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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHERMAN WAGNER,

Petitioner,

v.

PAUL KLEE,

CASE NO. 2:06-CV-10514
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

Respondent.

_________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,

AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Sherman Wagner (“Petitioner”), confined at the Kinross Correctional Facility in

Kincheloe, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his

application, filed both pro se and through attorney Andrew N. Wise of the Federal

Defender Office, Petitioner challenges his conviction for first-degree felony murder,

M.C.L.A. 750.316; first-degree premeditated murder, M.C.L.A. 750.316; armed robbery,

M.C.L.A. 750.529; assault with intent to commit murder, M.C.L.A. 750.83; and felony-

firearm, M.C.L.A. 750.227b.

The application for writ of habeas corpus is DENIED.

I. Background

A jury convicted Petitioner of the above charges following trial in Wayne County

Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan

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Court of Appeals; they are presumed correct on habeas review pursuant to 28 U.S.C. §

2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

According to the testimony at trial, Kiley Moss and Thelyus Johnson arranged
to purchase drugs from Antonio Edwards in Detroit. The two men took a bus
from Lansing to Detroit, where Edwards met them. Edwards did not
immediately have the drugs available. Eventually, Edwards and Sol Bryant
took the men to a house where they met Deshawn Lucci. The men began to
set up a scale to weigh the drugs, but moved to a back room because that was
the only room with a light. While the men were in the back room, another
man, whom Johnson identified as defendant, came into the room, pointing a
gun. Johnson claimed that defendant shot and robbed him, and also shot Moss.
Johnson pretended to be dead and was able to leave the house after the others
left. Moss, however, died from his gunshot wounds. His body was later
burned when the house was set on fire.

People v. Wagner, No. 245091, * 1-2 (Mich.Ct. App. October 28, 2004).

In addition to Thelyus Johnson’s testimony, Antonio Edwards testified against

Petitioner as part of a plea bargain with the Wayne County Prosecutor.

Petitioner’s conviction was affirmed on appeal. People v. Wagner, No. 245091

(Mich.Ct. App. October 28, 2004); lv. den. 474 Mich. 912; 705 N.W. 2d 352

(2005)(Cavanagh and Kelly, JJ, would grant leave to appeal).

Petitioner originally filed a pro se petition for writ of habeas corpus in 2006. On

August 15, 2007, this Court denied Petitioner’s application for habeas relief. The Court

also denied Petitioner a certificate of appealability but granted him leave to appeal in

forma pauperis. Wagner v. Smith, No. 2007 WL 2413088 (E.D.Mich. August 15, 2007);

reconsideration den. No. 2007 WL 3124659 (E.D.Mich. October 25, 2007).

The United States Court of Appeals for the Sixth Circuit vacated and remanded the

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matter, finding that Petitioner had failed to properly exhaust two of his prosecutorial

misconduct claims and one ineffective assistance of counsel claim with the state courts

prior to seeking habeas relief. Wagner v. Smith, 581 F. 3d 410 (6th Cir. 2009). Although

the Sixth Circuit discussed the four available options for addressing a habeas petition

which contained unexhausted claims, Id. at 419 (discussing the four options), the Sixth

Circuit strongly suggested that this Court should consider staying the petition and holding

it in abeyance to permit Petitioner to return to the state courts to properly exhaust these

claims. Id. at 419-20.

On November 13, 2009, this Court vacated its opinion and order from August 15,

2007 denying Petitioner habeas relief. This Court further held the petition for writ of

habeas corpus in abeyance to permit Petitioner to return to the state courts to exhaust his

claims. This Court administratively closed the case.

Petitioner filed a post-conviction motion for relief from judgment pursuant to

M.C.R. 6.500, et. Seq. The trial court denied Petitioner’s motion for relief from

judgment. People v. Wagner, No. 02-002648-01 (Third Circuit Court of Michigan for the

County of Wayne, Criminal Division, June 24, 2010). The Michigan appellate courts

denied Petitioner leave to appeal. People v. Wagner, No. 299095 (Mich.Ct.App. May 12,

2011); lv. den. 490 Mich. 968, 806 N.W.2d 521 (2011).

On March 30, 2012, this Court reopened the case to the Court’s active docket and

granted Petitioner’s motion to amend his habeas petition. Petitioner also seeks to

incorporate the claims that he raised in his original habeas petition.

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In his original habeas petition, Petitioner seeks the issuance of a writ of habeas

corpus on the following grounds:

I. The trial court’s failure to grant a mistrial after allowing the prosecutor to
introduce prejudicial and irrelevant evidence of mugshots, aliases and hearsay
police reports that only showed Petitioner as a bad man deprived Petitioner a
fair trial and the Court of Appeals’ decision involved an unreasonable
application of clearly established federal law.

II. Petitioner Sherman Wagner was denied his right to a fair trial in violation
of due process where the court erroneously allowed hearsay and the prosecutor
to use rebuttal testimony to interject an impermissible and suggestive voice
identification.

III. Petitioner Sherman Wagner was denied a fair trial by prosecutor’s
misconduct throughout the trial and violated his right to due process of law
clause of the United States Constitution.

IV. Petitioner Sherman Wagner was denied the effective assistance of counsel
at trial.

V. The cumulative effect of the foregoing errors at trial denied Petitioner
Sherman Wagner a fair trial in violation of due process of law and in violation
of the United States Constitution.

In his amended habeas petition, Petitioner seeks habeas relief on the following

grounds, which the Court renumbers in order to be chronological with the five claims raised

in Petitioner’s original habeas petition:

VI. The Prosecutor’s Flagrant Misconduct Deprived Mr. Wagner of His Right
to Due Process of Law.

VII. Mr. Wagner’s Sixth Amendment Right to Confront the Witnesses Against
Him Was Violated When the Prosecutor Introduced an Out of Court Statement
that Mr. Wagner was Involved in Another Homicide.

VIII. Mr. Wagner Was Denied His Sixth Amendment Right to the Effective
Assistance of Trial and Appellate Counsel.

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II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas

cases:

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–

resulted in a decision that was contrary to, or

(1)
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or
(2)
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

resulted in a decision that was based on an

A decision of a state court is “contrary to” clearly established federal law if the

state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the Supreme Court has

on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06

(2000). An “unreasonable application” occurs when “a state court decision unreasonably

applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A

federal habeas court may not “issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly.” Id. at 410-11.

The Supreme Court has explained that “[A] federal court’s collateral review of a

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state-court decision must be consistent with the respect due state courts in our federal

system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a

‘highly deferential standard for evaluating state-court rulings,’and ‘demands that

state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855,

1862 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state court’s determination that a

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 131 S.

Ct. 770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court has emphasized “that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine

what arguments or theories supported or...could have supported, the state court’s

decision; and then it must ask whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in a prior decision” of the

Supreme Court. Id.

“[I]f this standard is difficult to meet, that is because it was meant to be.”

Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d) as amended by the

AEDPA does not completely bar federal courts from relitigating claims that have

previously been rejected in the state courts, it preserves the authority for a federal court

to grant habeas relief only “in cases where there is no possibility fairminded jurists could

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disagree that the state court’s decision conflicts with” the Supreme Court’s precedents.

Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary

error correction through appeal.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5

(1979))(Stevens, J., concurring in judgment)). Thus, a “readiness to attribute error [to a

state court] is inconsistent with the presumption that state courts know and follow the

law.” Woodford, 537 U.S. at 24. Therefore, in order to obtain habeas relief in federal

court, a state prisoner is required to show that the state court’s rejection of his claim

“was so lacking in justification that there was an error well understood and

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

Harrington, 131 S. Ct. at 786-87.

III. Discussion

A. Claim # 1. The mistrial claim.

Petitioner first claims that the trial court erred in denying his motion for a mistrial

after the prosecutor introduced evidence of Petitioner’s prior use of aliases, prior arrests,

past mug shots, and other police records. Petitioner claims that the prosecution used this

evidence for the sole purpose of showing that Petitioner was a “bad man,” in violation of

M.R.E. 404(b). 1

1 Respondent’s attorney in her supplemental answer suggests that the majority of Petitioner’s claims from

his first habeas petition should not be reviewed by this Court because Petitioner abandoned these claims by not
seeking review of these claims before the Sixth Circuit when he appealed the denial of his original habeas petition by
this Court. Respondent ignores the fact that the Sixth Circuit, in remanding the case back to this Court, suggested
that this Court should hold the original petition in abeyance to permit Petitioner to return to the state courts to

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It is “not the province of a federal habeas court to reexamine state-court

determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

A federal court is limited in federal habeas review to deciding whether a state court

conviction violates the Constitution, laws, or treaties of the United States. Id. Thus,

errors in the application of state law, especially rulings regarding the admissibility of

evidence, are usually not questioned by a federal habeas court. Seymour v. Walker, 224

F. 3d 542, 552 (6th Cir. 2000); See also Foster v. Withrow, 159 F. Supp. 2d 629, 642-43

(E.D. Mich. 2001).

Petitioner’s claim that the state court violated M.R.E. 404(b) by admitting this

evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F 3d 514, 519 (6th Cir.

2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas powers did not permit Court to

reverse state court conviction based on their belief that the state trial judge erred in ruling

that prior injury evidence was admissible as bad acts evidence under California law);

Dowling v. U.S., 493 U.S. 342, 352-53 (1990)(admission at defendant’s bank robbery

trial of “similar acts” evidence that he had subsequently been involved in a house

burglary for which he had been acquitted did not violate due process). The admission of

this “prior bad acts” or “other acts” evidence against Petitioner at his state trial does not

exhaust his additional claims. This Court, in fact, held the petition in abeyance on remand to permit Petitioner to
return to the state court to exhaust his additional claims. Because the whole purpose of the stay and abeyance
procedure is to preserve a habeas petitioner’s ability to return to the state courts to exhaust additional claims without
jeopardizing the timeliness of the initial habeas petition, the Sixth Circuit’s suggestion that the petition be held in
abeyance strongly implied that Petitioner would be able to again raise the issues that he had raised in his first petition
after returning to the state courts. Petitioner’s claims from his habeas petition are therefore properly before this
Court for review.

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entitle him to habeas relief, because there is no clearly established Supreme Court law

which holds that a state violates a habeas petitioner’s due process rights by admitting

propensity evidence in the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329

F. 3d 496, 512 (6th Cir. 2003).

The admission of a habeas petitioner’s prior mug shots into evidence is also non-

cognizable on federal habeas review. See Gant v. Kropp, 407 F. 2d 776, 777-78 (6th Cir.

1969). Petitioner would thus not be entitled to relief on this portion of his claim.

Finally, Petitioner would not be entitled to habeas relief on the ground that the

prosecution presented evidence of Petitioner’s prior use of aliases. See Martin v. Jabe,

747 F. Supp. 1227, 1230 (E.D. Mich. 1989). Petitioner is not entitled to habeas relief on

his first claim.

B. Claims ## 2 and # 7. The Confrontation Clause/hearsay claims.

The Court discusses portions of Petitioner’s second and seventh claims together;

they both allege that the trial court improperly admitted hearsay evidence against

Petitioner, in violation of his Sixth Amendment right to confrontation.

The first task in analyzing Petitioner’s Confrontation Clause claims is to

determine what constitutes “clearly established federal law” with respect to the claims.

The phrase “clearly established federal law,” for purposes of § 2254(d)(1), is the

governing legal principle or principles set forth by the United States Supreme Court at

the time that the state court renders its decision. Lockyer v. Andrade, 538 U.S. at 71-72.

At the time of Petitioner’s trial, the United States Supreme Court held that the

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veracity of hearsay statements was sufficiently dependable to allow the untested

admission of such statements against an accused when:

1. the evidence falls within a firmly rooted exception to the hearsay rule;
or
2. it contains particularized guarantees of trustworthiness such that
adversarial testing would be expected to add little, if anything, to the
statement’s reliability.

Ohio v. Roberts, 448 U.S. 56, 66 (1980).

On March 8, 2004, the United States Supreme Court overruled its holding in Ohio

v. Roberts, supra, and held that out of court statements that are testimonial in nature are

barred by the Sixth Amendment Confrontation Clause unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the witness. See Crawford v.

Washington, 541 U.S. 36, 59 (2004).

Petitioner’s direct appeal of right was decided by the Michigan Court of Appeals

on October 28, 2004, after the issuance of the Crawford decision. The Sixth Circuit

instructs that “[u]nder [the] AEDPA ... [a court’s] inquiry is limited to an examination of

the legal landscape as it would have appeared to the Michigan state courts in light of

Supreme Court precedent at the time [petitioner’s] conviction became final.” Onifer v.

Tyskiewicz, 255 F. 3d 313, 317-18 (6th Cir. 2001). Because Crawford was decided by

the U.S. Supreme Court while Petitioner’s case was pending on direct appeal in the

Michigan appellate courts, this Court believes that Crawford constitutes clearly

established federal law as determined by the Supreme Court for purposes of analyzing

Petitioner’s confrontation claims. See Garcia-Dorantes v. Warren, 769 F. Supp. 2d 1092,

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1110 (E.D. Mich. 2011).

In his second claim, Petitioner first argues that the prosecutor elicited

impermissible hearsay evidence from the officer in charge of the case that Thelyus

Johnson never identified anyone other than Petitioner as the shooter.

Thelyus Johnson testified at Petitioner’s trial and was subject to cross-

examination from defense counsel. Because Johnson testified at trial and was subject to

cross-examination on his identification of Petitioner, the officer-in-charge’s statements

were not hearsay under state evidence law, See M R.E 801(d)(1)(C), nor does this

evidence violate the Confrontation Clause of the Sixth Amendment. See United States v.

Owens, 484 U.S. 554, 560 (1988). The officer’s testimony that Johnson never identified

anyone other than Petitioner as being the perpetrator in this case does not entitle

Petitioner to habeas relief.

In his seventh claim, Petitioner contends that his right to confrontation was

violated when the prosecutor, while cross-examining Petitioner, introduced an

out-of-court statement made by Arthur Gamich that Petitioner was involved in another

homicide. The following exchange occurred between the prosecutor and Petitioner:

Q [by the prosecutor]: And you remember that Gamich said that you and
Duke are the ones who shot Kamal Logan?

A [Petitioner]: Yeah, I remember that.

Q. Okay. He said that in his statement, right?

A. He said that that (sic) you—he said that homicide said that, and he
never said it, but he signed it. That’s why the case got threw out. He said

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he never said that.

(Tr. 7/11/02, p. 111).

The trial court rejected this claim on post-conviction review, ruling that

Petitioner’s confrontation rights had not been violated because Gamich’s statement had

not itself been introduced into evidence. People v. Wagner, No. 02-002648-01, Slip. Op.

at 6-7.

Petitioner is not entitled to habeas relief on his claim for two reasons. First, the

Confrontation Clause does not appear to be implicated; Mr. Gamich’s actual statement

was never admitted into evidence. Secondly, the prosecutor appears to have questioned

Petitioner about this unrelated murder case to impeach his testimony on direct

examination that he had never been involved in any homicides or assaultive crimes.

The Confrontation Clause “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at

59, n. 9; See also Tennessee v. Street, 471 U.S. 409, 414 (1985)(defendant’s rights under

the Confrontation Clause were not violated by introduction of an accomplice’s

confession for the nonhearsay purpose of rebutting defendant’s testimony that his own

confession was coercively derived from the accomplice’s statement). The prosecutor’s

introduction of Mr. Gamich’s statement implicating Petitioner in an unrelated murder did

not violate Petitioner’s Confrontation Clause rights, where the prosecutor did not

introduce the statement itself, but only used the statement for the nonhearsay purpose of

impeaching Petitioner’s testimony that he had never been involved in other homicides or

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assaultive crimes. See McPherson v. Woods, 506 Fed. Appx. 379, 389 (6th Cir. 2012).

Petitioner is not entitled to habeas relief on his confrontation claims.

C. Claim # 2. The voice identification claim.

As part of his second claim, Petitioner argues that the trial court erred in allowing

Thelyus Johnson, after he had heard Petitioner testify in court, testify in rebuttal that

Petitioner’s voice was the same voice as the shooter’s.

To the extent that Petitioner claims the admission of Johnson’s testimony was

inappropriate rebuttal testimony, this claim is not cognizable on federal habeas review,

because it involves a violation of state evidentiary rules. Slack v. Cason, 258 F. Supp. 2d

727, 733 (E.D. Mich. 2003).

To the extent that Petitioner claims that Johnson was permitted to engage in a

suggestive voice identification procedure, he would not be entitled to relief on his claim

either.

A criminal defendant has the initial burden to prove that the identification

procedure was impermissibly suggestive. It is only after a defendant meets this burden

of proof that the burden then shifts to the prosecutor to prove that the identification was

reliable independent of the suggestive identification procedure. See Johnson v. Warren,

344 F. Supp. 2d 1081, 1090 (E.D. Mich. 2004)(citing English v. Cody, 241 F. 3d 1279,

1282-83 (10th Cir. 2001)(citing United States v. Wade, 388 U.S. 218, 240, n. 31 (1967)).

If a defendant fails to show that the identification procedures were impermissibly

suggestive, or if the totality of the circumstances indicate that the identification is

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otherwise reliable, no due process violation has occurred; so long as there is not a

substantial misidentification, it is for the jury or factfinder to determine the ultimate

weight to be given to the identification. See United States v. Hill, 967 F. 2d 226, 230 (6th

Cir. 1992); Johnson, 344 F. Supp. 2d at 1090.

Petitioner failed to show that the in-court voice identification procedure was

unduly or impermissibly suggestive here. As one court noted, “[a]n in-court voice

identification in and of itself is no more or less suggestive than the common visual

identification of a criminal defendant by a victim as the defendant sits at the defense

table.” Stith v. State, 201 Ga. App. 621, 622; 411 S.E. 2d 532, 533 (Ga. App. 1991).

Moreover, there is no entitlement to an in-court line-up or other method of lessening the

suggestiveness of an in-court identification. United States v. Domina, 784 F. 2d 1361,

1369 (9th Cir. 1984); Faulkner v. Makel, 839 F. Supp. 1242, 1251 (E.D. Mich. 1993).

Because Johnson’s voice identification of Petitioner took place in open court in the

presence of a jury, with the availability of cross-examination to reveal any weaknesses of

such a procedure, the in-court voice identification was not unduly suggestive. Domina,

784 F. 2d at 1372. Accordingly, Petitioner is not entitled to habeas relief on this portion

of his second claim.

D. Claims # 3 and # 6. The prosecutorial misconduct claims.

In his third and sixth claims, Petitioner alleges he was deprived of a fair trial

because of prosecutorial misconduct. The Court consolidates the two claims; many of

the allegations contained within the two claims are interrelated or overlap each other.

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“Claims of prosecutorial misconduct are reviewed deferentially on habeas

review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker,

344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will be held to

violate a criminal defendant’s constitutional rights only if they “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’” Darden v.

Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S.

637, 643 (1974)). Prosecutorial misconduct will thus form the basis for habeas relief

only if the conduct was so egregious as to render the entire trial fundamentally unfair

based on the totality of the circumstances. Donnelly, 416 U.S. at 643-45. The Court

must focus on “‘the fairness of the trial, not the culpability of the prosecutor.’” Pritchett

v. Pitcher, 117 F. 3d 959, 964 (6th Cir.1997) (quoting Serra v. Michigan Dep't of Corr., 4

F.3d 1348, 1355 (6th Cir. 1993)). Finally, “[t]he Supreme Court has clearly indicated that

the state courts have substantial breathing room when considering prosecutorial

misconduct claims because ‘constitutional line drawing [in prosecutorial misconduct

cases] is necessarily imprecise.’” Slagle v. Bagley, 457 F. 3d 501, 516 (6th Cir.

2006)(quoting Donnelly, 416 U.S. at 645). Thus, in order to obtain habeas relief on a

prosecutorial misconduct claim, a habeas petitioner must show that the state court’s

rejection of his prosecutorial misconduct claim “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012)(quoting

Harrington, 131 S. Ct., at 786–87). This is particularly so, “because the Darden

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standard is a very general one, leaving courts ‘more leeway ... in reaching outcomes in

case-by-case determinations[,].’” Id. (quoting Yarborough v. Alvarado, 541 U.S. at 664).

Petitioner first argues that the prosecutor interjected irrelevant and impermissible

evidence throughout the trial, in an attempt to link Petitioner to the murder. The Sixth

Circuit noted that there are no Supreme Court cases which support the proposition that a

prosecutor’s questions that simply call for answers that are inadmissible due to relevancy

constitute prosecutorial misconduct that rises to the level of a federal due process

violation. See Wade v. White, 120 Fed. Appx. 591, 594 (6th Cir. 2005). Therefore, the

fact that the prosecutor attempted to elicit irrelevant evidence throughout Petitioner’s

trial in an attempt to link him with the murder would not entitle Petitioner to habeas

relief. Id.

Petitioner also contends that the prosecutor committed misconduct by questioning

Petitioner about his involvement in two uncharged murders. The trial court rejected this

claim on post-conviction review, holding that the prosecutor did not err in this line of

questioning because Petitioner opened the door when he testified on direct examination

that he had never been arrested or convicted for a crime involving violence, and later

volunteered that he had been investigated for an unrelated homicide. People v. Wagner,

No. 02-002648-01, Slip. Op. at 5.

“[T]he price a defendant must pay for attempting to prove his good name is to

throw open the entire subject which the law has kept closed for his benefit and to make

himself vulnerable where the law otherwise shields him.” Michelson v. United States,

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335 U.S. 469, 479 (1948). Because Petitioner placed his character at issue by his direct

testimony, Petitioner “opened the door” for the prosecution to discredit his character

during its cross-examination by questioning him about his involvement in uncharged

murders. Accordingly, Petitioner failed to show that the prosecutor engaged in

misconduct through her cross-examination on this subject. See e.g. U.S. v. Roper, 135 F.

3d 430, 433 (6th Cir. 1998).

Petitioner next argues that the prosecutor committed misconduct by attempting to

introduce an allegedly threatening letter that was sent to Antonio Edwards before he had

testified at Petitioner’s trial. Petitioner claims that this was misconduct, because there

was no evidence linking Petitioner to the letter. However, by Petitioner’s own

admission, Edwards testified that he did not know who had sent this letter and in any

event, did not feel threatened by the letter.

Petitioner is not entitled to habeas relief on this portion of his claim; the

prosecutor’s attempts to question Edwards about this allegedly threatening letter

appeared to be in good faith. See King v. Elo, 36 Fed. Appx. 805, 812-13 (6th Cir. 2002).

Moreover, in light of the fact that Edwards did not ascribe any validity to the threats

contained in the letter, Petitioner is unable to establish that the prosecutor’s questions

about this allegedly threatening letter deprived Petitioner of due process. Id.

As a related claim, Petitioner contends that the prosecutor allowed Edwards to

commit perjury by testifying that he had known Petitioner for about one year prior to the

murder and the robbery. Petitioner claims that this testimony is false because Petitioner

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had been incarcerated for another crime up until February 1, 2000, which was about one

and a half months prior to the murder and shooting.

The deliberate deception of a court and jurors by the presentation of known and

false evidence is incompatible with the rudimentary demands of justice. Giglio v. United

States, 405 U.S. 150, 153 (1972). There is also a denial of due process when the

prosecutor allows false evidence or testimony to go uncorrected. Napue v. Illinois, 360

U.S. 264, 269 (1959)(internal citations omitted). But, to prevail on a claim that a

conviction was obtained by evidence that the government knew or should have known to

be false, a defendant must show that the statements were actually false, that the

statements were material, and that the prosecutor knew they were false. Coe v. Bell, 161

F. 3d 320, 343 (6th Cir. 1998). However, a habeas petitioner must show that a witness’

statement was “indisputably false,” rather than misleading, to establish a claim of

prosecutorial misconduct or a denial of due process based on the knowing use of false or

perjured testimony. Byrd v. Collins, 209 F. 3d 486, 517-18 (6th Cir. 2000). A habeas

petitioner has the burden of establishing a Giglio violation. See Malcum v. Burt, 276 F.

Supp. 2d 664, 684 (E.D. Mich. 2003).

Petitioner is not entitled to habeas relief, because he failed to show that the

prosecutor knew or should have known that Edwards was committing perjury when he

testified to knowing Petitioner for a year prior to the shooting. See Foley v. Parker, 488

F. 3d 377, 392 (6th Cir. 2007). Moreover, even if Edwards’ trial testimony about the

length of his acquaintanceship with Petitioner was false, Petitioner has not establish a

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reasonable likelihood that this testimony could have affected the jury’ judgment, in light

of the fact that Thelyus Johnson also identified Petitioner as the shooter. Id.

Petitioner is not entitled to habeas relief on his third and sixth claims.

E. Claims # 4 and # 8. The ineffective assistance of counsel claims.

In his fourth and eighth claims, Petitioner contends that he was deprived of the

effective assistance of trial and appellate counsel.

To show that he was denied the effective assistance of counsel under federal

constitutional standards, a defendant must satisfy a two prong test. First, the defendant

must demonstrate that, considering all of the circumstances, counsel’s performance was

so deficient that the attorney was not functioning as the “counsel” guaranteed by the

Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the

defendant must overcome a strong presumption that counsel’s behavior lies within the

wide range of reasonable professional assistance. Id. In other words, petitioner must

overcome the presumption that, under the circumstances, the challenged action might be

sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that

such performance prejudiced his defense. Id. To demonstrate prejudice, the 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.” Strickland, 466 U.S. at

694. “Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different

result must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379

(6th Cir. 2011)(quoting Harrington, 131 S. Ct. at 792). The Strickland standard applies

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as well to claims of ineffective assistance of appellate counsel. See Whiting v. Burt, 395

F. 3d 602, 617 (6th Cir. 2005). The Supreme Court’s holding in Strickland places the

burden on the defendant who raises a claim of ineffective assistance of counsel, and not

the state, to show a reasonable probability that the result of the proceeding would have

been different, but for counsel’s allegedly deficient performance. See Wong v.

Belmontes, 130 S. Ct. 383, 390-91 (2009).

More importantly, on habeas review, “the question ‘is not whether a federal court

believes the state court’s determination’ under the Strickland standard ‘was incorrect but

whether that determination was unreasonable-a substantially higher threshold.’” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465,

473 (2007)). “The pivotal question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from asking whether defense

counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 131 S.

Ct. at 785. Indeed, “because the Strickland standard is a general standard, a state court

has even more latitude to reasonably determine that a defendant has not satisfied that

standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664).

Pursuant to § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a

Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of

a state court conviction, “[A] state court must be granted a deference and latitude that are

not in operation when the case involves review under the Strickland standard

itself.”Harrington, 131 S. Ct. at 785. “Surmounting Strickland's high bar is never an

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easy task.” Id. at 788 (quoting Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010)).

Because of this doubly deferential standard, the Supreme Court indicated that:

Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether counsel’ s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.

Harrington v. Richter, 131 S. Ct. at 788.

In addition, a reviewing court must not merely give defense counsel the benefit of

the doubt, but must also affirmatively entertain the range of possible reasons that counsel

may have had for proceeding as he or she did. Cullen v. Pinholster, 131 S. Ct. 1388,

1407 (2011).

Finally, this Court is aware that “[R]eliance on ‘the harsh light of hindsight’ to

cast doubt on a trial that took place” eleven years ago and an appeal of right that

occurred almost nine years ago “is precisely what Strickland and AEDPA seek to

prevent.” Harrington v. Richter, 131 S. Ct. at 789.

Petitioner first alleges that trial counsel was ineffective for failing to properly

conduct an pre-trial evidentiary hearing to suppress Thelyus Johnson’s pre-trial

photographic identification of Petitioner as the shooter, on the ground that the pre-trial

identification procedure was unduly suggestive. Although counsel filed a pre-trial

motion for an evidentiary hearing, counsel did not call Johnson or the line-up attorney to

testify at the suppression hearing.

After Petitioner’s trial, an evidentiary hearing was conducted in the trial court on

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Petitioner’s ineffective assistance of counsel claims pursuant to People v. Ginther, 390

Mich. 436, 443; 212 N.W. 2d 922 (1973). Petitioner’s trial counsel was the only witness

at the Ginther hearing. Petitioner’s trial counsel indicated that he did not want to bring a

pre-trial motion to suppress the pre-trial identification and did so only to placate

Petitioner. Counsel testified that he did not believe that the photo array was unduly

suggestive, although he acknowledged that Petitioner was the lightest-skinned person in

the photo showup and that there was a white piece of paper covering the name tag that

prisoners wear in Petitioner’s photograph. Counsel admitted that he did not want the

photographic identification to be suppressed. Instead, counsel wanted to use Johnson’s

photographic identification to impeach Johnson with the fact that Johnson picked out

Petitioner, the lightest skinned person from the photographic lineup, even though

Johnson had described his assailant to the police as being dark-skinned. (Ginther

Hearing, Motion for New Trial, April 5, 2004, pp. 5-12).

The decision to attack the credibility of Johnson’s identification of Petitioner

through cross-examination, rather than to object to the in-court identification, was a

reasonable trial strategy that defeats Petitioner’s ineffective assistance of trial counsel

claim. Scott v. Elo, 100 Fed. Appx. 332, 333-34 (6th Cir. 2004); Monroe v. Stegall, 197 F.

Supp. 2d 753, 761 (E.D. Mich. 2001).

As a related claim, Petitioner contends that counsel should have called an expert

on eyewitness identification to testify at Petitioner’s trial. Counsel testified that he

didn’t consider calling such an expert because he did not know that such experts existed.

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(Id. at pp. 16-17).

As an initial matter, Petitioner presented no evidence either to the state courts or

to this Court that he had an expert witness who would be willing to testify on the issue of

eyewitness identification. A habeas petitioner’s claim that trial counsel was ineffective

for failing to call an expert witness cannot be based on speculation. See Keith v. Mitchell,

455 F. 3d 662, 672 (6th Cir. 2006). Petitioner has never offered any evidence that an

expert witness would testify and what the testimony would have been. In the absence of

proof, Petitioner is unable to establish that he was prejudiced by counsel’s failure to call

an expert witness to testify at trial, so as to support the second prong of an ineffective

assistance of counsel claim. See Clark v. Waller, 490 F. 3d 551, 557 (6th Cir. 2007).

Moreover, with respect to Petitioner’s claim that counsel was ineffective for

failing to call an expert on eyewitness identification, “[N]o precedent establishes that

defense counsel must call an expert witness about the problems with eyewitness

testimony in identification cases or risk falling below the minimum requirements of the

Sixth Amendment.” Perkins v. McKee, 411 Fed. Appx. 822, 833 (6th Cir. 2011); See also

Dorch v. Smith, 105 Fed. Appx. 650, 653 (6th Cir. 2004)(upholding as reasonable the

Michigan Court of Appeals’s conclusion that defense counsel’s failure to call an expert

witness on eyewitness identification counsel did not satisfy Strickland, because counsel

“presented several witnesses who testified as to [the habeas petitioner’s] whereabouts on

the weekend of the incident” and cross-examined the eyewitness regarding

inconsistencies in his identification of the petitioner). Moreover, although counsel did

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not call an expert witness on the problems of eyewitness identification, trial counsel

cross-examined Johnson about the problems with his identification of Petitioner.

Petitioner’s counsel raised a misidentification defense at trial through the cross-

examination of witnesses and in opening and closing argument. Counsel was, therefore,

not deficient in failing to call an expert in eyewitness identification. See Greene v.

Lafler, 447 F. Supp. 2d 780, 794-95 (E.D. Mich. 2006).

Petitioner next contends that counsel failed to properly impeach the testimony of

Thelyus Johnson.

“Courts generally entrust cross-examination techniques, like other matters of trial

strategy, to the professional discretion of counsel.” Dell v. Straub, 194 F. Supp. 2d 629,

651 (E.D. Mich. 2002). “Impeachment strategy is a matter of trial tactics, and tactical

decisions are not ineffective assistance of counsel simply because in retrospect better

tactics may have been available.” Id.

Petitioner first contends that counsel should have impeached Johnson’s testimony

that the gun used was a small caliber gun, by eliciting testimony that the weapons used

were actually larger weapons. Counsel testified at the Ginther hearing that he did bring

up the discrepancies in the descriptions of the bullet sizes in his closing argument. (Id. at

p. 59). Because counsel did highlight the discrepancies between the caliber sizes of the

bullets in his closing argument, this portion of Petitioner’s claim is without merit.

Petitioner next contends that counsel was ineffective for failing to impeach

Johnson’s testimony that he had gone to St. John’s Hospital for treatment of his gunshot

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wounds, by calling an investigator who had gone to the hospital on counsel’s behalf and

had been unable to discover any record of Johnson ever having been treated at St. John’s

Hospital. Counsel testified at the Ginther hearing that he did not call the investigator to

testify on this issue because Johnson was originally from the South, had lived in

Lansing, and had no connection with Detroit and, therefore, could have simply been

wrong about the name of the hospital where he went for treatment. (Id. at pp. 19-21).

Counsel’s decision not to challenge Johnson over this minor inconsistency was not

ineffective assistance of counsel. See Campbell v. United States, 364 F. 3d 727, 735 (6th

Cir. 2004).

As a related claim, Petitioner contends that counsel should have called a Ms.

Ramsey to impeach Johnson’s credibility regarding his version of the events surrounding

the shooting. Petitioner, however, never presented Ms. Ramsey as a witness at the

Ginther hearing. Conclusory allegations of ineffective assistance of counsel, without

any evidentiary support, do not provide a basis for habeas relief. See Workman v. Bell,

178 F.3d 759, 771 (6th Cir. 1998). Petitioner failed to attach any offer of proof or any

affidavits sworn by Ms. Ramsey. In the absence of such proof, Petitioner is unable to

establish that he was prejudiced by counsel’s failure to call Ms. Ramsey to testify at trial,

so as to support the second prong of an ineffective assistance of counsel claim. See Clark

v. Waller, 490 F. 3d at 557.

Petitioner next argues that counsel was ineffective for failing to call the

prosecution witnesses liars. However, counsel testified at the Ginther hearing that he

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thought it was better to argue that some of the witnesses were mistaken, rather than that

they were all lying. (Id. at pp. 14, 55). Counsel testified that it was his belief that “[i]f

you call everybody in the court room a liar but yourself, the chances of a jury believing

that you’re the only one telling the truth is negligible. And I learned trying cases, the

least amount of people you call a liar the better off you’re going to be.” (Id. at p. 55).

Counsel believed that it was a more gentle way to handle Johnson by saying that he was

wrong, rather than that he was a liar. Counsel testified that he did, in fact, call Antonio

Edwards a liar at trial. (Id.).

Defense counsel’s decision to argue that Johnson was mistaken, rather than

arguing that Johnson had perjured himself, was a reasonable trial strategy that defeats

Petitioner’s ineffective assistance of counsel claim. See Matista v. U.S., 885 F. Supp.

634, 638-39 (S.D.N.Y. 1995).

Petitioner next contends that counsel was ineffective for allowing Antonio

Edwards’ allegedly perjured testimony that he had known Petitioner for nine months

prior to the shooting to go uncorrected or to impeach it with prison records which would

have showed that Petitioner was in prison during this time period.

Counsel testified at the Ginther hearing that he did not alert the court about

Edwards’ alleged perjury about knowing Petitioner for nine months prior to the shooting,

because it was possible that Edwards was simply wrong, not lying. Counsel further

testified that he believed that it was better to attack Edwards’ credibility by bringing in

the testimony of a police officer, Ahmed Haidar, to show that it was Petitioner’s brother,

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and not Petitioner, as Edwards had testified, who had been arrested with Edwards in a

drug raid of the house on Eureka Street three days prior to the shooting. Counsel also

brought out testimony that Edwards had been seen by a clinical psychologist and had

basically lied to everyone. (Id. at pp. 35-41). Moreover, a review of counsel’s closing

argument shows that counsel did attack Edwards’ testimony by bringing up the fact that

Petitioner had been in prison up to two months prior to the shooting. (Tr. 7/15/2002, p.

27).

With respect to counsel’s failure to object to the allegedly perjured testimony of

Antonio Edwards, Petitioner’s claim fails because he has failed to show that the

government knowingly used perjured testimony in this case or that this testimony was

material to Petitioner’s conviction. Monroe v. Stegall, 197 F. Supp. 2d at 760.

To the extent that Petitioner claims that counsel failed to adequately impeach

Edwards with his testimony about having been acquainted with Petitioner for nine

months prior to the shooting, the Court notes that Petitioner’s counsel extensively

impeached Edwards on a number of points, including the fact that he had initially named

Sol Bryant as the shooter, that another person named Amir Ross had also named Sol

Bryant as the shooter, that Edwards was testifying against Petitioner in exchange for a

plea bargain and sentence reduction, and that Edwards had been mistaken or lying about

Petitioner being with him at the house on Eureka Street during a drug raid that took place

three days prior to the shooting. Counsel’s failure to impeach Edwards about knowing

Petitioner for nine months prior to the shooting did not undermine confidence in

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outcome of the case, since a variety of other impeachment evidence was admitted in this

case. See Wolfe v. Bock, 412 F. Supp. 2d 657, 676-77 (E.D. Mich. 2006).

Petitioner next contends that counsel was ineffective for failing to move for the

exclusion of Petitioner’s aliases from evidence pursuant to M.R.E. 404(b). The

Michigan Court of Appeals, however, indicated that evidence of Petitioner’s aliases was

admissible pursuant to M.R.E. 404(b) for the purpose of rebutting Petitioner’s

misidentification defense. Wagner, No. 245091, Slip. Op. at 3-4. Because the Michigan

Court of Appeals determined that such “other acts” evidence was admissible, counsel

was not ineffective for failing to object to its admission. See Pearl v. Cason, 219 F.

Supp. 2d 820, 828-29 (E.D. Mich. 2002).

Although unclear, it appears as though Petitioner also claims that counsel was

ineffective for failing to move for the suppression of his four prior felony convictions for

unlawfully driving away an automobile (U.D.A.A.) from June of 1991, Attempted

U.D.A.A. from September of 1991, Conspiracy to Commit U.D.A.A. from August of

1992 and Larceny from a Motor Vehicle from January of 2002. Assuming that counsel

was ineffective for failing to move for the suppression of these convictions pursuant to

M,R.E. 609, Petitioner is unable to show that he was prejudiced, so as to be entitled to

habeas relief, in light of the fact that two witnesses testified that he committed the crimes

charged here. See James v. United States, 217 Fed.Appx. 431, 436-37 (6th Cir. 2007).

Petitioner next contends that counsel was ineffective for failing to object to the

prosecutor’s acts of taunting, insulting, and even touching Petitioner during her cross-

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examination of Petitioner. Counsel testified at the Ginther hearing that he did not object

to the prosecutorial misconduct because he initially thought that it was a mistake when

the prosecutor touched Petitioner. When counsel realized that the prosecutor’s actions

were intentional, counsel believed that he could use the prosecutorial misconduct to

show that Petitioner was not that bad of a person, as the prosecution was suggesting,

because a violent person would have struck back at the prosecutor. (Id. at pp. 44-45).

Counsel, in fact, pointed out in his closing argument that Petitioner had not reacted

violently to the prosecutor’s taunting and insults, as a person accused of a violent act

would be expected to do. (Tr. 7/15/2002, pp. 25-26).

Because counsel had sound tactical reasons for not objecting to the prosecutorial

misconduct, Petitioner is unable to establish that counsel was ineffective for failing to do

so. See Ege v. Yukins, 380 F. Supp. 2d 852, 882 (E.D. Mich. 2005); aff’d in part and

rev’d in part on other grds, 485 F.3d 364 (6th Cir. 2007).

Petitioner also argues that trial counsel was ineffective for failing to object to the

prosecutor’s misconduct in introducing evidence of Petitioner’s involvement in unrelated

murders. To show prejudice under Strickland for failing to object to prosecutorial

misconduct, a habeas petitioner must show that but for the alleged error of trial counsel

in failing to object to the prosecutor’s improper questions and arguments, there is a

reasonable probability that the proceeding would have been different. Hinkle v. Randle,

271 F. 3d 239, 245 (6th Cir. 2001). Because the Court has already determined that the

prosecutor’s questions about Petitioner’s involvement in these unrelated homicides did

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not deprive Petitioner of a fundamentally fair trial, Petitioner is unable to establish that

he was prejudiced by counsel’s failure to object. Slagle, 457 F. 3d at 528.

Petitioner also argues that trial counsel was ineffective for failing to object to the

prosecutor questioning Petitioner about Mr. Gamich’s out-of-court statement. As

mentioned when discussing Petitioner’s Confrontation Clause claim above, Gamich’s

statement was admitted for a nonhearsay purpose and did not violate Petitioner’s right to

confrontation. Because the admission of Gamich’s extrajudicial statement did not

violate the Confrontation Clause, counsel was not ineffective for failing to object to its

admission on this basis. See e.g. U.S. v. Johnson, 581 F. 3d 320, 328 (6th Cir. 2009).

Petitioner next contends that defense counsel’s closing argument was deficient.

While the right to effective assistance of counsel extends to closing arguments,

counsel nonetheless has wide latitude in deciding how best to represent a criminal

defendant, and deference to a defense counsel’s decisions in his or her closing argument

is particularly important because of the broad range of legitimate defense strategies at

that stage. Yarborough v. Gentry, 540 U.S.1, 5-6 (2003). Judicial review of a defense

attorney’s summation must be highly deferential and is “doubly deferential when it is

conducted through the lense of federal habeas.” Id. By candidly acknowledging a

client’s shortcomings, a defense attorney may be able to build credibility with a jury and

persuade it to focus on the relevant issues in the case. Yarborough, 540 U.S. at 9.

Counsel made a lengthy closing argument. (Tr. 7/15/2002, pp. 25-43). In his

closing, defense counsel pointed out that Petitioner had not reacted violently to the

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prosecutor’s taunts and insults, as a murderer would be expected to do. Counsel pointed

out that Antonio Edwards and Amir Ross had initially named Sol Bryant as the shooter,

not Petitioner. Counsel accused Edwards of lying on a number of issues. Counsel

pointed out that none of the police ever showed pictures of Petitioner’s brother to either

Thelyus Johnson or Antonio Edwards to see if either man would identify Petitioner’s

brother as the shooter. Counsel pointed out that Ahmad Haidar testified that it was

Petitioner’s brother, and not Petitioner, who was arrested in the drug raid with Edwards

three days prior t