NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0659n.06
Case No. 16-2668
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

HAYES BACALL, Petitioner-Appellant,

v. CATHLEEN STODDARD, Warden, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

O P I N I O N BEFORE: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges. McKEAGUE, Circuit Judge. Hayes Bacall asks us to reverse the district court’s refusal to issue a writ of habeas corpus under 28 U. S.C. § 2254. Bacall was convicted in a Michigan court of first-degree, premeditated murder. Although the prosecutor committed a serious error during his rebuttal argument, we are constrained by the standards imposed by the Supreme Court and the Antiterrorism and Effective Death Penalty Act (“AEDPA”). We AFFIRM the judgment of the district court.
I Bacall treated his nephew, Saif Jameel, like hi s own son. He loved Jameel so much that he loaned him $400,000 after taking out multiple equ ity loans against his residence and business.Case No. 16-2668, Bacall v. Stoddard

- 2 - These loans were secured by nothing except for B acall’s trust and sense of family obligation. Unfortunately for both Bacall and Jameel, this feeling was not mutual.
A Initially, Jameel paid the monthly interest the banks were charging Bacall on the homeequity loans. Jameel paid nothing on the princi pal, and in time, stopped making the interest payments too. Eventually, Bacall discovered that Jameel’s creditors had multiplied, and that he owed close to $1 million to various individuals. Bacall repeatedly pleaded with Jameel to start making payments, out of respect for his promise and the impact the debt was having on Bacall’s family. Jameel essentially told his uncle that he would be luc ky to get anything. Welching on his debts was not Jameel’s onl y flaw. Jameel was known to draw his concealed firearms on anyone who made him too a ngry. Bacall testified that Jameel once used a shotgun to chase off a group of peopl e who tried to cash a check that did not belong to them. He also once stuck his pistol in the face of a valet w ho told him he couldn’t pa rk in the drive-in loop of a funeral venue, saying, “[D]o you know who you’re talking to[?]” The valet fled in terror. After frequent cajoling, Jameel wrote his uncle a $2,000 check. However, in what must have been a cruel joke, the check was postdated by about thirty days. Bacall, angry, took the pistol he used for protection in his cash-checking business and went to visit Jameel at his BP gas station in Troy, Michigan. On hi s way to the station, he called Ja meel about ten times. Jameel did not answer. When Bacall arrived, there were two people at the gas station. One of them (Slieman Bashi) was a longtime friend of both Bacall and Jameel. Another witness (Danielle Iverson) watched Bacall go into the back office where Jameel worked. Ev entually, both witnesses heard gunshots. Bacall exited the office, shook Bashi’s hand, went outside, and called 911. When theCase No. 16-2668, Bacall v. Stoddard

- 3 - officer arrived, he observed that Bacall “had an eerie calmness to him.” He asked Bacall what had happened, and Bacall said, “I shot my nephew, he owes me $400,000.” The officer arrested Bacall, secured the empty gun, and pl aced him in the police cruiser. Bacall’s English was not the best, and the officer struggled to discern whether Bacall understood his Miranda rights. At one point, the offi cer asked, “Okay you know your rights, right?” Bacall responded with a blunt , “Yes I’m right.” After the officer tried to clarify what he meant by saying, “Constitutional rights?”, Bacall again responded by saying, “Yes everything’s right.” Bacall later testified th at “[t]here are a lot of phras es that, you know, I don’t understand,” and that he had completely misunderstood what the officer was asking. After doing his best to Mirandize Bacall, the officer drove him to the po lice station. During the dr ive, Bacall received a phone call from Jameel’s brother (Samir). The en tire conversation was not translated to English, but from the parts that were, it is clear that B acall confessed to killing Jameel and (at one point) insulted Samir and Jameel’s sister. 1
B The State of Michigan charged Bacall with first-degree, premeditated murder. While he was in jail awaiting trial, Bacall made at least seven phone calls wh ere he claimed that he shot Jameel in self-defense. He con tinued to insist upon this defense at trial, and testified on his own behalf. On direct examination, he said that he was afraid of Jameel because of Jameel’s reputation, and that when he arrived at the gas st ation, Jameel got angry and threatened to “put it in your ass.” Bacall testified that this anger, co mbined with the small size of Jameel’s office and the fact that Jameel ke pt weapons in the room, caused him to feel afraid: “I knew I was going to die. I was, I felt in danger. Because he had pulled a gun on, on tons of people[] with no reason.

1 The insult apparently does not translate well into English, but runs something like: “I just fucked his sister up.”Case No. 16-2668, Bacall v. Stoddard

- 4 - So how about, how about a person whom, whom he owes $400,000—what do you think he will do to him[?]” After seeing Jameel reach for his cabinet, Bacall fired. Although the gas station had video surveillance, there was no camera in Jameel’s office. Iverson did not see the shooting, and Bashi gave inconsistent te stimony about what happened. Ballistics and forensic evidence were equally inconclusive. Samir—Jameel’s brother—testified that Bacall had frequently threatened to kill Ja meel for defaulting on his debt by “empty[ing] the gun” into Jameel. But Samir adm itted on cross-examination that he never reported any of these threats to the police, and hi s motive to lie is obvious. During closing arguments, the prosecutor a nd the defense attorney focused on Bacall’s mental state at the time of the shooting. In rebuttal, the prosecutor told the jury: In English, the defendant says he killed his nephew for $400,000. That’s the first thing out of his mouth when the officer asked him what happened. . . . Defendant never says self-defense to the police officer and the officer gives him three separate chances. . . . [A]fter the Miranda rights, the officer asks him again about shooting a nephew. He says—well, he hasn ’t given me anything in about a year. He never says self-defense or even anyt hing like self-defense. And on the witness stand, defense counsel asked the defenda nt—well, why did you tell the officer, you know, you shot him because of $400,000—and the defendant slips up, he says—because that was the main reason at the time. So practice though he may, the truth shines through. Now, at trial is the first time the defendant says selfdefense

. This was false, and the prosecutor knew it. The record shows that the prosecutor was well-aware of the seven calls from jail where Bacall claime d self-defense. In obedience to the judge’s instructions, defense counsel raised his objection to this statemen t after the jury had retired to deliberate. The trial judge overruled the objection and refused to give a cura tive instruction or to grant a mistrial. During deliberations, the jury sent a note to the judge. The note read: “Can the jury decide on a verdict of a lesser cause when th ey are unanimous, even though some may feel aCase No. 16-2668, Bacall v. Stoddard

- 5 - stronger verdict is what they believe?” The ju dge, after another objection from the defense, 2 instructed the jurors th at they should decide the case on what ever charge they could agree upon, that they could go back and forth between firs t-degree murder and voluntary manslaughter, that they should all keep their minds open to persua sion, but that none of them should give up their beliefs just for the sake of agr eement. The jury also requested to see the gun used in the killing, and the judge—nervous about sending a gun back to the jury room—permitted the jury to examine the weapon in the jury box for a fe w minutes. Although the jurors talked amongst themselves, their statements were not recorded, and nothing of note was said in the courtroom during this time. The jury deliberated for two afternoons and a morning. After the foreperson told the court that “this was not an easy decision and we . . . thought about it,” the jury found Bacall guilty of first-degree murder. The Michigan Court of Appeal s affirmed Bacall’s conviction. People v. Bacall , No. 306269, 2013 WL 951084 (Mich. Ct. App., March 5, 2013) . On appeal, Bacall raised three issues relevant for our purposes: (1) that the jury’s note to the judge tr iggered double-jeopardy protections because it indicated that the jury wa s unanimous on a lesser charge; (2) that the jury’s brief, public deliberation was plai n, reversible error; and (3) that the prosecutor made several improper statements 3 during argument that deprived him of a fair trial. Id. at *1–5. The court of appeals rejected a ll three claims. On the first claim, the court found that the jury had not made a decision because it had as ked a question instead of actually returning the verdict form. On the second, the court found that although the jury should not have been

2 Bacall’s counsel claimed that this was a decision on a lesser charge, triggering the Constitution’s double-jeopardy protections. 3 In addition to the “first time” remark, the prosecutor al so referred to Bacall as a “loan shark” and mentioned inadmissible evidence that Bacall had lied on his concealed-carry-permit application.Case No. 16-2668, Bacall v. Stoddard

- 6 - permitted to discuss the gun in public, Bacall had not objected to the public deliberation and had not shown any prejudice under United States v. Olano , 507 U.S. 725 (1993). On the third claim, the court found that most of the prosecutor’s stat ements were proper. However, it reprimanded the government for lying about the jail phone calls , finding that this was “highly inappropriate” and stating that the trial judge should have given a curative instruction to the jury. Nevertheless, the court affirmed the convicti on because the “overwhelming evid ence” against Bacall resulted in a fundamentally fair trial. Bacall , at *3–5. The Michigan Supr eme Court denied review. 843 N.W.2d 147 (Mich. 2013) (mem.). C Bacall then filed this § 2254 petition in federal court. The district court denied the petition, holding that Bacall’s claims were eith er meritless or barred by the AEDPA standard of review. However, it granted a cer tificate of appealability on the three claims identified above. Bacall timely appealed. Because this is a habeas case challenging a state-court conviction, we apply the rules prescribed in 28 U.S.C. § 2254. When a state cour t has decided a federal is sue on the merits, we may issue the writ only if the state court’s decision “was contrary to, or involved an unreasonable application of, clear ly established Federal law, as determined by the Supreme Court of the United States,” or if it “was based on an unreasonabl e determination of the facts.” 28 U.S.C. § 2254(d). We presume that a state court decides a ll claims presented to it. Harrington v. Richter , 562 U.S. 86, 99 (2011); Johnson v. Williams , 568 U.S. 289, 298–99 (2013). Bacall contends that his conviction resulted from an “unreasonable application” of federal law. A state court’s resolution of a fede ral issue is unreasonable under this standard onlyCase No. 16-2668, Bacall v. Stoddard

- 7 - if it “was so lacking in ju stification that [it committed] an error well understood and comprehended in existing law beyond any pos sibility for fairminded disagreement.” Harrington , 562 U.S. at 103. In other words, the mistake ca nnot simply be error, or even clear error— instead, it must be “objectively unreasonable.” White v. Woodall , 134 S. Ct. 1697, 1702 (2014). Moreover, when answering this question, we may only look to th e specific holding s of the U.S. Supreme Court. Id. In a recent prosecutorial-misconduc t case, the Court chastised us for applying our own interpre tations of its cases to habeas petitions. Parker v. Matthews , 567 U.S. 37, 48–49 (2012). 4
II The district court’s thorough anal ysis of this case l eaves little for us to say on most of the issues. We agree completely with Judge Mi chelson’s evaluation of Bacall’s ConfrontationClause, double-jeopardy, and public-deliberation arguments, and we adopt her opinion as our own in those respects. We only add one observa tion to the district court’s opinion on the publicdeliberation issue. We recently clarified that plain-error review can be an adjudication on the merits under
AEDPA. Stewart v. Trierweiler , 867 F.3d 633, 638 (6th Cir. 2017). Thus, even though the district court assumed that AEDPA deference app lied in light of our conflicting precedent, this assumption is unnecessary, because the Michigan court’s plain-error review “conduct[ed] [a] reasoned elaboration of [the] issue under federal law.” Fleming v. Metrish , 556 F.3d 520, 531 (6th Cir. 2009); Bacall , at *5–6 (discussing Olano , 507 U.S. at 738). Thus, AEDPA deference forecloses Bacall’s public-deliberation claim; neither Olano nor any other Supreme Court case

4 All of the Sixth Circuit cases Bacall cites in favor of granting the writ predate the Court’s directives in Harrington , Parker , and White

. See Slagle v. Bagley , 457 F.3d 501 (6th Cir. 2006); Washington v. Hofbauer , 228 F.3d 689 (6th Cir. 2000); Boyle v. Million , 201 F.3d 711 (6th Cir. 2000). They are therefore of doubtful value to us.Case No. 16-2668, Bacall v. Stoddard

- 8 - establish that brief public deliberation by a jury is structural error. 28 U.S.C. § 2254(d)(1); Olano , 507 U.S. at 738.
III As the district court rec ognized, the prosecutorial-misconduc t claim is more difficult. The Michigan Court of Appeals he ld that any prejudice arising out of the concealed-carry-permit issue was cured by the trial court’s instruction that arguments are not evidence (the “concealedcarry comment”). Bacall , at *3. The court did, however, hold that the prosecutor committed misconduct by asserting that Bacall had not raised a self-defense claim before trial (the “firsttime comment”). Id. at *4. Nevertheless, the court refu sed to reverse Bacall’s conviction, ultimately concluding that he was not deprived of a fair trial. Id. at *5. A The district court correctly identified Darden v. Wainwright , 477 U.S. 168 (1986), as the governing law. Under Darden , a prosecutor’s inappropriate comment during argument must be evaluated in context, and does not justify relief solely because it is “improper,” “undesirable,” or even “deserves the condemnation it has recei ved from every court to review it.” Darden , 477 U.S. at 179–81. Instead, such statements will only violate the constitutio nal right to a fair trial if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. at 181. The generality of this standard only adds to the deference ac corded to state courts under
AEDPA. Parker , 567 U.S. at 48; Stewart , 867 F.3d at 638–39. Thus, our only task is to project the facts of this case against th e facts in the Court’s prosecutorial-misconduct jurisprudence to determine whether the Michigan Court of Appeals applied Darden unreasonably. See id. We will not (and cannot) stitch together principles fro m multiple related cases in order to grant relief,Case No. 16-2668, Bacall v. Stoddard

- 9 - even if we might do so on direct review. See White , 134 S. Ct. at 1705–07. In addition to Darden , we have identified three relevant cases. See Donnelly v. DeChristoforo , 416 U.S. 637 (1974); Miller v. Pate , 386 U.S. 1 (1967); Berger v. United States , 295 U.S. 78 (1935). None of these decisions support granting the writ here.
B Darden provides a starting point. In Darden , the prosecutor referred to the defendant as an “animal” and said that “[h]e shouldn’t be out of his cell unless he ha s a leash on him and a prison guard at the other end of that leash.” Darden , 477 U.S. at 180 n.12. The prosecutor also expressed his personal wish that he could “see him sitting here with no face, blown away by a shotgun.” Id. The Court, after finding that these (and other) comments “undoubtedly were improper,” nevertheless held that “they did not deprive petitioner of a fair trial.” Id. at 180–81. The Court pointed to six factors that influenced its decision. First, it noted that “[t]he prosecutors’ argument did not manipulate or misst ate the evidence, nor did it implicate other specific rights of the accused su ch as the right to counsel or the right to remain silent.” Id. at 181–82. Second, “[m]uch of the obj ectionable content was invited by or was responsive to the opening summation of the defense.” Id. at 182. This fact did not excuse the comments but merely served to place them in the same context in which the jury heard them. Id. Third, the Court observed that the trial judge expressly instru cted the jury that “the arguments of counsel were not evidence.” Id. Fourth, it noted that “[t]he weight of the evidence against petitioner was heavy,” and reasoned that a strong ca se makes it less likely that the jury was in fluenced by error. Id. Fifth, the defense counsel intentionally wi thheld his objection, k nowing from his long experience with the prosecutor th at he would dig his own grave “if you allowed him to go on.” Id. at 182–83 n.14. Finally, the procedural context of the trial allowed the defense to refute theCase No. 16-2668, Bacall v. Stoddard

- 10 - statements and place them “in a light that was more likely to engender strong disapproval than result in inflamed passions against petitioner.” Id. at 182. Darden provides only imperfect guidance. There, the chief issue was the identity of the defendant as the killer, not his motive or intent. See 477 U.S. at 172–74. In Darden , police recovered a firearm about forty feet from a car matching the description of the vehicle leaving the scene of the murders. Id. The car was the defendant’s, and ballistics evidence removed all doubt that the gun was used to kill the victims. Id. at 173–74. In this c ontext, the prosecutor’s statements—referring to the defendant as an “animal” and lamenting that his face was not “blown away”—could not have adde d much to the heap of proof. Id. at 180 n.12, 182. This case is more complicated. The chief disp ute here was over Bacall ’s mental state, not his identity as the killer. In fact, it appears that the only significant issue at trial was whether Bacall acted in self-defense or whether he premeditated the killing. Further, the evidence presented here was far more equivocal than the evidence in Darden . It is clear that the jury struggled deeply with the first-degree murder count. This struggle was understandable, considering that the only eyewitn ess to the killing contradicted himself, that Bacall had difficulty comprehending police questions about his motives, th at the video recordings were inconclusive, and that Bacall had a good reason to be afraid of the victim. Th is was not an open-and-shut case for the defense either: Bacall brou ght a gun to the scene of the cr ime, and a witness did testify that Bacall had previously expr essed a desire to shoot the vi ctim (although these threats were never reported). Bacall also had several opportunities to explain to the polic e that he acted in self-defense, but instead blurte d out, “I shot my nephew, he owes me $400,000” and insulted the
deceased’s sister.Case No. 16-2668, Bacall v. Stoddard

- 11 - Thus, in some sense, this case is worse than Darden

. The prosecutor’s false statement that “at trial is the first time the defendant says self-defense” went to the heart of the case. Bacall , at *3. It was a direct, fact ual claim that the defendant had fabricated his defense at the last minute. The law recognizes the strong prob ative force of this sort of an accusation. See Fed. R. Evid. 801(d)(1)(B) (exempting from the hear say rule statements “consistent with the declarant’s testimony . . . offered to rebut an expre ss or implied charge that the declarant recently fabricated [that testimony] . . . .”). But the Court did not grant relief in Darden . Further, none of the Court’s post- Darden cases have granted relief on thes e grounds. Thus, for some guidance, we examine two of Darden ’s ancestors that did grant relief. The first case is Miller v. Pate , 386 U.S. 1 (1967). In Miller , the defendant had been convicted of brutally raping and mu rdering an eight-year-old girl. Id. at 2. The prosecutor’s chief exhibit was a pair of men’s underwear covered by large, reddish-brown stains. Id. at 3. The state court refused to let the defendant examine the underwear or have it tested. Id. at 2. Throughout the case, the governme nt repeatedly asserted—t hrough witnesses and argument— that the underwear was cove red in the victim’s blood. Id. at 2–5. This was a bald-faced lie. Id. at 5–7. The government knew that the unde rwear was actually covered in red paint , and not a drop of blood. Id. On these facts, the Court vacated th e conviction because “[t]he prosecution deliberately misrepresented the truth.” Id. at 6. The underwear was a “vital” link between the defendant and the crime, and its “gruesomely emotional impact upon the jury was incalculable.” Id. at 4–5. The truth, in c ontrast, made the evidence “virtually valueless.” Id. at 6. Bacall also cites United States v. Berger , 295 U.S. 78 (1935) to support his position.
In Berger , the Court excoriated a U.S. Attorney for repeated and persistent misconduct, including misrepresentin g facts to the jury. Id. at 84–85. The Court also ascribed importance toCase No. 16-2668, Bacall v. Stoddard

- 12 - the fact that “the case against Be rger was not strong . . . [he] was convicted only of conspiracy and not of any substantive offense . . . upon the [sol e] testimony of . . . an accomplice with a long criminal record.” Id. at 88–89. On these facts, the Court found that a new tr ial was necessary because the misconduct was so “pronounced and pers istent, with a probable cumulative effect upon the jury which cannot be disr egarded as inconsequential.” Id. at 89. Here, Bacall contends that th e prosecutor’s first-time commen t was a per se violation of due process. Appellant’s Br. at 23 (“In this se tting, and under any reasonable view of the trial record . . . this single remark . . . could not reasonably be construed as anything other than an affront to petitioner’s Due Proce ss rights.”). His indi gnation is not unfounded. As the Michigan Court of Appeals noted, this was not “merely fair comment on the evidence.” Bacall , at *4. Instead, “[t]he prosecutor . . . made the broade r and clearly false affi rmative assertion that defendant had never assert ed self-defense at any time prior to trial.” Id. The prosecutor’s resurrection of the excluded concealed-carry-per mit issue was also inappropriate. We disagree with the district court that this only had a sl ight impact on Bacall’s credibility. Failing to disclose a conviction for the unlawful discharg e of a firearm on a concealed-weapon-permit application could seriously dama ge a jury’s willingne ss to believe the permit holder’s claim of self-defense. If this were direct review, we might find th at a new trial was necessary. The Michigan Court of Appeals’ decision to label the evidence against Bacall as “overwhelming” also seems inordinately generous. But unfortunately for Bacall, we are bound by the facts of cases decided by the Supreme Court—and those facts do not mandate a new trial here. Miller did not vacate the defendant’s conviction solely on one or two isolated fibs offe red by the prosecution. The lies
in Miller were repeated and egregious, in the sens e that the truth, once revealed, rendered theCase No. 16-2668, Bacall v. Stoddard

- 13 - prosecution’s case virtually impotent. Miller , 386 U.S. at 3–7. In co ntrast, had the prosecutor refrained from improper argument he re, he still had a fair case, al beit a close one. Similarly, the misconduct in Berger was so persistently wrong in the face of weak evidence that the need for a new trial was obvious. Berger , 295 U.S. at 89. But like in Miller , it was this persistence, not just the weakness in the government’s case, that demanded a new trial. See Donnelly , 416 U.S. at 646 (“The ‘consistent and repeated misrepresentation’ of a dram atic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury’s de liberations. Isolated passages of a prosecutor’s argument . . . do not reach the same proportions.”). This same persistence was simply not present at Bacall’s trial. We do not mean to suggest that the prosecuto r’s misstatements were inconsequential or appropriate—they weren’t. But we cannot say that they “so infect ed the trial with unfairness as to make the resulting convicti on a denial of due process.” Darden , 477 U.S. at 181. C Finally, we address the remaining facts that Ba call raises in his defe nse. The trial court ordered Bacall’s attorney not to object during th e argument and to raise his objections afterward in a motion for a mistrial (which he did). In this motion, Bacall asked the trial court to give a curative instruction regarding the prosecutor’s mi sstatements, but the court refused. Since the problematic statements were made in the prosecuto r’s rebuttal, the defense had no opportunity to correct them before the jury. The misstatements th erefore went into the jury room, unconfronted and uncorrected. Disturbing as the situation is, we cannot gran t habeas relief on this basis. None of the Court’s precedent addresses this precise issu e, or even the broader issue of when an unresponded-to statement can unconstitutionally nudge the jury toward conviction in a closeCase No. 16-2668, Bacall v. Stoddard

- 14 - case. And as the Court has made abundantly clear, we may not extend or in terpret its precedents to award habeas relief, even when we might do so on direct review. We cannot say that the Court’s precedent unambiguously forbids a convic tion under these circumstances. The Michigan Court of Appeals therefore did not unr easonably affirm Bacall’s conviction.
IV The AEDPA standard of review can appear harsh in some cases, including this one. But we cannot rewrite the rules Congress and the Supr eme Court have prescribed for us, and those rules dictate the outcome today. The judgment of the district court is AFFIRMED

.Case No. 16-2668, Bacall v. Stoddard

- 15 - MARTHA CRAIG DAUGHTREY, Circuit J udge, concurring. I concur in Judge McKeague’s well-crafted opinion that—in light of the present state of the law—affirms the district court’s denial of Hayes Bacall’s appl ication for a writ of habeas corpus. I write separately, however, to emphasize th e perversion of habeas corpus principles that has resulted from the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Supreme Court interp retations of that statutory scheme. The extent to which the once-Great Writ has been subverted is underscored by Judge McKeague’s recognition that the prosecutor in Bacall’s state court trial knowingly and intentionally lied during closing argument in a cas e with questionable evid ence of guilt and in which “the jury struggled deeply with the firs t-degree murder count.” Nor was the prosecution’s unethical act of minimal import. Indeed, as Judg e McKeague noted, “If this were direct review, we might find that a new trial was necessary.” That we would order a cure for a const itutional violation on di rect review but sit powerless to offer relief to Bacall in this co llateral proceeding demons trates just how far Congress and the judiciar y have gone since 1996 to eviscerate protections once deemed by the drafters of the Constitution to be essential to “the growth of fundame ntal rights of personal liberty.” Fay v. Noia , 372 U.S. 391, 401 (1963). Our Supreme Court once proclaimed that “the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired,” Bowen v. Johnston , 306 U.S. 19, 26 (1939), and that a state court “cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right.” Brown v. Allen , 344 U.S. 443, 508 (1953) (opinion of Fr ankfurter, J.). Ye t today, even in light of a clear federalCase No. 16-2668, Bacall v. Stoddard

- 16 - constitutional violation that mi ght well have condemned the petitioner to life in prison, we are forced to allow the egregious error by the prosecution to go unpunished.
In Fay , Justice Brennan proclaimed that “government must alwa ys be accountable to the judiciary for a man’s imprisonment: if the impr isonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release.” Fay , 372 U.S. at 402. Sadly, after the enactment of AEDPA and the Supreme Court’s interpretation of that statute, Justice Brennan’s words no longer ri ng true. Rather than s it silently in complicity with the congressional and j udicial renunciation of the ideal s upon which this country was founded, I concur in today’s decision only because of our duty to rule in accordance with the Supreme Court’s interpretati on of the law of the land.