*

The Honorable Bobby R. Baldock, Circuit Judge of the United States

Court of Appeals for the Tenth Circuit, sitting by designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0295P (6th Cir.)

File Name: 04a0295p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

AARON LEIGH CYARS,

Petitioner-Appellant,

v.

GERALD HOFBAUER,

Respondent-Appellee.

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No. 02-2341

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-73103—Gerald E. Rosen, District Judge.

Argued: June 11, 2004

Decided and Filed: September 7, 2004 

Before: SILER, MOORE, and BALDOCK, Circuit

Judges.*

_________________

COUNSEL

ARGUED: N.C. Deday LaRene, LaRENE & KRIGER,

Detroit, Michigan, for Appellant. Joseph A. Puleo, OFFICE

2 Cyars v. Hofbauer No. 02-2341

1

The record does not disclose whether Petitioner exhausted his state

court post-conviction remedies. See Mich. Ct. R. 6.500 to 6.509. The

district court simply noted Petitioner filed his habeas application after

exhausting his direct appeals. Petitioner’s motion for a certificate of

appealability similarly states his habeas application was filed after

“exhausting his direct appeal rights.” We need not delve into the morass

of procedural bar, however, because Petitioner’s claim fails on the merits

even assuming he properly exhausted available state court remedies. See

28 U.S.C. § 2254(b)(2).

OF THE PROSECUTING ATTORNEY, Detroit, Michigan,

for Appellee. ON BRIEF: N.C. Deday LaRene, LaRENE &

KRIGER, Detroit, Michigan, for Appellant. Joseph A. Puleo,

OFFICE OF THE PROSECUTING ATTORNEY, Detroit,

Michigan, for Appellee.

BALDOCK, J., delivered the opinion of the court, in which

SILER, J., joined. MOORE, J. (pp. 16-19), delivered a

separate dissenting opinion.

_________________

OPINION

_________________

BALDOCK, Circuit Judge. A Michigan jury convicted

Aaron Leigh Cyars (Petitioner) on two counts of first-degree

premeditated murder, Mich. Comp. Laws Ann.

§ 750.316(1)(a), one count of assault with intent to commit

murder, id. § 750.83, and one count of possessing a firearm

during the commission of a felony, id. § 750.227b(1). The

Michigan court of appeals affirmed. People v. Cyars, No.

176536, 1997 WL 33353409 (Mich. App. Feb. 28, 1997)

(unpublished). The Michigan Supreme Court and United

States Supreme Court denied review. 

Petitioner subsequently filed an application for habeas

corpus in the district court pursuant to 28 U.S.C. § 2254.1

Petitioner asserted, among other things, he was denied

effective assistance of counsel because his trial counsel failed
No. 02-2341 Cyars v. Hofbauer 3

to proffer a limiting instruction on the jury’s use of

impeachment statements. The district court denied the

petition. We granted a certificate of appealability, see

28 U.S.C. § 2253(c), on the limited issue of whether

Petitioner was denied his Sixth Amendment right to effective

assistance of counsel. Applying the Antiterrorism and

Effective Death Penalty Act’s highly deferential standard for

reviewing state-court decisions, see Woodford v. Visciotti,

537 U.S. 19, 24 (2002) (per curiam), we affirm because the

Michigan court of appeals reasonably applied the correct

principle governing ineffective assistance of counsel claims

to the facts of Petitioner’s case.

I.

Petitioner used and dealt crack cocaine during the summer

of 1993. He sold crack primarily for two individuals, known

on the streets as “Rob and Lucky” or “Batman and Robin.”

Petitioner “rolled” (i.e., distributed drugs) out of a house on

Asbury Park street (Asbury House) in west Detroit. Veronica

Taylor resided in the Asbury House; however, Rob and Lucky

“rented” the house from Taylor to use as a “crack house.”

Petitioner earned roughly $100 a day, less the cost of any

drugs used on the job, for his services. 

Petitioner lost $700 and a handgun Rob and Lucky fronted

him in July 1993. Rob and Lucky were not pleased. Lucky

informed Petitioner he would have to work at the Asbury

House for seven days to pay for the lost money and three days

to pay for the handgun. Petitioner went to the Asbury House

around midnight on August 29, 1993 to commence work.

Petitioner met Thomas Lewis on the porch. Lewis, a known

“henchman” for Rob and Lucky, supervised the activities at

the Asbury House. Once inside, Lewis moved a refrigerator

to block the house’s front door. The refrigerator served as a

barricade to slow law enforcement officers in the event of a

raid. All of the house’s windows had bars save the window

in Taylor’s room. The house’s backdoor was also

inaccessible.

4 Cyars v. Hofbauer No. 02-2341

2

Petitioner testified he was “scared” from the moment Taylor was to

page Rob and Lucky. The record does not disclose, however, why

Petitioner simply did not leave the house when Lewis was with Christon.

In fact, Christon testified Lewis was not doing anything to keep Petitioner

in the house. 

Shortly after entering the house, Lewis put Petitioner to

work selling drugs. Lewis told Taylor to “page” Rob and

Lucky. Petitioner was scared of what might happen when

they arrived. Rob and Lucky never showed, but Leatha

Christon arrived at the Asbury House sometime after 2:00

a.m. Christon had arranged to engage in sexual intercourse

with Lewis in exchange for crack. Petitioner let Christon into

the house and then, by himself, moved the refrigerator back

across the front door. Lewis gave Petitioner a bag of crack

to sell while he was in the bedroom with Christon.2 After

Lewis andChriston consummated their transaction, Petitioner

again moved the refrigerator, by himself, to let Christon out

of the house. The record is silent as to whether Petitioner

moved the refrigerator back across the front door after he let

Christon out of the Asbury House. 

Nimrod Lumpkin arrived at the Asbury House around 3:00

a.m. The refrigerator was not blocking the front door when

he arrived. He went straight to Taylor’s bedroom where they

smoked marijuana and crack. Lumpkin was not aware

anyone else was in the house. Meanwhile, Petitioner was in

the house’s other bedroom selling crack out of a barred

window to customers. Lewis was lying on his stomach on a

bed in the same room facing Petitioner. A handgun was on

the bed next to Lewis. 

Petitioner sold the crack for approximately $20 per “rock.”

After Petitioner sold a $100 or so worth of crack, he would

give the money to Lewis who in turn would supply him with

more crack. Lewis, however, fell asleep after about an hour

of work. Petitioner then got up, grabbed Lewis’s gun, and

shot Lewis once in the back of the head. Shortly thereafter,

Taylor yelled “what’s that?” Petitioner cracked the door to
No. 02-2341 Cyars v. Hofbauer 5

3

Petitioner testified on his own behalf at trial. Petitioner’s version of

the events differed substantially from other evidence introduced at trial.

Petitioner testified he shot Lewis because Lewis was going for another

gun in his pants’ pocket. Other evidence at trial indicated, however, that

Lewis’s hand was near his face when he was shot. Additionally, no other

weapons were found on Lewis or in the house. Petitioner also testified he

could not leave out of the house’s front door because the refrigerator was

blocking the door. Petitioner explained that he attempted to move the

refrigerator, but it got caught on the carpet. Petitioner thus believed his

only other option was to leave through the window in Taylor’s room.

When Petitioner entered Taylor’s room, however, she had a knife and

went for a gun. Lumpkin, according to Petitioner’s testimony, also had

a gun. As noted, the police did not recover any such weapons. Petitioner

nevertheless testified he shot Taylor and Lumpkin in self-defense.

Petitioner admitted he thereafter left the Asbury House through its front

door. 

Taylor’s room and said Lewis was playing with a gun.

Petitioner then immediately entered the room with the

handgun pointed at Taylor who was moving toward her

window and saying, repeatedly, “Aaron don’t do it.”

Petitioner shot Taylor in the back of the head. Lumpkin,

however, was able to kick the gun as Petitioner turned and

fired in his direction. The kick redirected the shot into

Lumpkin’s arm and leg. Petitioner fired again, but was out of

bullets. Petitioner left the room and exited the house through

its front door. Lumpkin never heard any appliances being

moved after Petitioner left Taylor’s room.

3

 

Petitioner never called the police or any paramedics after

leaving the Asbury House. Instead, Petitioner visited two

groups of friends and explained to them how he killed two

individuals. He showed one friend, James Morrison, the gun

and crack he took from the house. Later, Petitioner discarded

the gun in a field and the crack in the sewer. The Detroit

Police Department arrested Petitioner. He confessed to

shooting Lewis, Taylor, and Lumpkin after waiving his

Miranda rights.

6 Cyars v. Hofbauer No. 02-2341

Petitioner claimed self-defense at trial. The State called,

among others, James Morrison, Don Bailey, and Todd Cyars

to testify in its case-in-chief. James Morrison was

Petitioner’s friend. During the homicide investigation, and at

the preliminary hearing, Morrison made the following

statement:

[Petitioner] said, “Man, I shot Veronica [Taylor], Stormy

[Thomas Lewis] and another basehead. Man, I popped

Stormy in the head one time. I shot Veronica somewhere

in the chest. I shot the other guy all over the place. 

At trial, Morrison first testified he was honest with the police

during the homicide investigation and when he testified at the

preliminary hearing. As the State’s examination of Morrison

proceeded, however, his memory faded and he ultimately

testified “[n]one of those [statements] c[a]me out of my

mouth.” (Joint App. at 260). The State impeached Morrison

with the signed statement he gave police and the preliminary

hearing transcript. 

The State also called Don Bailey, an acquaintance of

Petitioner. The Detroit police interviewed Bailey during the

homicide investigation. Bailey gave the police a signed

statement in which Bailey said Petitioner told him that

“[a]fter he shot Thomas [Lewis], he shot the other two people

because they were witnesses.” (Joint App. at 118). At trial,

the State asked Bailey if he made this statement. Bailey

denied making the statement, and then later admitted making

the statement, but attributed it to a person other than

Petitioner. 

The State also called Petitioner’s brother, Todd Cyars.

During the homicide investigation, Todd Cyars gave a signed

statement to the police. Todd Cyars informed the police

Petitioner stated prior to the murders “he was thinking about

sticking up [the Asbury] house and taking the dope” and, after

the murders, stated: “I did it. I did what I said I was going to

do[.]” (Joint App. 149, 162-63). At trial, Todd Cyars
No. 02-2341 Cyars v. Hofbauer 7

admitted making the statements to the police, but denied their

truth and claimed they were the product of a coercive

custodial interrogation.

After Morrison’s testimony on direct examination,

Petitioner’s counsel asked for a limiting instruction regarding

the State’s impeachment of Morrison. Specifically, counsel

asked for an instruction providing that impeachment

testimony did not constitute substantive proof of the matters

asserted, but instead went to the believability of the witness.

The trial judge responded that he had never given such an

instruction and was not going to “give it from the hips.”

(Joint App. 272). The judge instructed Petitioner’s counsel to

prepare an instruction and, afterwards, he would be glad to

look at the proposed instruction and give it at an appropriate

time. Petitioner’s counsel never renewed his request for a

limiting instruction, nor provided the judge a proposed

instruction. The court consequently never instructed the jury

on the proper use of impeachment statements. After the

court’s final jury charge, Petitioner’s counsel stated “[t]he

Defendant . . . thinks the jury has been appropriately

instructed.” (Joint App. at 337). 

II.

“The writ of habeas corpus plays a vital role in protecting

constitutional rights.” Slack v. McDaniel, 529 U.S. 473, 483

(2000). The Antiterrorism and Effective Death Penalty Act’s

(AEDPA) highly deferential standard for evaluating statecourt rulings, however, severely circumscribes a federal

court’s ability to grant the writ. Lindh v. Murphy, 521 U.S.

320, 333 n.7 (1997). Congress enacted AEDPA “[i]n the

interest of finality[,]” Miller-El v. Cockrell, 537 U.S. 322, 326

(2003), “to reduce delays in the execution of state and federal

criminal sentences,” Woodford v. Garceau, 538 U.S. 202,

206 (2003), “to prevent federal habeas ‘retrials[,]’ and to

ensure that state-court convictions are given effect to the

extent possible under law.” Bell v. Cone, 535 U.S. 685, 693

(2002). AEDPA is thus premised on Judge Learned Hand’s

8 Cyars v. Hofbauer No. 02-2341

4

AEDPA governs the habeas application Petitioner filed in 1999. See

Garceau, 538 U.S. at 207 (holding “an application filed after AEDPA’s

effective date should be reviewed under AEDPA[.]”). AEDPA’s

“contrary to” clause is inapposite because, as Petitioner admits, the

Michigan court applied the correct governing law in rejecting his

ineffective assistance of counsel claim. Cyars, 1997 WL 33353409, at *4

(citing People v. Pickens, 521 N.W. 2d 797, 815 (Mich. 1994) (adopting

the Supreme Court’s two-pronged test enunciated in Strickland v.

Washington, 466 U.S. 668 (1984) for analyzing ineffective assistance of

counsel claims)). Furthermore, the Strickland analysis for evaluating

ineffective assistance claims is “clearly established.” Wickline v. Mitchell,

319 F.3d 813, 819 (6th Cir. 2003).

observation that, if courts are to survive as an institution, they

cannot “become Penelopes, forever engaged in unravelling

the webs they wove.” Jorgensen v. York Ice Mach. Corp.,

160 F.2d 432, 435 (2d Cir. 1947). To these ends, § 2254

provides in relevant part:

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim – 

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States[.]

28 U.S.C. § 2254(d)(1). 

Petitioner concedes, as he must, § 2254(d)(1)’s

“unreasonable application” clause governs the disposition of

his case.

4

 (Aplt’s Br. at 11). A federal habeas court “may

grant relief under the ‘unreasonable application’ clause if the

state court correctly identifies the governing legal principle

from [the Supreme Court’s] decisions but unreasonably

applies it to the facts of the particular case.” Cone, 535 U.S.

at 694. The Court has repeatedly stressed that “[i]n order for

a federal court to find a state court’s application of [its]
No. 02-2341 Cyars v. Hofbauer 9

precedent ‘unreasonable,’ the state court’s decision must have

been more than incorrect or erroneous.” Wiggins v. Smith,

539 U.S. 510, –, 123 S. Ct. 2527, 2535 (2003). Instead, the

state court’s application of clearly established law must be

“objectively unreasonable.” Id. 

A federal habeas court, therefore, may not grant the writ

simply because, in its independent review of the legal

question, it is left with a firm conviction that the state court

was erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

Quite the opposite, as the Court recently clarified, “the range

of reasonable judgment can depend in part on the nature of

the relevant rule.” Yarborough v. Alvarado, – U.S. –, 124 S.

Ct. 2140, 2149 (2004). Specifically, “[a]pplying a general

standard to a specific case can demand a substantial element

of judgment. As a result, evaluating whether a rule

application was unreasonable requires considering the rule’s

specificity. The more general the rule, the more leeway

courts have in reaching outcomes in case by case

determinations.” Id. The federal habeas scheme thus vests

state courts with the primary responsibility of determining

whether a particular defendant’s constitutional rights were

violated; and, a federal court may only intervene in that

judgment when the state-court’s decision is objectively

unreasonable. Visciotti, 537 U.S. at 27.

III.

Petitioner argues on appeal habeas relief is appropriate

because the Michigan court unreasonably applied Supreme

Court precedent to his ineffective assistance claim. Petitioner

specifically argues the Michigan court erred in holding he did

not suffer any prejudice as a result of his counsel’s failure to

proffer a limiting instruction on the statements used to

impeach the State’s witnesses at trial. See Cyars, 1997 WL

33353409, at *4. 

10 Cyars v. Hofbauer No. 02-2341

A.

The Sixth Amendment provides a criminal defendant with

the right to effective assistance of counsel because of the

effect the right has on a defendant’s ability to receive a fair

trial. Mickens v. Taylor, 535 U.S. 162, 166 (2002). “The

benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). Consequently,

“defects in assistance that have no probable effect upon the

trial’s outcome do not establish a constitutional violation.”

Mickens, 535 U.S. at 166. Whether a constitutional violation

occurred as a result of counsel’s assistance is determined

under the familiar two-pronged Strickland test: “First, the

defendant must show that counsel’s performance was

deficient. . . . Second, the defendant must show that the

deficient performance prejudiced the defense.” Strickland,

466 U.S. at 687. We assume without deciding Petitioner

satisfied the first prong. See id. at 697 (explaining “[i]f it is

easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, . . . that course should be

followed.”). 

The issue, then, is whether the Michigan court’s rejection

of Petitioner’s ineffective assistance claim was an

unreasonable application of Strickland’s prejudice prong. To

demonstrate prejudice, “[t]he defendant must show that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. AEDPA circumscribes our

review of the Michigan court’s conclusion that Petitioner did

not suffer any prejudice. Cf. Wiggins, 123 S. Ct. 2542. In

fact, § 2254(d) “demands that [the] state-court decision[] be

given the benefit of the doubt.” Visciotti, 537 U.S. at 24.
No. 02-2341 Cyars v. Hofbauer 11

B.

The Michigan court reasonably applied Strickland’s

prejudice prong to the facts of Petitioner’s case. The court

explained that “[b]ecause the weight and strength of the

untainted evidence presented in this case overwhelmingly

supports defendant’s convictions, and because the error is

relatively innocuous (indeed, it was not error for the prior

inconsistent statements to be put before the jury, only that the

jury could not consider those statements as substantive

evidence), we conclude that defendant was not prejudiced in

this regard.” Cyars, 1997 WL 33353409, at *3 (emphasis

added). We agree. The State had the burden of proving

Petitioner’s intentional killing of the victims was deliberate

and premeditated. People v. Coddington, 470 N.W. 2d 478,

487 (Mich. App. 1991). “Premeditation and deliberation may

be inferred from the facts and circumstances established on

the record.” Id. Circumstantial evidence demonstrating

premeditation includes, but is not limited to (1) the prior

relationship of the parties, (2) defendant’s actions before the

killing, (3) the circumstances, including the wound’s location,

of the killing, and (4) defendant’s conduct after the killing.

Id.; see also People v. Anderson, 531 N.W. 2d 780, 786

(Mich. App. 1995). “Premeditation and deliberation require

sufficient time to allow the defendant to take a second look.”

Id.

The record overwhelmingly supports the jury’s first degree

murder verdicts, as the Michigan court held, even without

considering the statements used to impeach Morrison, Bailey,

and Todd Cyars. A reasonable jury could infer Petitioner

knew, from past experience, nefarious activities would be

afoot during his visit to the crack house on August 29, 1993.

The jury could also infer Petitioner formulated a plan to kill

Lewis as he distributed drugs from the house’s backroom

window. Indeed, Petitioner’s claim that he was scared of Rob

and Lucky’s arrival at the Asbury House was undermined by

the fact he could have left the house while Lewis was with

Christon, but instead opted to stay and sell drugs. Petitioner

12 Cyars v. Hofbauer No. 02-2341

sat patiently until Lewis fell asleep and then got up, stole his

gun, and shot him in the back of the head. A jury could

reasonably infer Petitioner had the opportunity to take a

“second look” before he executed Lewis in his sleep. 

A reasonable jury, moreover, could have easily rejected

Petitioner’s theory that he was unable to leave the Asbury

House after killing Lewis because a refrigerator, which he had

twice moved himself that evening, was blocking the front

door. In fact, the evidence demonstrated the refrigerator was

not even blocking the front door after Petitioner shot Lewis.

A reasonable jury thus could infer that instead of simply

leaving the Asbury House after killing Lewis, Petitioner took

a “second look” and elected to enter Taylor’s room. Upon

entering Taylor’s room, Petitioner shot her in the back of the

head as she pleaded with him not to kill her. A reasonable

jury could thus infer Petitioner had the opportunity to take a

“third look” before shooting Taylor. Petitioner then turned on

Lumpkin who likely would have also been killed but for the

fact Petitioner ran out of ammunition. Petitioner then left the

house through its front door; the very door Petitioner claimed

prevented him from exiting the house in the first instance.

After the murders, Petitioner did not call the police to

inform them he had escaped from a near-death hostage

situation. Instead, he told various friends about the killing

and showed off the murder weapon and drugs he looted from

the house. Petitioner thereafter discarded the murder weapon

and drugs in a manner sufficient to prevent authorities from

recovering the evidence. A reasonable jury could infer guilt

from such evidence. 

In sum, circumstantial evidence before, during, and after

the murder supported the jury’s verdict that Petitioner

intentionally killed Lewis and Taylor with deliberation and

premeditation. Indeed, the Michigan court of appeals, a

United States magistrate judge, and the district court have so

found. Furthermore, we denied Petitioner a certificate of

appealability on the claim he was denied due process of law
No. 02-2341 Cyars v. Hofbauer 13

because insufficient evidence of premeditation existed to

support his first degree murder convictions. That certificate

of appealability denial means reasonable jurists could not find

the district court’s assessment of the claim debatable or

wrong. See 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 338.

Petitioner nevertheless argues the Michigan court

unreasonably applied Strickland’s prejudice prong for four

reasons. First, Petitioner argues the Michigan court of

appeals incorrectly applied Strickland. This argument is

irrelevant under AEDPA. See Wiggins, 123 S. Ct. at 2535.

Second, Petitioner arguestheMichigan court misapprehended

the scope of the evidence a limiting instruction would have

affected and actually relied on the “tainted evidence” to

affirm his conviction. The overwhelming circumstantial

evidence of Petitioner’s guilt and the jury’s rejection of his

claim of self-defense, however, is the death-knell of this

argument. See also Cyars, 1997 WL 33353409, at *3.

Third, Petitioner argues the Michigan court erroneously

held he did not suffer any prejudice because the jury was

instructed only to consider the “sworn testimony of

witnesses,” which necessarily excludes statements the State

used to impeach witnesses. This argument runs afoul of the

well-established presumption jurors follow their instructions.

See Penry v. Johnson, 532 U.S. 782, 799 (2001). Fourth,

Petitioner complains no evidence existed showing he planned

to commit any crime against the victims, or that he had a

“motive” for the killings, and some evidence corroborated his

trial testimony. Petitioner’s final argument is flawed because

evidence of “planning” and “motive” are not necessary to

sustain a first-degree murder conviction under Michigan law.

See Coddington, 470 N.W. 2d at 487 (finding a “brief”

passage of time sufficient for the defendant to take a “second

look”); People v. Herndon, 633 N.W. 2d 376, 404 (Mich.

14 Cyars v. Hofbauer No. 02-2341

5We agree with Petitioner that some evidence corroborated his trial

testimony. We also agree with counsel’s contention at oral argument that

the impeachment statements were the only “direct evidence” of

premeditation. These arguments are also irrelevant, however, because

premeditation may be inferred from facts and circumstances established

in the record. Coddington, 470 N.W.2d at 487.

App. 2001) (explaining evidence of motive is not necessary

to sustain a first-degree murder conviction).5

In short, Petitioner failed to carry his heightened AEDPA

burden. See Mitchell v. Esparza, – U.S. –, 124 S. Ct. 7, 12

(2003) (per curiam). He had the burden of demonstrating the

Michigan court’s decision was objectively unreasonable, not

that it may have applied Strickland incorrectly. See Visciotti,

537 U.S. at 27. Petitioner cannot carry his burden because the

Michigan court’s conclusion that Petitioner did not suffer any

prejudice is reasonable in light of the overwhelming

circumstantial evidence of his guilt. No reasonable

probability exists that but for counsel’s failure to proffer a

limiting instruction on the proper use of impeachment

statements the result of the trial would have been different.

See Strickland, 466 U.S. at 696, 700 (explaining trial errors

are less likely to affect a verdict with “overwhelming record

support”). As the Court recently explained, state courts have

more leeway in reaching a particular outcome when they

apply general rules of law. Alvarado, 124 S. Ct. at 2149. The

Strickland test, by its nature, is general and not subject to

mechanical application. Strickland, 466 U.S. at 696;

Kimmelman v. Morrison, 477 U.S. 365, 395 (1986) (Powell,

J., concurring). We therefore must defer to the Michigan

court’s reasonable conclusion that Petitioner did not suffer

any prejudice as a result of his counsel’s failure to proffer a

limiting instruction on the proper use of impeachment

statements. The adversarial process clearly provided

Petitioner with a fair trial. That is all the Sixth Amendment

demands.
No. 02-2341 Cyars v. Hofbauer 15

The Michigan court “considered the proper factors and

reached a reasonable conclusion.” Alvarado, 124 S. Ct. at

2152. “That being the case, we may not set aside its decision

on habeas review.” Esparza, 124 S. Ct. at 12.

AFFIRMED. 

16 Cyars v. Hofbauer No. 02-2341

________________

DISSENT

________________

KAREN NELSON MOORE, Circuit Judge, dissenting.

Because I believe Aaron Cyars’s counsel’s failure to secure

a limiting instruction on the appropriate use of prior

inconsistent statements constitutes ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668 (1984),

and that a contrary view is unreasonable, I respectfully

dissent.

At trial, the prosecution called three key witnesses, James

Morrison (“Morrison”), Don Bailey (“Bailey”), and Todd

Cyars (“Todd”), to demonstrate that Cyars acted with

premeditation and deliberation when he committed the

murders. When each witness did not produce any valuable

evidence on direct examination, the prosecution proceeded to

use unsworn statements allegedly made to police after the

murders. These statements contained highly damaging

comments that Cyars purportedly made to the witnesses

regarding his plan to steal drugs from Taylor’s house and his

admission after the fact that he had completed his plan. When

confronted with the police statements, each of the three

witnesses denied having made the statements or denied the

truth of the statements. Because the police statements were

introduced solely to impeach the witnesses, they could not be

considered as substantive evidence.

Cyars’s trial counsel sought a limiting instruction from the

trial judge permitting the use of the police statements of

Morrison only for impeachment purposes. Because the judge

had never given that kind of instruction before, he asked

Cyars’s counsel to draft a proposed instruction that he could

consider before issuing such an instruction. However,

Cyars’s trial counsel failed to present any limiting instruction

and never again renewed his request. As a result, the jury was

never instructed on the proper use of the prior inconsistent
No. 02-2341 Cyars v. Hofbauer 17

statements, and was therefore permitted to give whatever

weight it wished to the prior inconsistent police statements.

These statements were the most damaging evidence of

premeditation.

The Michigan Court of Appeals relied on the contents of

these police statements when that court upheld the sufficiency

of the evidence to support Cyars’s conviction for first-degree

murder. Specifically, it stated:

There was evidence that before the shooting, defendant

told two of the prosecution’s witnesses that he intended

to take drugs from one of the decedents’ homes in order

to repay a debt owed to drug dealers for whom defendant

worked. There was also evidence that sometime after

the shooting, defendant told those same witnesses that he

had completed what he earlier planned to do.

Joint Appendix (“J.A.”) at 13. The Magistrate Judge found

that the only source for these conclusions of the Michigan

Court of Appeals was the unsworn police statements of

Morrison and Todd. Thus, the Michigan Court of Appeals

made substantive use of the very evidence that the jury should

have been instructed to use only for impeachment purposes.

This demonstrates both that there was little evidence of

premeditation, and that even judges, let alone juries, are likely

to be confused without proper instructions.

The Michigan Court of Appeals, despite its mistake of

using the prior inconsistent statements for substantive

purposes when evaluating the sufficiency of the evidence, did

nonetheless recognize as black-letter law the principle that

“Prior inconsistent statements not ‘given under oath subject

to the penalty of perjury’ are hearsay and would only be

admissible for impeachment purposes, not as substantive

evidence.” J.A. at 14-15. Nonetheless, the Michigan Court

of Appeals determined that there was no showing of

prejudice. Specifically, that court wrote:

18 Cyars v. Hofbauer No. 02-2341

Defendant has not shown that the prior inconsistent

statements of the witnesses, properly limited with an

instruction, could have proved his theory of self-defense

or disproved the elements of the offenses. Because the

weight and strength of the untainted evidence presented

in this case overwhelmingly supports defendant’s

convictions, and because the error is relatively innocuous

(indeed, it was not error for the prior inconsistent

statements to be put before the jury, only that the jury

could not consider those statements as substantive

evidence), we conclude that defendant was not

prejudiced in this regard.

J.A. at 15-16.

In this appeal, the question for this court is whether Cyars

has shown ineffective assistance of counsel warranting the

grant of habeas relief. We apply the analysis of Strickland,

466 U.S. at 694, with its two prongs, deficient performance

and prejudice. First, Cyars must demonstrate that his trial

counsel’s failure to requestthe limiting instruction constituted

“deficient performance.” Then, he must prove that he

suffered prejudice as a result of the deficient performance of

counsel. Under this latter prong, Cyars must show that “there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.” Caver v. Straub, 349 F.3d 340, 347-48 (6th

Cir. 2003) (quoting Strickland, 466 U.S. at 694).

The majority of this court assumes that Cyars has shown

deficient performance of counsel. It is without doubt that that

prong has been satisfied. Turning to the second prong, the

majority concludes that the Michigan Court of Appeals’

opinion is a reasonable application of the prejudice prong of

Strickland. This conclusion is unreasonable where the

Michigan Court of Appeals itself has misused the very

evidence that can only be used for impeachment purposes,

and where there is slim other evidence to support a finding of

premeditation. Moreover, the Michigan Court of Appeals
No. 02-2341 Cyars v. Hofbauer 19

completely misstated and misapplied the law when it required

Cyars, in order to demonstrate prejudice under Strickland, to

show that “the prior inconsistent statements of the witnesses,

properly limited with an instruction, could have proved his

theory of self-defense or disproved the elements of the

offenses.” J.A. at 15. 

For these reasons, and as thoroughly and ably articulated by

Magistrate Judge Steven Pepe in his exhaustive Report and

Recommendation, a conditional writ of habeas corpus should

issue. 

I respectfully dissent.