NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 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. 

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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 his own son. He loved Jameel so much that 

he loaned him $400,000 after taking out multiple equity loans against his residence and business. 
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These loans were secured by nothing except for Bacall’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 principal, 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 lucky to get anything. 

 Welching on his debts was not Jameel’s only flaw. Jameel was known to draw his 

concealed firearms on anyone who made him too angry. Bacall testified that Jameel once used a 

shotgun to chase off a group of people who tried to cash a check that did not belong to them. He 

also once stuck his pistol in the face of a valet who told him he couldn’t park 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 his way to the station, he called Jameel 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. Eventually, both witnesses heard 

gunshots. Bacall exited the office, shook Bashi’s hand, went outside, and called 911. When the 
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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 placed 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 officer 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 that “[t]here are a lot of phrases 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 police station. During the drive, Bacall received a 

phone call from Jameel’s brother (Samir). The entire conversation was not translated to English, 

but from the parts that were, it is clear that Bacall 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 where he claimed that he shot 

Jameel in self-defense. He continued 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 station, Jameel got angry and threatened to “put it 

in your ass.” Bacall testified that this anger, combined with the small size of Jameel’s office and 

the fact that Jameel kept 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.” 
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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 testimony about what happened. 

Ballistics and forensic evidence were equally inconclusive. Samir—Jameel’s brother—testified 

that Bacall had frequently threatened to kill Jameel for defaulting on his debt by “empty[ing] the 

gun” into Jameel. But Samir admitted on cross-examination that he never reported any of these 

threats to the police, and his motive to lie is obvious. 

 During closing arguments, the prosecutor and 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 anything like self-defense. And on the witness 

stand, defense counsel asked the defendant—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 claimed self-defense. In obedience to the judge’s 

instructions, defense counsel raised his objection to this statement after the jury had retired to 

deliberate. The trial judge overruled the objection and refused to give a curative 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 they are unanimous, even though some may feel a 
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stronger verdict is what they believe?” The judge, after another objection from the defense,2

instructed the jurors that they should decide the case on whatever charge they could agree upon, 

that they could go back and forth between first-degree murder and voluntary manslaughter, that 

they should all keep their minds open to persuasion, but that none of them should give up their 

beliefs just for the sake of agreement. 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 few 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 Appeals 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 triggered double-jeopardy 

protections because it indicated that the jury was unanimous on a lesser charge; (2) that the jury’s 

brief, public deliberation was plain, reversible error; and (3) that the prosecutor made several 

improper statements3

 during argument that deprived him of a fair trial. Id. at *1–5. 

The court of appeals rejected all three claims. On the first claim, the court found that the 

jury had not made a decision because it had asked 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 also referred to Bacall as a “loan shark” and mentioned 

inadmissible evidence that Bacall had lied on his concealed-carry-permit application. 
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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 statements 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 conviction because the “overwhelming evidence” against Bacall resulted 

in a fundamentally fair trial. Bacall, at *3–5. The Michigan Supreme 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 either meritless or barred by the AEDPA standard of 

review. However, it granted a certificate 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 court has decided a federal issue on the merits, we 

may issue the writ only if the state court’s decision “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by the Supreme 

Court of the United States,” or if it “was based on an unreasonable determination of the facts.” 

28 U.S.C. § 2254(d). We presume that a state court decides all 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 federal issue is unreasonable under this standard only 
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if it “was so lacking in justification that [it committed] an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 

562 U.S. at 103. In other words, the mistake cannot 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 the specific holdings of the U.S. 

Supreme Court. Id. In a recent prosecutorial-misconduct case, the Court chastised us for 

applying our own interpretations of its cases to habeas petitions. Parker v. Matthews, 567 U.S. 

37, 48–49 (2012).4 

II

 The district court’s thorough analysis of this case leaves little for us to say on most of the 

issues. We agree completely with Judge Michelson’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 observation 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 applied 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. 
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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 recognized, the prosecutorial-misconduct claim is more difficult. 

The Michigan Court of Appeals held 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 refused 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 received from every court to review it.” Darden, 

477 U.S. at 179–81. Instead, such statements will only violate the constitutional 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 accorded 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 the 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 from multiple related cases in order to grant relief, 
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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 has 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 misstate the evidence, nor did it implicate other 

specific rights of the accused such as the right to counsel or the right to remain silent.” Id. at 

181–82. Second, “[m]uch of the objectionable 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 instructed 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 case makes it less likely that the jury was influenced by error. 

Id. Fifth, the defense counsel intentionally withheld his objection, knowing from his long 

experience with the prosecutor that 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 the 
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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 context, the prosecutor’s 

statements—referring to the defendant as an “animal” and lamenting that his face was not 

“blown away”—could not have added much to the heap of proof. Id. at 180 n.12, 182. 

This case is more complicated. The chief dispute 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 eyewitness to the killing contradicted himself, that Bacall had difficulty 

comprehending police questions about his motives, that the video recordings were inconclusive, 

and that Bacall had a good reason to be afraid of the victim. This was not an open-and-shut case 

for the defense either: Bacall brought a gun to the scene of the crime, and a witness did testify 

that Bacall had previously expressed a desire to shoot the victim (although these threats were 

never reported). Bacall also had several opportunities to explain to the police that he acted in 

self-defense, but instead blurted out, “I shot my nephew, he owes me $400,000” and insulted the 

deceased’s sister. 
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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, factual claim that the defendant had fabricated his defense at the 

last minute. The law recognizes the strong probative force of this sort of an accusation. See Fed. 

R. Evid. 801(d)(1)(B) (exempting from the hearsay rule statements “consistent with the 

declarant’s testimony . . . offered to rebut an express 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 these 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 murdering 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 government repeatedly asserted—through witnesses and argument—

that the underwear was covered in the victim’s blood. Id. at 2–5. This was a bald-faced lie. Id.

at 5–7. The government knew that the underwear was actually covered in red paint, and not a 

drop of blood. Id. On these facts, the Court vacated the 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 contrast, 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 misrepresenting facts to the jury. Id. at 84–85. The Court also ascribed importance to 
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the fact that “the case against Berger was not strong . . . [he] was convicted only of conspiracy 

and not of any substantive offense . . . upon the [sole] testimony of . . . an accomplice with a long 

criminal record.” Id. at 88–89. On these facts, the Court found that a new trial was necessary 

because the misconduct was so “pronounced and persistent, with a probable cumulative effect 

upon the jury which cannot be disregarded as inconsequential.” Id. at 89. 

 Here, Bacall contends that the prosecutor’s first-time comment was a per se violation of 

due process. Appellant’s Br. at 23 (“In this setting, 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 Process rights.”). His indignation 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 broader and clearly false affirmative assertion that 

defendant had never asserted self-defense at any time prior to trial.” Id. The prosecutor’s 

resurrection of the excluded concealed-carry-permit issue was also inappropriate. We disagree 

with the district court that this only had a slight impact on Bacall’s credibility. Failing to 

disclose a conviction for the unlawful discharge of a firearm on a concealed-weapon-permit 

application could seriously damage a jury’s willingness to believe the permit holder’s claim of 

self-defense. 

If this were direct review, we might find that 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 offered by the prosecution. The lies 

in Miller were repeated and egregious, in the sense that the truth, once revealed, rendered the 
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prosecution’s case virtually impotent. Miller, 386 U.S. at 3–7. In contrast, had the prosecutor 

refrained from improper argument here, he still had a fair case, albeit 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 dramatic exhibit in evidence may 

profoundly impress a jury and may have a significant impact on the jury’s deliberations. 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 prosecutor’s misstatements were inconsequential or 

appropriate—they weren’t. But we cannot say that they “so infected the trial with unfairness as 

to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181. 

C

 Finally, we address the remaining facts that Bacall raises in his defense. The trial court 

ordered Bacall’s attorney not to object during the 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 misstatements, but the court refused. Since the 

problematic statements were made in the prosecutor’s rebuttal, the defense had no opportunity to 

correct them before the jury. The misstatements therefore went into the jury room, unconfronted 

and uncorrected. 

 Disturbing as the situation is, we cannot grant habeas relief on this basis. None of the 

Court’s precedent addresses this precise issue, or even the broader issue of when an 

unresponded-to statement can unconstitutionally nudge the jury toward conviction in a close 
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case. And as the Court has made abundantly clear, we may not extend or interpret 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 conviction under these circumstances. The Michigan 

Court of Appeals therefore did not unreasonably 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 Supreme Court have prescribed for us, and those 

rules dictate the outcome today. The judgment of the district court is AFFIRMED. 

 
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 MARTHA CRAIG DAUGHTREY, Circuit Judge, 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 application for a writ of habeas corpus. I write 

separately, however, to emphasize the 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 interpretations 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 case with questionable evidence of guilt and in 

which “the jury struggled deeply with the first-degree murder count.” Nor was the prosecution’s 

unethical act of minimal import. Indeed, as Judge McKeague noted, “If this were direct review, 

we might find that a new trial was necessary.” 

 That we would order a cure for a constitutional violation on direct review but sit 

powerless to offer relief to Bacall in this collateral proceeding demonstrates just how far 

Congress and the judiciary have gone since 1996 to eviscerate protections once deemed by the 

drafters of the Constitution to be essential to “the growth of fundamental 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 Frankfurter, J.). Yet today, even in light of a clear federal 
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constitutional violation that might 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 always be accountable to the 

judiciary for a man’s imprisonment: if the imprisonment 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 ring true. Rather than sit silently in complicity 

with the congressional and judicial renunciation of the ideals 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 interpretation of the law of the land.