trial counsel failed to effectively 

address Angelica’s March 25th witness statement in which she described an assailant who had a 

“beard.”2 See R. 21-2, PID 1592. Darby provided new evidence consisting of two Instagram 

photographs—one posted to Darby’s Instagram account on the day of the robbery and one posted 

three days before the robbery—that allegedly contradict Angelica’s description of Darby to police 

as having a “beard.” See R. 21-2, PID 1583–84. Darby argued that these photographs were 

relevant to his defense because Angelica described the gun-wielding assailant as a man with a 

“beard,” but the two photographs showed that at the time of the robbery, Darby had only a small 

amount of hair on his upper lip and chin—which he claimed was not a “a beard or noticeable facial 

hair.”

3

 See id. at 1584. The first Instagram photo, dated March 22, 2013, appears to show Darby 

clean-shaven. However, the second Instagram photo, dated March 25, 2013—the date of the

robbery and assault—appears to show a line of facial hair above Darby’s upper lip, and what 

appears to be either hair growth or a very dark shadow under his chin. 

2 Darby also argued that this newly discovered evidence supported a claim for actual innocence, 

but the certificate of appealability does not include this claim.

3

In Darby’s later amended petition for habeas corpus, he adjusted his characterization of the two 

photographs and stated that they described him as having “barely noticeable facial hair on the day of the 

offense and two days before the offense.” R. 18, PID 1443 (emphasis added). Darby also acknowledged 

in his habeas petition that the “two photographs . . . fairly mirror[ed] how he looked at his preliminary 

examination hearing,” id., and characterized his facial hair on the day of the hearing as “on his chin and 

above his top lip, and barely noticeable.” Id. at 1442. 
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In its opinion and order denying Darby’s post-conviction motion for relief from judgment, 

the state circuit court rejected Darby’s claim that trial counsel was ineffective in failing to 

investigate and introduce into evidence the photographs showing Darby allegedly without a beard. 

After setting forth the two-part standard for determining ineffective assistance of counsel at trial,

articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), the court 

concluded:

Based on the existing record, defendant is unable to demonstrate ineffective 

assistance of counsel. First, defendant is unable to demonstrate that trial counsel’s 

performance was deficient. As defendant’s previous arguments have all failed to 

meet the criteria set forth in MCR 6.508(D) to establish relief from judgment. 

Second, trial counsel cannot be found to be ineffective for failing to object to 

meritless arguments. In order to show prejudice, a defendant must show “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” This Court does not find the trial counsel’s 

alleged failure to investigate defendant’s Instagram page to find a picture of him 

without facial hair as outcome determinative. Furthermore, two days after the 

crime against the victim, Stanley Sowa, defendant was arrested and Detroit Police 

Officer Sturley recovered a silver handgun defendant had dropped, as he tried to 

escape, and defendant’s arrest photo clearly showed him with a mustache and a 

goatee. Moreover, the Instagram photo defendant purports to show him without 

any facial hair, upon closer inspection, actually shows defendant to have had a six 

o’clock shadow.

R. 21-1, PID 1518–19. Darby sought to appeal to the Michigan Court of Appeals and the Michigan 

Supreme Court, but both denied leave to appeal in one-sentence orders. See People v. Darby, No. 

347278 (Mich. Ct. App. Apr. 23, 2019), lv. denied, 934 N.W.2d 244 (Mich. 2019). 

Darby then returned to the district court and amended his habeas petition. The district court 

denied relief, concluding that Darby had “not established that the [state] trial court unreasonably 

applied Strickland when it found a lack of prejudice from counsel’s failure to discover and 

introduce the photographs.” R. 26, PID 1782. Although the court agreed that the photographs 

“would have demonstrated a disconnect between the eyewitness identifications of the assailant and 

Darby’s appearance at the time of the offense,” it found that the “disconnect was fully presented 
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to the jury at trial even without the photographs” given that the prosecution “conceded during its 

closing argument that the eyewitnesses described the assailant as having a full beard and that at 

the time of the offense Darby may have had only hair under his chin and a mustache.” Id. at 1782–

83. 

The district court granted a certificate of appealability on the issue of ineffective assistance 

of trial counsel “arising from the failure of Darby’s counsel to discover and introduce into evidence 

the two photographs of Darby taken shortly before and after the robbery.” Id. at 1791. 

II.

A.

Under § 2254(d) of AEDPA, a district court may not disturb a state court’s ruling with 

respect to any claim that was adjudicated on the merits unless the adjudication resulted in a 

decision that:

(1) was contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States; or

(2) was based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 

arrives at a conclusion opposite to that reached by the Supreme court on a question of law” or “if 

the state court decides a case differently than the Supreme Court has on a set of materially 

indistinguishable facts.” Van Tran v. Colson, 764 F.3d 594, 604 (6th Cir. 2014) (quoting Williams

v. Taylor, 529 U.S. 362, 412–13 (2000)). “Under the ‘unreasonable application’ clause, a federal 

habeas court may grant the writ if the state court identifies the correct governing legal principle 

from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the 

petitioner’s case.” Moore v. Mitchell, 708 F.3d 760, 774–75 (6th Cir. 2013) (quoting Williams, 
No. 21-1001, Darby v. Brown

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529 U.S. at 413). Ultimately, “[t]he question under AEDPA is not whether a federal court believes 

the state court’s determination was incorrect but whether that determination was unreasonable—a 

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). 

In determining whether the state court unreasonably applied federal law, we review “the 

last state court to issue a reasoned opinion on the issue.” Hoffner v. Bradshaw, 622 F.3d 487, 505 

(6th Cir. 2010). Darby raised his ineffective-assistance-of-counsel claim in his post-conviction 

motion for relief from judgment. After the state trial court denied that motion, the Michigan Court 

of Appeals and the Michigan Supreme Court both summarily denied his applications for leave to 

appeal. Darby, No. 347278, lv. denied, 934 N.W.2d 244. Accordingly, because the state trial 

court was “the last state court to issue a reasoned opinion” on Darby’s IATC claim, we review its

analysis. Hoffner, 622 F.3d at 505; Stermer v. Warren, 959 F.3d 704, 723 (6th Cir. 2020) (“Both 

the Michigan Court of Appeals and the Michigan Supreme Court denied [the petitioner]’s claims 

without a reasoned opinion. Thus, we must ‘look through’ to the state trial court’s decision to 

determine [the reasoning of the higher courts].”). 

B.

The Sixth Amendment guarantees criminal defendants the right to effective assistance of 

counsel at trial. Beasley v. United States, 491 F.2d 687, 692 (6th Cir. 1974) (citing U.S. Const. 

amend. VI). Darby claims that trial counsel’s failure to investigate and introduce the two 

Instagram photos into evidence constituted a denial of his Sixth Amendment right to the effective 

assistance of counsel. He argues that the photographs, which “show that Mr. Darby only had a 

small amount of facial hair on his upper lip and chin and did not have a beard,” are “directly 

contrary” to Angelica’s description of the assailant as “ha[ving] a beard.” Appellant’s Br. at 16. 
No. 21-1001, Darby v. Brown

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This evidence, Darby says, “would have substantially undermined the prosecution’s ability to 

identify him as the assailant.” Id.

To establish that counsel rendered unconstitutionally ineffective assistance at trial, Darby 

must demonstrate that 1) his “counsel’s performance was deficient”; and 2) “the deficient 

performance prejudiced the defense.” Strickland, 466 U.S. at 687. Under this standard, “a court 

must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal 

quotations omitted). A defendant’s claim of ineffective assistance of counsel can fail on either 

prong. See Nichols v. United States, 563 F.3d 240, 249 (6th Cir. 2009) (“[P]etitioner must satisfy 

both prongs.”). Here, because Darby’s claim fails on the prejudice prong, we need not address the 

deficiency prong. Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the defendant.”).

To demonstrate prejudice, Darby must show that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id.

at 694. A “reasonable probability” is one that “undermine[s] confidence in the outcome.” Id. The 

burden is on the petitioner to establish not merely that counsel’s errors created the possibility of 

prejudice, but rather “that they worked to his actual and substantial disadvantage.” Murray v. 

Carrier, 477 U.S. 478, 494 (1986) (internal quotations omitted). “The likelihood of a different 

result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 

2011) (quoting Harrington v. Richter, 562 U.S. 86, 112 (6th Cir. 2011)). When analyzing 

ineffective assistance claims, we consider “the totality of the evidence—both that adduced at trial, 
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and the evidence adduced in the habeas proceeding.” Towns v. Smith, 395 F.3d 251, 257 (6th Cir. 

2005) (internal quotations omitted).

When AEDPA deference applies to Strickland claims, “the question is not whether 

counsel’s actions were reasonable. The question is whether there is any reasonable argument that 

counsel satisfied Strickland’s deferential standard.” Hodges v. Colson, 727 F.3d 517, 534 (6th Cir. 

2013) (quoting Harrington, 562 U.S. at 105).

III.

The parties dispute whether AEDPA’s deferential standard or Strickland’s de novo review 

standard applies. Darby argues that the state court misapplied Strickland by unreasonably 

elevating his burden from the proper standard of showing a “reasonable probability that,” but for 

his counsel’s failure to discover and offer into evidence the Instagram photos, “the result of the 

proceedings would have been different,” to a higher burden of showing that counsel’s error was 

“outcome determinative.” Appellant’s Br. at 21–22; Strickland, 466 U.S. at 694. However, we 

need not decide whether AEDPA deference applies in this case because, even under de novo 

review, Darby cannot show that his trial counsel’s performance prejudiced his defense under

Strickland. 466 U.S. at 694. 

A.

Although the two Instagram photographs were not mentioned or presented during Darby’s 

trial, the question whether Darby had facial hair—and if so, whether his facial hair constituted a 

“beard”—came up multiple times. During Darby’s counsel’s cross-examination of Angelica, the 

following exchange took place: 

[Darby’s Counsel]: And you were very specific in your assertions that you – when 

the police officer asked you to describe the individual that had the gun, you were 

very specific in saying he had a beard, right?
No. 21-1001, Darby v. Brown

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[Angelica]: I thought he had a beard.

[Darby’s Counsel]: Is that what it says in your statement on [the] day that you saw 

this happen and you talked to the police? Didn’t you tell him the guy had a beard?

[Angelica]: Yes.

...

[Darby’s Counsel]: [Handing Angelica a photo] That’s a picture of [a] photo lineup that you saw back on the 28th, right; about three days after this happened to your 

uncle?

[Angelica]: Yes.

...

[Darby’s Counsel] And in fact, you picked out Michael [Darby], all the way in the 

back [of the lineup photograph]. He doesn’t have a beard, does he? 

[Angelica]: No. 

R. 12-8, PID 625–28.

The state introduced a photograph from Darby’s arrest report, taken at the precinct two 

days after the robbery, in which Darby has noticeable facial hair under his chin and above his upper 

lip. The authenticating witness—the police officer in charge of Darby’s case—described Darby 

in the arrest photo as having “a goatee,” or “some mustache and a little bit [of hair] under the chin.” 

Id. at 705–06. The word “goatee” was also used by Darby’s counsel to describe Darby’s facial 

hair on the day of trial while eliciting testimony from Alexus that Darby had a “goatee” on that 

day. Id. at 595 (“Isn’t it fact that [this] gentlemen has a goatee, right; that gentleman there, right?” 

“Yes.”). 

Later, in closing arguments and rebuttal, Darby’s counsel and the prosecutor argued their 

own characterizations of Darby’s facial hair, in light of Angelica’s description in the police report:

Prosecutor Closing Argument:

You’re also going to see that every single one of [the men in the lineup from which 

Angelica identified Darby to the police] has facial hair of some sort. None of them 

are cleaned [sic] shaven. Now Michael Darby is at the end, the last guy. And the 

picture is darkened and you can’t really see very well. But you are going to be 
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given the arrest record which we had admitted into evidence as Exhibit Number 7. 

It shows Michael Darby and his arrest date which was March 27th. And this is it. 

You’ll see a little picture of him, but you can clearly see he has a mustache and he 

has hair under his chin. And the written word here says, it’s a goatee. 

Now Angelica didn’t know the word goatee. She’s 11 years old. She’s a girl. She 

doesn’t know the word goatee. She describes it as a beard. Well, he does have 

facial hair under his chin. A lot of people would call that a beard if they don’t know 

the word goatee. But she’s not wrong about that. 

R. 12-10, PID 995–96

Defense Counsel Closing Argument:

Also the perpetrator that occurred in this case on March 25th, the issue was an 

important description. He had a beard. He’s an 18 year old kid. A light complected 

18 year old kid. There’s no possible way that this kid can grow a beard. Yet, three 

witnesses all said that guy who had the gun, he had a beard. It’s physically 

impossible.

Id. at PID 1011. 

Prosecutor Closing Rebuttal:

So [Darby’s counsel] tells you that it’s physically impossible for an 18 year old to 

grow a beard. I don’t know if it is or isn’t. But no one ever said Michael Darby 

had a beard like [Darby’s counsel] is referring to. And you know from an exhibit I 

showed you earlier, he has facial hair. He has hair under his chin. He has a 

mustache. No one ever asked [A]lex[i]s or Angelica [to] describe this beard. How 

would you define beard. So when someone has hair under their face, under their 

chin, it’s not uncommon for someone to refer to that as a beard. And clearly Mr. 

Darby, Michael Darby had that. The pictures showed that he did . . . .

Id. at PID 1028–29. 

B.

Darby argues that his trial counsel was ineffective for “failing to discover and introduce 

into evidence the two photographs which show that Mr. Darby only had a small amount of facial 

hair on his upper lip and chin and did not have a beard,” and that this failure prejudiced him because 

the photographs “would have substantially undermined the prosecution’s ability to identify him as 

the assailant” given that “identification [is] the critical issue.” Appellant’s Br. at 15–16. But 
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Darby has not shown that the two photographs would have meaningfully impacted his trial in any 

way, let alone “substantially undermined” the prosecution’s case. The jury had Darby’s arrest 

photograph from two days after the robbery and assault. And Darby’s counsel stated in front of 

the jury that Darby had a “goatee” on the day of trial. R. 12-8, PID 595. This is consistent with 

the hair growth that can be seen on Darby’s face in the Instagram photo from the day of the assault

that he says should have been introduced into evidence. Thus, even without the two photographs, 

the jury had a visual reference point and description when they considered Darby’s counsel’s

argument that Darby’s facial hair was too insignificant to be called a “beard.” See id. at 625–28; 

R. 12-10, PID 1011. 

The jury also heard the prosecutor acknowledge that Darby’s facial hair—what the 

prosecutor referred to as a “goatee”—was arguably not a beard. R. 12-10, PID 995–996. Finally, 

and critically, the jury heard Darby’s counsel elicit from Angelica—the witness who described the

assailant as “beard[ed]” and who ultimately identified Darby in a police lineup—a concession that

Darby “doesn’t have a beard.” R. 12-8, PID 628. This concession from a key eyewitness that the 

word “beard” may not have applied to Darby’s facial hair, together with the photographs that were 

admitted and the extensive argument of counsel about what constitutes a “beard,” was sufficient 

to inform the jury of the scant nature of Darby’s facial hair, the imprecision of Angelica’s 

description in the police report, and the fact that Angelica did not consider Darby’s facial hair to 

be a “beard.” 

It is not clear what, if anything, the photographs would have added to the jury’s observation 

of Darby during trial and the concessions made by Angelica and the prosecutor regarding the use 

of the term “beard.” We cannot find prejudice in counsel’s failure to present additional evidence 

when the evidence “would have added nothing of value.” See Bobby v. Van Hook, 558 U.S. 4, 12 
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(2009) (concluding that counsel’s failure to interview extended relatives in order to better help 

“narrate the true story of [the defendant’s] childhood experiences” was not prejudicial because the 

witnesses would have adduced only “minor additional details”). 

Additionally, Darby does not address the probative value of the two photographs when 

viewed in light of the additional evidence presented against him. We must address the “totality of 

the evidence” when analyzing prejudice claims on habeas, Towns, 395 F.3d at 257, and here there 

was significant additional evidence suggesting that Darby committed the offenses of which he was 

convicted. Darby does not account for the fact that, even if Angelica’s description of the bearded 

man to the police was imprecise or inaccurate, she still identified him in a police lineup several 

days after the assault. Darby, 2015 WL 3757506, at *1. Nor does Darby address the likely effect 

of the photographs when considered in light of his possession of a silver handgun when arrested—

which matched Angelica’s description in the police report, id.—or the weight of the photographs 

in light of the other-acts evidence suggesting that he had a modus operandi in armed and 

accompliced robberies. See id.

In short, the photographs did not actually refute the prosecution’s witness-identification 

evidence or undermine the weight of the other evidence against Darby. At best, they would have 

provided cumulative support for a theory that was already made clear to the jury. “Courts have 

routinely found no prejudice where there exists [inculpatory] evidence other than that which the 

potential evidence would have contradicted and the defendant’s proposed evidence would not 

directly refute the prosecution’s.” Fitchett v. Perry, 644 F. App’x 485, 492–93 (6th Cir. 2016) 

(concluding that counsel’s failure to cross-examine two character witnesses did not prejudice the 

defendant because, even had the witnesses testified, they could not actually “corroborate [the 
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defendant’s] account of the altercation” and “would not have contradicted the other evidence that 

helped to convict [him]”). 

IV.

Because Darby has not shown that counsel’s failure to discover and offer the two Instagram 

photographs into evidence prejudiced his defense, we AFFIRM.