* The Ho nora ble B obb y R. B aldo ck, C ircuit Judge of t he United State s Co urt of A ppe als for the Te nth Circ uit, sitting by d esigna tion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0295P (6th C ir.) File Name: 04a02 95p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
A ARON L EIGH C YARS , Petitione r-Appell ant,

v.

G ERALD H OFBAUER , Respondent-Appellee. X

- - - -
> , - - N No. 02-2341

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-73103—Gerald E. Rosen, District Judge.

Argued: June 11, 2004 Decided and Filed: September 7, 2004

Befor e: SIL ER, MOORE, and BAL

DOCK, Circ

uit Judges. *

_________________ COUNSEL

ARGUED: N.C. Deday LaRe ne, L aRENE &

KRIG ER, Detroit, Michiga

n, for Ap pellant. Joseph A. Puleo, O FFI CE 2 Cyars v. Hofbauer No. 02-2341

1 The reco rd d oes n ot disc lose w hether Petitio ner ex hauste d his state court post-c onvic tion rem edies

. See Mich. Ct. R. 6.500 to 6.509 . The dist rict court s imply noted Peti tioner fil ed his h abeas appli cati on aft er exhausting his direc t app eals. P etit ione r’s moti on for a cer ti fi cate of app ealab ility simi larl y st ates h is hab eas applicat ion was f iled af ter “exhausting his di rect appeal rig hts .” We need n ot delve into the mo rass of pro ced ural ba r, how ever, b ecau se Pe titioner’s cla im fails on the me rits

even assumi ng he pr ope rly exha usted availab le state cour t reme dies. See 28 U.S.C. § 22 54(b)(2). OF THE PROSECUTING ATTORNEY, Detroit, Michigan, for Appellee. ON BRI EF: N.C. Deday LaRene, LaRENE & KRIG ER, Detroit, Michigan, for Appellant. Joseph A. Puleo, OFFI CE OF THE PRO SECUTI NG ATTOR

NEY, Det

roit, Michigan, for Appellee.
BALDOCK, J., delivered the opinion of the court, in which SIL ER, J., j oin ed. MOO RE, J. (pp. 1 6-19), delivered a separate dissenting opinion.

_________________ OPINION

_________________ BALDOCK, Circuit Judge. A Michigan jury co nvicted Aaron Leigh Cy ars (Petitioner) on two counts of first-degree pre meditated murde r, Mich. Comp. Laws Ann

. § 750.316( 1)(a), one coun t of assa ult w it h intent to c ommit murder, id. § 750.83, and one count of possessing a firearm durin g the commission of a felony, id. § 750.227b(1). Th e Michigan court of appeals affirmed. People v . Cyars , No. 176536, 199 7 W L 333 53409 (Mich. App. Feb. 28, 1997) (unpublished). Th e Michigan Supreme Court and United States Supreme Court denied review.

Petitioner subsequently filed an a pplication for habeas corpus in the district court pursuant to 28 U.S.C. § 2254. 1 Pet itione r asserted, among other things, he wa s denied effective assistance of

counsel because his trialcounsel failedNo. 02-2341 Cyars v. Hofbauer 3

to proffer a limiting instruc tion on the jury’s use of impeachment

statemen

ts . T he district court denied the petition. We gran

ted a ce rtifica te of app ealabili

t y, 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 Antiterrori sm an d Effective Death Penalty Ac t’s highly def

erential standard for reviewing state-court decisions, see Wo odford v. V isciotti , 537 U.S. 19, 24 (2002) (per curiam), we affirm be caus e th e M ichigan court of appeals reasonably applied the corre c t principle gover ning ine ffectiv e assista

nce of c ounsel cl aims to the facts of Petitioner’s case.

I.

Petitioner used and dealt crack cocaine dur ing the summer of 1993. He sold crack

primarily for two individuals, known
o n the streets as “Rob and Lucky ” or “Batman and Robin.” Petitioner “rolled” (i.e., distributed drugs) out of a hous e on Asbury Park street (Asbury

House) in west Detroit. Veronica Taylor resided in the Asbury House; howe ver, Rob and Lucky “rented” th e house from Tay lor to use as a “crack house.” Petitioner earned roughly

$100 a day, less the c ost of a ny drugs used on the job, for his services.

Petitioner lost $700 and a

handgun Rob and Lucky

fronted h imin July 1993. Rob and Lucky were not pleased . Luck

y informe d P etitioner he would have to work at the Asbury Housefo r s ev en da ys t o p ay f or th e l os t m on ey a nd th re e d ays to pay for the

handgun. Petitioner went to the Asbu

ry House
aro und m idnight 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 r efrigerator to block the house’s front door. The refrige rator served as a barricade to slow law enforcement officers i n the event of a raid. All of the house’s windows had bars save the window inTaylor’s room. The hou se’s backdoor was als o inaccessible. 4 Cyars v. Hofbauer No. 02-2341

2 Petit ioner testi fied he was “scared” from the moment Ta ylor wa s to page Rob and Lucky. The record does not disclose, however, why Petit ioner simply did not l eave the house when Lewis was with Christ on. In fact, Christo n testified L ewis wa s not d oing a nything to keep Petit ioner in the ho use. Shortly after enter ing the house, Lewis put Pe titioner t o work selling drugs. Lewis told Ta ylor to “pag e” Rob and Luc ky. Petitioner

was sca red of w hat migh t happen when they arrived. Rob and Lucky never showed, but Lea t ha Christon arrived at the Asbury House sometime aft er 2 :00
a.m. C hrist on had ar

range d to eng age in s exual inter course with Lewis in excha

nge for crack. Petitioner let Chr iston into the house and then, by himself, moved the refrigerator bac k
acrossthe front door. Lewis g ave Petitioner a bag of crac k to sell while he was in the bedr oom with Christon. 2 After Lewis and Christon c onsummated their transaction, Petitioner again moved the refrige rator, by himself, to let Christon out of the house . The re cord is silent as to whether Petitioner moved the refrigerator bac

k 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 ref

riger ator was n ot b locking the front door when he arrived. He went straight to Tay lor’s bedroom where they smoked marijuana and crac k. L umpkin was not aware anyone e lse was in the house. Meanwhile, Petitioner was in the house’s other bedroom selling crack out of a barred window to customers. Lewis was ly ing 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 c rack, he would give the money

to Lewis who in tur

n would sup

ply him with
more crack. Lewis, howev er, fel l asleep after about an hour of wor k. P eti ti one r th en g ot up, gra bbe d Le wi s’s gun, and sh ot Lewis once in the back of the head. Shortly there after, Taylor yelled “wha

t’s that?” Petitioner cracked the door toNo. 02-2341 Cyars v. Hofbauer 5

3 Petit ioner test ifi ed on his ownbehalf at tri al. Peti ti oner’ s ver sion of the events d iffered su bstan tially from o ther ev id ence introd uced at trial. P etitioner testified he shot Le wis be cause Lewis w as go ing fo r anothe r gun in h is pants ’ pock et. Other evi dence a t t

ria l i ndica ted, however, that Lew is’s hand was near his f ace when he wa s shot. Additi onally , no othe r weapons were f

ound on Lewis or

in t he house. Petit ioner also test ifi ed he

cou ld not lea ve ou t of the ho use’s fr ont door becaus e th e ref

rig erat or was blocking th e door . Pe ti ti oner expl ain ed t hat

he a tt empt ed t o mo v e the refr igerator, but it go t caugh t on the c arpe t. Petition er thus b elieved his only othe r opti on was to le ave th roug h t he w in dow i n Tay lor ’s room. W hen Petitioner entered Taylor’s r oom , however, she had a knife and went for a gun. Lump kin, accord ing to Petitioner’s test im ony, al so had

a gun. As noted, the poli ce did not recover any such weapons. Pet iti oner nevertheless test ifi ed he s hot T aylor and Lumpkin i n self -defen se. Petit ioner adm itted he th ereaft er left t he Asbury House through its front doo r. Taylor’s room and sai d Lewis was play ing with a gun. Petitioner then immed

iately entere d the room

w ith the handgun poin ted at Taylor wh o was m ovin g t ow ard her window and saying , repeatedly , “Aaron don ’t do it.” Petitioner shot Tay lor in the back of the head. L umpkin, however, was able to kick the gun as Petitioner t urned and fired in his direction. The kic k redire cted the shot into Lumpkin’s arm

and leg. Petitioner fired again, but wa s outof bullets. Petitioner left the room and exit ed the house throu gh its front door. Lumpk

in never heard any

appliances being moved af ter Petiti oner lef

t Tay lor’s room. 3

Petitioner never called the police or an y pa ramedics after leavingthe Asbury House. Instead, Petitioner visited two gro ups of friends and explained to them how he killed t w o individua ls. He showed one friend, James Morrison, the gun and crack he took from the house. Later, Petitioner discar ded the gun in a field and the crack in th e sewer . The Det

roit Polic e Department arrested Petitioner. He confe ssed t o shooting Lewis, T aylor, and Lumpki n after waivi ng h i s Miranda rights. 6 Cyars v. Hofbauer No. 02-2341

Petitioner claimed self-defense at trial. The State ca lled, among others, James Morrison, Don Bailey , and Todd Cyars to testify in its case-in-c hief. James Morris on was Petitioner’s friend. During the homicide investigation, and at the preliminary hea

ring, Morrison

mad e the following statemen t: [Petitioner] said, “Man, I

shot Veronica

[Tay lor], Stormy [Thom as Lewis] and another basehea d. Man, I popp e d Stormy in the head one time. I shot Veronica somewhere in the chest. I shot the other g uy all over the plac e.
At trial, Mor rison first testifie d 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, howeve r, his memory faded a nd he ultima

tely testifie d “[n] one of tho se [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.

Th e Sta te also called Don Bailey , an acquaintance of Petitioner. The Detr

oit police interviewed Bailey during the homicide in ve st ig at io n. Ba il ey gave the police a signed statement in which Bailey

said Pet it ioner told him that “[a]fter he shot Thomas [Lewis], he shot the other two peopl e because they

were witnesses.” (Joint

App. at 118). At trial, the State asked Bailey

if he m ade this statement. Bailey denied making the statement, and then later admitted making the statement, but attributed it to a person other than Petitioner.

The Stat e also ca

lled Petiti oner’s brother, Todd Cy ars. During the homicide investigation, Todd Cyar s gave a signed statement to the po lice. Todd Cyars infor med 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 sai d I wa s going

to do[.]” (Joi nt App. 149, 162-63). At trial, Todd CyarsNo. 02-2341 Cyars v. Hofbauer 7

admitted making the statemen

ts to the polic e, but den

ied their truth and claimed they

were the product of a c oer cive custodial interrogation.

After Morrison ’s testimony on direct exami na tion, Petitioner’s counsel asked for a limiting instruction regarding the State’s impeachment of Morrison. Spec if ically, counsel asked for an instruction p rov iding that impeachment testimony did not constitute substantive proof of the matters asserted, but instead went to the bel ievabilit

y of the witne ss. The trial judge responded that he had never given such a n instruction and was n

ot going to “giv e it fro m the hips.” (Joint App. 272). The judge instructed Petitioner’s counsel t

o prepare an instru

ction and , after

wards, h e would be

glad to look at the pr oposed ins truction a

nd give it at an appropriate time. Pe titioner’s counsel never renewed his reque st for a limiting instruct ion, nor provided the judge a proposed instruction. The court consequently never instructed the jury
on the proper u se of impe achment statemen ts. After th e court’s final j ury char

ge, Petitioner’s counsel stated “[t]he Defendant

. . . thinks the jury has been app ropriate ly instructed.” (Joint App. at 337).

II.
“The writ of habeas corpus plays a vital role in pro tec ting constitutional rights.” Slack v. McDaniel
, 529 U.S. 473, 483 (2000). The Antiterrorism and Effective Death Penalty Act’s (AEDPA) highly def

erent ial standard for evaluating statecourt rulings , howeve

r, se vere ly circumscribe s a federal court’s ability to grant the w rit. Lindh v. Murphy , 521 U.S. 320 , 333 n. 7 (19 97). Cong ressenacted A

EDPA “ [i]n

th e interest of finality[,]” Miller-E

l v. Cock rell
, 537 U.S. 322, 326 (2003), “t o r ed uc e d el ays in the exec ution of sta

te and federal criminal sentences,” Woodford v. Garceau , 538 U.S. 202, 206 ( 2003), “to preve

nt feder al habea s ‘retri als[,]’ and to
ensure that s tate- court convi ction s are gi ven effect to the extent possible

under law.” Bell

v. Cone , 535 U.S. 685, 693 (2002). AEDPA is th us pre mised on Ju dge Learned Ha nd’s 8 Cyars v. Hofbauer No. 02-2341

4 AEDPA gove rns the h abe as ap plicatio n Pe titioner filed in 199 9. See Garceau , 538 U .S. at 20 7 (ho lding “a n app lication filed after AE DP A’s eff ec tive dat e sh oul d be r evi ewed unde r AEDPA[. ]”) . AEDPA’ s “contrary to” cla use is inap pos ite bec ause, a s P etiti oner admits, the Michigan court applied the correct governing l aw in r ejec ti ng his ineffect ive assistanc e of co unsel cla im. Cya rs , 1 99 7 WL 33353409, at *4 (citi ng People v. Picke ns , 521 N.W . 2d 797, 815 (Mich. 1994 ) (adopting the Supreme Co urt’s two-pronged test enunc iat ed in Stri ckland v. Washingt

on , 466 U.S. 668 (1984) for an alyzi ng inef fect ive as sis tance of counsel cla ims) ). Fu rtherm ore, t he Stri ckland

analysi s for evaluat ing ineffect ive ass is tan ce cl aim s is “ clearl y est ablis hed.” Wick line v. M itchell
, 319 F.3d 813, 819 (6th Cir. 2003). observation

that, if courts are to survive as an institution, they cannot “become Penelopes, for ever engage d in unravelling the we bs th ey w o ve.” Jorgensen v. York Ice Mach. Corp.
, 160 F.2d 43 2, 435 (2d Cir. 1947). To these ends, § 2254 provides in relev ant part : (d) An application

for a writ of ha

beas cor pus on behalf of a person in custody pursuant to the judg

ment of a State court shall not be granted with resp ect to an

y c laim that
was adjudicated

on th e meri ts in Stat e court procee dings unless the adjudication of the claim – (1) resulted in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Federal law, as determined by the Supreme Court of the United States[.] 28 U.S.C. § 2254(d)(1).

Petitioner conce des, as he must, § 2254(d)(1)’s “unrea sonable

application” clause governs the disposition of his case. 4 (Aplt’s Br. at 11). A f ed eral habeas court “may grant relief under the ‘unreasonable application’ clause if the state co ur t c or re ct ly identi fies the governing legal principle from[the Supreme Court’s] decision s but unrea sonably 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 ap pl ication o f [its]No. 02-2341 Cyars v. Hofbauer 9

precedent ‘unreasonable,’ the state cou rt’s dec ision must have been more than incorrect or erroneous.” Wiggi ns v. Smith
, 539 U.S. 510, –, 123 S. Ct. 2527, 2535 (2003). I nstead, the state court’s

applic atio n of clearly

established law must be “objectively unre asonable.” Id.

A federa l habe as cou rt, th erefor e, may not gr ant the writ simply because , in its inde pendent review of the legal question, it is left with a fi rm conv iction that the state court
was errone ous. Lockyer v. Andrade
, 538 U.S. 63, 75 (2003). Quite the op posi te, as the Co urt re centl y clarifi ed, “t he range of reasonable judgment can depend in pa rt on the nature of the relevant rule.” Yarborough v. Alvarado , – U.S. –, 124 S. Ct. 2140, 2149 (2004) . Spec ific ally, “[a ]pplyin g a general standar d to a specific case can demand a substantial element of judgmen

t. As a result, e

valuatin g whether a rul e applicationwas unre asonable requires considering the rule’s specific ity

. The more general the rule, the more leeway courts have in r

eaching outcomes

in case by c ase determinations.” Id. The fed eral ha beas scheme thus v ests state courts with the primary r esponsibi l ity of determining whether a particular de f

endant’s constitutional rights were violated ; and, afederal court may only intervene in that judgment whe n the state -court’ s decision is objec tively unreasonable. Visciotti , 537 U.S. at 27.

III.
Petitioner argues on appeal habea s re lief i s appropr iate because the Michigan court

unreasonably

applied Su

preme Courtpreced

ent to his ineffec tive assis tance c laim. Petitioner specific ally

argues the Michigan court erred in holding

he did notsuffer any prejudic e as a re sult of his c ounsel’s failure to proffer a limiting instruction on the statem ents used to impeach the State ’ s witnesses at trial. See Cyars , 1997WL 33353409, at *4. 10 Cyars v. Hofbauer No. 02-2341

A.

The Sixth Amendment provides a criminal defenda nt with the right to

effective assis tance of

counsel because of the effect the right has on a defendant’s ability to receive a fai r trial. Mickens v. Tayl

or , 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 ad

versar ial proc ess that

the trial cannot be relied on as having produced a just result.” Strickla nd v. Wash ingto n , 46 6 U .S . 6 68 , 6 86 (1 98 4) . C on se qu en tl y, “defec ts in assistance that have no p r obable 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 famil iar tw o- pronged Strickland test: “First, the defendant must show that counsel’s performance was deficie nt. . . . Se cond, the defendant must show that the deficient p erfo rmance prejudiced the defense.” Strickland
, 466 U.S. at 687. We assume without deciding Petitio ner satisfied the first prong. See id. at 69 7 (exp laini ng “ [i ] f it is easier to dispose of an ineffectiveness claim on the ground of la ckof sufficient prejudice, . . . that course should be followed.”).

The issue, then, is whether the Michigan court’s rejec tion of Petitioner ’s ineff

ective a ssis ta nce claim was an
unreasonableapplication of Strickland ’s prejudice prong. To demonstr ate prejudice, “[t]he defendant must show that there is a reasonable pr

obability th a t, but for counsel’s unprofessional errors, the result of the proceeding would have been differe nt. A rea sonable

pr obability

is a proba

bility sufficient to undermine confidence in the outcome.” Strickland
, 466 U.S. at 694. AEDPA ci r cumscribes our review of the Michigan court’s conclusion that Petiti oner did notsuffer any

prejudice. Cf. Wiggins , 123 S. Ct. 254 2. 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 Mich ig an court reasonably applied Strickland ’s prejudice prong to

the fac ts of Petiti oner’s case. Th e court explained that “[b]ecause the weight and s tre ngth of the untainted evidence present ed in t his case overwhe lmingly supports defen da nt’s convictions , and bec ause the error is relative ly innocuou s (indee d, it was not error f or th e p rior inconsistentstatements to be put before the jury , only that the jury could not consider t

hos e statements as substantive evidence), we conclude that defendant wasnot preju diced in this re gard.” Cyars , 1997 WL 33353409, at *3 (em

phasis added ). We agree. The State had the burden of provi n g Petitioner’s intentional killing of the victi ms was del iberate and premeditated. People v. Coddington , 470 N.W. 2d 478, 487 (Mich. App. 1991). “Premeditation and deliberation may be inferre d from the

facts a nd circu mstance s esta

bl ished on the record. ” I

d. Circumstantial evidence demonstrating premeditation

i n cludes, but is not limited to (1) the prior relation ship of the parties, (2) defendant’s actions bef ore the kill ing, (3) the circum stances, including the wound’s location, of the killing, and (4) defendant’s conduct after the ki llin g. Id. ; see also People v. An ders on , 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

overwhe lmingly

supportsthe jury’s first deg ree murder verdicts, as the Michigan court held, even without consideringthe statemen

ts us ed to im pe ac h M or ri so n, Ba il ey, and Todd C yars. A re asonable jury c ould infer Petitioner k new, from past experience, nefarious activities would b e afoot during his visit to the crack house on August 29, 1993. The jury could als o infer Pe

titioner f ormulate d a plan to

kill Lewis as he distributed drugs from the house’s backroom window. Indeed, Petitioner’s claim that he wa s scared of Rob and Lucky ’s arrival at the Asbury House was undermined

by the fact he c ould have

left the h ouse while

Lewis was with Christon, butinstead o

pted to stay and sell drug s. Petitioner 12 Cyars v. Hofbauer No. 02-2341

sat patiently until L ewis fell asleep and then got up, s tole his gun, and shot him in the b ack of the head . A jury could
reasona bly infer Petitioner had the opportunity to take a “second look” before he executed Lewis in his sleep.

A reas o nable jury, more over, could have easily rejected Petition er’s t heory that he was unable to leave the Asbury Houseafter killingLewis becau se a refrigerator, which he had t wice moved himself that evening, was blocking the fron t door. In fact, the evidenc e demonstrated the refrigerator was noteven blocking the front door after Petitioner shot

Lewis. A reasona

ble jury thus could

in fer that inste ad of simp ly leavingthe Asbury House a fter killing Lewis, Petitioner took
a “se cond lo ok” and elected to enter Tay lor’s room. Upon enteringTaylor’s room, Petitioner shot her in the back of the hea d as she ple aded with him not to kil l her. A r

easonab le jury could thusinfer Petitioner had the opportunity to take a “third look” before shooting Tay lor. Petitioner then turned on Lumpk inwho likely would have also been killed but for the fact Petitioner ran out of ammunition. Petitioner then left the house throu gh its front door; the very door Petitioner

claimed prevented him from exiting the house in the first instance.

After the murde

rs, Petitioner did no t call the po lice to info rm th em he h ad esca ped fro m a near -death host age situation. Ins tead, he told various friends about the killing and showed off

the murder weapon and drugs he looted f rom the house. Petitioner

thereafter discarded the murder weapon and d rugs in a manner sufficient to prevent author ities from
recove ring the evidenc e. A rea sonable j ury could inf er guil t from such evidence.

Insum, circumstantial ev idence before, during, and a fter the murd e r supported the jury’ s verdict that Petitioner intentiona

lly kil led Lewis and Tay

lor with deliberation and premedi tatio n. In deed, the Michigan court of appea ls, a United States magistrate judge, and the district court have so found. Furthermore, we denied Petitioner a certificate of appeala bility onthe claim

he was denied due process of lawNo. 02-2341 Cyars v. Hofbauer 13

because insuffic ient evid

ence of premedi tation exist

ed to support his first degree murder convictions. That cer tificate of appealability denia

l means reasonable jurists could not find the district court’s assessment of the cl aim debatable or wrong. See 28 U.S.C. § 2 253(c); Miller-El , 537 U.S. at 338.

Petitioner nevertheless argues the Michig an court
unre asonably

applied Strickland ’s prejudice prong for fou r rea sons. First, Pe

titioner a rgues t he Michig an court o f appeal s inco rrectly a

pplied Strickland . This arg ument is irrelevant under AEDPA. See Wiggins , 123 S. Ct. a t 2535

. Second, Petition er argues the Michigan c ourt misapprehended the scope of the evidence a limiting instruction would hav e affected an d actu ally

relied o n the “ta inted evi dence”

to affirm his conviction. The overwhe lm ing circumstantial evidence of Petitioner’s guilt and the jury ’s rejection of his claim of self-defense, however, is the de ath-kne ll of this argument. See also Cyars , 1997 WL 33353409, at *3. Third, Petitioner

argue s the Mich

ig an c ourt err

oneously held he did not suffer a

ny p rejudice because the jury was in struc ted only to consider the “swor n testimony of witnesses,” which necessarily excludes statements the S ta te used to impeach witnesses. This argument runs afoul of

the well-established

presumption jurors follow their inst ructions

. See Penry v. Johnson , 532 U .S. 782, 799 (2001). Fourth, Petitioner complains no evidence existed showinghe planned to commit any crime against the victims, or tha t he had a “motive” for the k

illings, a nd some ev

idence c orrobor

ated his trial testimony. Petitioner’s final arg ument is flawe d becau se evidence of “planning” and “motive” are not necessa

ry to sustain a first-degree

murder conviction under Michigan law. See Coddington , 470 N.W. 2d a t 487 (finding a “brief” passa ge of time sufficient for the defendant to take a “second look”); People v. Herndon , 633 N.W. 2d 3 76, 40 4 (Mich. 14 Cyars v. Hofbauer No. 02-2341

5 W e agree with

Petit ioner t

hat some ev idence corr oborated his t rial testimo ny. W e also a gree w ith cou nsel’s content ion at oral ar gument t

hat the impe achm e n t s tat ement s wer e th e onl y “direct evi dence” of p remeditation. These argumen ts are also irrelevant, howev er, because premedi tat ion may be inf erred f rom fact s and cir cumstanc es est ablis hed in the rec ord

. Coddingt on , 470 N.W.2d at 487. App. 2001) (explaining evidence of motive is not ne cessa ry to sustain a first-degree murder convic tion). 5

Inshort, Petitioner failed to carr y hi s height

ened AED PA bur den. See Mitchell

v. Esparz

a , – U.S. –, 1 24 S. Ct. 7, 1 2 (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 prej udic e is reasonable in light of the overwhelming
c ircums tantial evidenc e of his g uilt. No re asonable probabil ity

exists that but for counsel’s failure to proffer a limiting instruction on the proper use of impeac hment stateme nts the resu

lt of the tr

ial would have bee

n differ ent. See Strickland , 466 U.S. a t 696, 700 ( expla i ning trial errors are les s likely

to affect a verdict with “overwhelming recor d support”). As the Courtrecently e xplained, state courts have
more l eeway

in reaching a particular outcome w hen they apply general rules of

law. Alvarado , 124 S. Ct. at 2149. The Strickland

test, by its nature , is gene

ral and n ot subjec t t o me c hanical application. Strickland , 466 U.S. at 696; Kimmelman v. Morrison , 477 U.S. 36 5, 395 (19 86) (Powe ll, J., concurring). We therefore must defer to the Michigan court’s reasonable conclusion that P etitioner did not suffer any prejudice as a result of his couns el’s fa ilure to proffer a limiting instruction on the pr oper u se of impeachment statemen ts. The adversari al process clearly provided Petitioner with a fair trial. That is all the Sixth Amendment demands.No. 02-2341 Cyars v. Hofbauer 15

The Michiga

n court “ consider

ed the pr oper fa ctors a n d reached a reasonable conclusion.” Alvarad o , 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 NE LS ON MOO RE, C ircui t Ju dge, di ssent ing. Becau se I believe Aaron Cy ars’s counsel’s failureto se cure a limiting instruction on the appropriat e use of prior inconsistentstate ment s constitutes ineffective assistance of counsel under Strickland v

. W ashington , 466 U.S. 668 (1984), and that a contrary

view is unreasonabl e, I r espectf ully dissent. At trial, the prosecution

called three key

witnesses, James Morrison(“ Mo rr is on ”) , D on Ba il ey (“Bai ley”), a nd Todd Cyars(“Todd”), to demonstrate that Cy ars acte d with premeditation

and deliberation when he com mitted the murders

. When eac

h witness d

id not prod

uce any valuable evidence on direct examination, the prosecution procee ded to
use unsworn statements allegedly made to p olice after the murders

. These sta

tementsc ontained highly da maging
co mmen ts that Cyars purportedly made to the witnesses regarding his plan to steal dr

ugs from Tay

lor’s hou se and his admission after

the fact that he had completed his plan. When confronted

with the police statements, eac h of th e three witnesses denied hav i ng made the statements or denied the truth of the sta tements. B ecause

the polic e stateme

nts were introduced

solely to impeach the witnesses, the y could not be considered as substantive evidence. Cyars’strial counsel sought a limiting instructionfrom the trial judge permitting the us e of t he police statements of Morrisononly for impeac hment purposes. Because the judge had never given that

kind of instruction before, he asked Cyars’s counse l to draft

a propose d instruc tion that he could consider before issuing such an instruc tion. However, Cyars’strial counsel failed to present any

limiting instruction and never a gain re newed hi s reques t. As a result, the jury was
never instructed on the proper use of the prior incons isten tNo. 02-2341 Cyars v. Hofbauer 17

statemen ts, and was therefore permitted to gi ve whatever weight it wished t

o the prior inconsi ste nt police statemen ts. Thesestatements were the most damaging ev id ence of premeditation.

The Michigan Court of Appeals relied on the contents of thesepolice 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, d ef endant told two of the prosecution’s witnesses that he intended to take drugs from one of the decedents’ home s in order to repay a debt owed to drug dealers for whomdefendant

w orked. There was also evidence that sometime af te r the shoot ing, defendant told those same witnesses that he had completed what he earlier planned to do.

Joint Appendix (“J.A.”) at 13. The Magistrat e Judg e found that the only source f

or these concl usi ons of the Michigan Courtof Appeals was the unsworn police statements of Morris on and Todd. Thus, the Michiga n Court of A

ppeals made substantive use of the very evidence that

the jury should have been instructed to use on ly f or impea chment pu

rposes. This demonstrates both that there was little evidence of premeditation, and that e

ven judg es, let a

lone jurie s, are lik

ely to be conf used witho

ut proper instructi ons.
The Michigan Court of Appeal s, despite its mistake of using the prior inconsistent statements for substantive purposes when

evaluating the sufficiency of the evide nce, did nonethel ess recognize as black-letter law the p rinciple that “Prior inconsiste

nt stateme

nts not ‘given under oath subject to the penalty of pe

rjury’ a re hearsay

and would only be admissible

for impea

chment pu

rposes, n ot as s ubstantive evidence.” J.A. at 14-15. Nonetheless, the Mich igan C ourt of Appeals dete rmined 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 statemen ts of the witnesses, properly limited with an instruction, could hav e proved his theor y of self-de fense
or disprove d th e elemen ts of the offenses. Because the weight and strength of

the untainted evidence presented inthis case

overwhe lmin g ly supports defenda nt’s convicti ons, and bec ause the err or is relatively innocuous (indeed, i t was not error for the prior inconsistent statemen ts to be put before the jury , o nl y that the jury could not consider those statements as substantive evidence), we conclude that defendant w as not prejudiced in this regard.

J.A. at 15-16.

In thi s appeal, the question for this court is whether Cyars has shown ineffective as sistance of counsel warranting the g rant of habeas relief. We apply the analysis of Strickland
, 4 66 U.S. at 694, with its two prongs, deficient performance
a nd prejudic e. First , Cy ars must de monstrate that his tria l counsel’s failur e to request the l imiting instruction constituted “deficient performance.” Then, he must prove that he suffered prejudic e as a re sult

of the deficient performance of counsel. Under this latter

prong, Cya

rs must show that“there is a reasonable probability that, b u t for counsel’s unprofessional errors, the result of the procee ding wou ld have been different.” Caver v. Straub , 349 F.3d 340, 347-48 (6 th Cir. 2003) (quot ing Strickland , 466 U.S. at 694).

The majority of this court assumes that Cy ars has shown deficient per for man ce o f co uns el. It is without doubt that that prong h as been satisfied. Turning to the second prong , the majority concludes that the Michigan Court of App eals ’ opinion is a reasonable application of the prejudice prong of Strickland

. This conclusion is unr eas onable where the Michigan Court of

Appeal s itself has misused the very evidence that can

only be used f

or impea chment pu

rposes, and where there is slim other

evidence to support a finding of premeditation. Mo r eover, t he Michig an Court o f Appea lsNo. 02-2341 Cyars v. Hofbauer 19

complete ly

misstated and misapplied the law when it required Cya rs, in order

to demonstrate prejudice under Strickland , to show that “the prior

inconsiste

nt stateme

nts of the wit

nesses, properl y limited with an instruction, could h ave proved h is theory of self-defense or d isproved the elements of the offenses.” J.A. at 15.

For these re asons, an

d as thoro ughly and ably ar

ticulated by Magistr ate Judge St even Pepe in his exhaustive Report and Recommendation, a

conditional writ of habeas corpus should issue.

I re spectfu

lly d issent.