Mackey v. Russell , 148 F. App'x 355 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0679n.06
Filed: August 9, 2005
No. 02-4237
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MAURICE MACKEY, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
HARRY K. RUSSELL, Warden, ) OPINION
)
Respondent-Appellee. )
BEFORE: MARTIN, COLE, and GIBBONS, Circuit Judges
R. GUY COLE, JR., Circuit Judge. Petitioner-Appellant Maurice Mackey was convicted
of murder and attempted murder. He now appeals the district court’s denial of habeas corpus relief.
Mackey alleges that he was denied his Sixth Amendment right to effective assistance of counsel, and
that he was denied due process by the government’s use, for impeachment purposes, of both
Mackey’s prior misconduct and his invocation of his Miranda right to remain silent following his
arrest. Because we find that the state appeals court failed to consider the cumulative effect of
Mackey’s attorney’s errors, and because Mackey’s attorney’s errors likely prejudiced the jury’s
verdict given the paucity of evidence as to who drew his gun first, we VACATE the judgment of
the district court and REMAND with instructions to issue a conditional writ of habeas corpus,
giving the State of Ohio 180 days within which to retry Mackey or release him from state custody.
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I.
On the night of April 14, 1999, Maurice Mackey and his girlfriend Stephanie Whitmore were
at a bar known as the Office Lounge in Cleveland. Also there were off-duty out-of-uniform
Cleveland Police Officer David Smith and his friend Edward Wright, an off-duty mall security
guard. Officer Smith’s girlfriend, Bridget Jackson, worked as a dancer at the lounge. When
Whitmore walked over to Smith, Wright, and Jackson to ask Jackson if she would perform a “lap
dance” for Mackey, Smith made a remark which Whitmore interpreted as hostile. When Whitmore
returned to the table she and defendant Mackey were sharing, Mackey asked her what Smith had
said, and she said she had not heard. Smith and Mackey then exchanged several hostile stares, but
never spoke to each other. After fifteen to thirty minutes of hostile glances, Mackey and Whitmore
decided to leave to avoid trouble. Smith and Wright decided to leave at the same time.
In the parking lot, Mackey and Whitmore heard the door to the lounge open behind them.
Wright testified that Mackey turned around and asked if Smith and Wright had a problem with him.
Mackey testified that Smith asked if Mackey had something to say to him. Either way, it is
undisputed that both men then drew handguns. It is also undisputed that Mackey shot Smith, killing
him instantly, and then shot Wright, injuring him, as he turned to flee. Mackey testified at trial that
he had seen Smith begin to draw his gun, and that in response, Mackey drew his weapon in self-
defense. Neither Whitmore nor Wright were in a position to see which man drew first, and there
were no other witnesses to the shooting.
Neither man had any reason to know the other was carrying a firearm; Mackey was carrying
his gun illegally, Smith was not in uniform, and the men had never met each other before. The
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coroner testified that forensic evidence showed Smith had indeed drawn his gun at the time he was
shot; the gun was found gripped in his hand away from the holster, with a bullet in the chamber. In
addition, there was laboratory evidence that Smith was legally intoxicated at the time of the
shooting. No other direct physical or testimonial evidence was introduced that would tend to show
who drew first.
Immediately after the shooting, Mackey fled with Whitmore to their house in Solon, Ohio.
From there, Whitmore called a friend who worked at the lounge. When she found out that one of
the victims was not expected to live, she told the friend not to mention the call. The friend informed
the police, who came to the Solon house and knocked on the door. Mackey and Whitmore did not
answer, but later that morning, on the advice of their attorney, they surrendered to the police.
Mackey was convicted of murder in the Cuyahoga County Court of Common Pleas, and
properly exhausted all required state court review of the claims now before us. The parties agree
that the only disputed issue at trial was who drew first, Mackey or Smith. Mackey alleges three
errors at trial that strongly prejudiced the jury against him on this question. First, he argues that the
prosecutor’s portrayal of Mackey as a violent person through prior bad acts constitutes reversible
error. Next, he claims that his due process rights were violated when the court repeatedly allowed
the prosecutor to mention Mackey’s post-arrest silence. Finally, he claims that his appointed
counsel, John Luskin, was constitutionally ineffective, because he (a) called Whitmore as a witness
when she had nothing to add to his case; (b) failed to request a limiting instruction to limit the use
of facts regarding Mackey’s prior bad acts that were used to impeach Whitmore; (c) failed to object
to the use of Whitmore’s prior bad acts, which, Mackey argues, worked to prove guilt by
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association; (d) failed to object to the introduction of evidence that Mackey maintained an “arsenal”
of guns at his house; (e) failed to object to prosecutorial statements that could imply that Mackey
was guilty solely because he was carrying a gun illegally; and (f) failed to object to the prosecutor’s
repeated reference to Mackey’s post-arrest silence as evidence of his guilt.
II.
We review the decision of a district court to grant or deny a writ of habeas corpus de novo,
but review factual findings by that court for clear error, except where the district court has made
factual determinations based on its review of trial transcripts and other court records; in such cases
we review such findings de novo. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. 2000). However,
both we and the district court may grant a writ of habeas corpus vacating a state court conviction
only if we conclude that the state courts’ decisions are “contrary to, or involved an unreasonable
application of, clearly established law as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(b).
A. Prior Bad Acts Evidence
Mackey first claims that the prosecutor’s portrayal of Mackey as a violent person, through
Whitmore’s testimony as to Mackey’s prior bad acts, was reversible error. At trial, on cross-
examination, the prosecutor asked Whitmore if Mackey was a jealous or violent type of person.
When she answered in the negative, the prosecution then proceeded to ask her about several
previous times when Mackey had been violent, including once towards Whitmore and another time
towards a man who had been harassing her. After extensive voir dire, the trial court decided to
allow the introduction of these prior acts for the purpose of impeaching Whitmore. Mackey claims
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that the trial court erred in allowing this testimony, basing this claim on the Ohio Rules of Evidence,
as well as on fundamental due process concerns under the Fifth Amendment of the U.S.
Constitution.
Mackey argues that the admission of the prior bad act evidence violated the Ohio Rules of
Evidence in two ways: First, he claims, its admission violated the rule against collateral
impeachment. Ohio R. Evid. 404(A)(3), 608(B). In addition, Mackey argues that Whitmore’s
testimony was not proper as evidence of Mackey’s “motive or intent,” and was thus not relevant to
his case. See Ohio R. Evid. 404(B). However, since we are “highly circumscribed in [our] ability
to second-guess state . . . court rulings on state law in order to grant habeas relief,” Baze v. Parker,
371 F.3d 310, 322 (6th Cir. 2004), we can only grant habeas on this ground if the state court’s
violation (if any) of the state’s rules of evidence so seriously impugned fundamental fairness as to
deny a fair trial. Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988).
As to the first of the two Ohio evidentiary claims, Mackey argues that the State, having asked
Whitmore about Mackey’s jealousy and prior violence, should not have been able to inquire into her
truthfulness on these subjects, because Whitmore had not testified to them on direct examination,
and because the issues were collateral and “not material to any issue in the trial.” See, e.g., United
States v. Warledo, 557 F.2d 721, 726 (10th Cir. 1977); State v. Boggs, 588 N.E.2d 813, 817 (Ohio
1992). This contention is incorrect. The state trial court allowed the prosecution’s inquiries into
the acts at issue only for the purposes of impeaching Whitmore, not for the purposes of attacking
Mackey. The state appeals court noted that, in two of the incidents at issue, Whitmore had lied to
the police about Mackey committing a crime. State v. Mackey, No. 75300, 1999 WL 1129589, at
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*4 (Ohio Ct. App. Dec. 9, 1999). This, the court found, was directly related to the issue of
Whitmore’s truthfulness, and thus the trial court did not abuse its discretion in allowing the use of
the evidence for the purposes of impeaching Whitmore, under Ohio Rules of Evidence 404(A)(3)
and 608(B). This reasonable conclusion evinces no constitutional error.
As to Mackey’s second claim, that the evidence should not have been used against him
directly as evidence of motive or intent, Mackey argues that, because he had claimed self-defense,
motive and intent, as elements of murder, were no longer at issue; and that, in any case, the trial
court never admitted this evidence as proof of motive or intent. The state appellate court found that
the evidence was properly admitted under Ohio R. Evid. 404(B), which allows use of character
evidence to show a defendant’s motive or intent. Stating that the trial court “did not abuse its
discretion by admitting the evidence under [Ohio] Evid. R. 404(B),” the state appellate court found
no error in the use of this evidence against Mackey directly. Mackey, 1999 WL 1129589, at *4.
However, as Mackey notes on appeal, the trial court did not admit the evidence under Rule
404(B), but rather admitted it under Rule 404(A)(3), which only allows evidence related to the
character of a testifying witness as to the witness’s credibility. As a result, the state appellate court’s
decision that the evidence was properly introduced against Mackey directly was clear error, since
in fact the trial court did not allow it to be introduced against him directly. However, since both the
trial court and the state appellate court reasonably found that the evidence was usable for the
alternate purpose of attacking Whitmore’s credibility, Mackey can claim no constitutional error in
the trial court’s admission of the testimony. See, e.g., NLRB v. Dayton Motels, Inc., 474 F.2d 328,
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333 n.3 (6th Cir. 1973) (“The doctrine that evidence inadmissible for one purpose can be admitted
for another purpose is firmly established in the law.”).
Given the state trial and appellate courts’ determination that the evidence was admissible to
impeach Whitmore under Ohio law, we find no error worthy of habeas relief in the state courts’
decisions to allow the admission of this testimony, the state appeals court’s misstatement of the
decision below notwithstanding.
Mackey further argues, however, that the admission of this testimony rendered his trial
fundamentally unfair, regardless of Ohio evidentiary law. See, e.g., Bugh v. Mitchell, 329 F.3d 496,
512 (6th Cir. 2003); Doan v. Brigano, 237 F.3d 722, 736 (6th Cir. 2001) (holding that a state court
ruling that was proper under state evidentiary rules nonetheless violated due process by rendering
a trial unfair), abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003). While it may
be true that the evidence at issue should not have been used directly against Mackey, his counsel did
not request a limiting instruction on this issue. It is a well-settled proposition of law in Ohio that
“it is not error for the court to admit evidence which may be admissible for one purpose and
inadmissible for another when the objection to the evidence is general.” 42 Ohio Jur. 3d 392,
Evidence and Witnesses § 165 (2003); see also State v. Collins, 585 N.E.2d 532, 537 (Ohio Ct. App.
1990); Agler v. Schine Theatrical Co., 17 N.E.2d 118, 119 (Ohio Ct. App. 1936). Further, the
court’s failure to give a limiting instruction in such a circumstance is also not error in the absence
of a specific request for such an instruction. See, e.g., 42 Ohio Jur. 3d 392, Evidence and Witnesses
§ 165 (2003) (“[T]he trial court’s failure to give an instruction limiting the scope of evidence
admissible for one purpose but inadmissible for others is not a ground for reversal when no such
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instruction was requested.”); see also Ohio R. Evid. 105, staff note (1980) (stating same and citing
the relevant section in Ohio Jur.); State v. King, No. 88AP-665, 1998 WL 83577 (Ohio Ct. App. Jul.
18, 1989) (unpublished decision). Since the testimony at issue here was indeed admissible for the
purposes of impeaching Whitmore, the lack of an instruction or other admonishment to the jury as
to its use against Mackey cannot be reversible error, since no such instruction was requested. And
to the extent that Mackey’s claim on this point is just that this evidence was more prejudicial than
probative, we are not “firmly convinced” that the decision to allow this evidence for the purpose of
impeaching Whitmore was an abuse of discretion. See, e.g., Pressman v. Franklin Nat’l Bank, 384
F.3d 182, 187 (6th Cir. 2004); Oliphant v. Koehler, 594 F.2d 547, 555 (6th Cir. 1979) (holding that
such matters are best left to the sound discretion of the trial court).
We thus find no error warranting habeas relief in the evidentiary decisions of the state courts.
B. Use of Mackey’s Post-Arrest Silence
Next, Mackey claims that the prosecution’s repeated references to Mackey’s post-arrest
silence during cross-examination and closing argument violated his due process rights. Explaining
that the Miranda warning of a right to remain silent implied that such silence would not be used
against a defendant, the Supreme Court in Doyle v. Ohio, 426 U.S. 610, 619 (1976), held that
prosecutors may not refer, for impeachment purposes, to a defendant’s post-Miranda silence. While
Doyle does not apply to the use of such silence as to prior inconsistent statements, see Anderson v.
Charles, 447 U.S. 404, 408 (1980), no such use was made in Mackey’s case, nor is any alleged by
the State. Outside of this exception, no court has found any other valid reason for allowing the
government to use a defendant’s silence to impeach him. However, once having found a Doyle
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violation, we may not order a retrial (or grant a writ of habeas corpus) without a determination that
the violation substantially affected the outcome of the trial. See, e.g., Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (holding that, to require reversal, the error must have had a “substantial and
injurious effect or influence in determining the jury’s verdict.”). In criminal cases, where “beyond
a reasonable doubt” is the standard for conviction, however, “if one cannot say, with fair assurance,
. . . that the judgment was not substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765 (1946).
Mackey contends that, under Doyle, the prosecution’s repetitive discussion of the fact that
he did not mention his defense of self-defense between the time of his arrest and the time of his trial
was both improper and a violation of his right to due process under the Fourteenth Amendment.
During the prosecution’s cross-examination of Mackey, just after Mackey testified that his lawyer
told him not to say anything to the police when turning himself in, the following exchange occurred:
Q: And you have never given your side of the story since April 14th or 15th, until
today in court, September 15th, 1998?
A: Is it the 15th?
Q: So five months have gone by since these events occurred, is that fair to say?
A: Yes, sir.
Q: And that five months is the first time you have given your version of what
happened in front of the Office Lounge, right?
A: I beg your pardon.
Q: This is the first time you have given your version as to what happened in the
Office Lounge to any type of authority?
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A: [Y]es, this is the first time.
Q: And you maintained, though, that from the day it happened, it was strictly self-
defense, correct?
A: Yes, sir.
Later, in closing, the prosecution made the following statement:
[Mackey] claims that David Smith went for his gun. He’s the defendant in
this case. He’s charged with a crime. So I anticipate that’s what his
testimony is going to be, although it took five months for him to so indicate.
(emphasis added). Several minutes later, the prosecutor added:
There’s no voluntariness here. We hear his version. He was arrested April
15th. The first time any official version of what happened was when
Maurice Mackey took the witness stand and gave his accounts of some five
months later. I find it a little peculiar, you are alleging self-defense, it takes
you five months to so indicate.
(emphasis added). No objection was made to any of these statements by trial counsel, nor did the
trial judge instruct the jury in any way as to these statements. There can be little question that such
direct references to Mackey’s post-Miranda silence are clear violations of the standard elucidated
in Doyle. See, e.g., Gravley v. Mills, 87 F.3d 779, 787–88 (6th Cir. 1996) (citing similar references
as Doyle violations).
However, it does not appear that the Doyle error, considered alone, significantly affected the
outcome of Mackey’s case. True, Mackey’s case involves significantly less evidence, and a
significantly more believable defense, than did the case in Gravley, where a panel of this Court
found that Doyle error required retrial. Id. One would expect verdicts in closer cases (such as
Mackey’s) to be more easily affected by Doyle errors. However, in his closing, Luskin, despite not
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objecting to the prosecution’s mention of Mackey’s silence, significantly diminished the chance that
the jury used the prosecution’s repeated mentions of Mackey’s silence against Mackey:
If an individual, whoever that individual is, you, I, Mr. Kellon, Judge
McGinty, anyone has an inalienable right, a constitutional right to talk
to their attorney. Ladies and gentlemen, no individual can disparage an
individual because they wanted to talk to their attorney before they talk
to the government. And if that attorney says to them, “He does not wish
to make any type of statement,” be it self-incriminating or not, ladies
and gentlemen, it’s the Fifth Amendment to the Constitution of the
United States of America.
And Mr. Rubin advised his client, Maurice Mackey, “Maurice does not
want to make a statement,” and that is a right that Mr. Mackey exercised
on the advice of his counsel.
So [if] it took five months to hear Maurice Mackey’s story, then you
blame it on Irl Rubin and blame it on John Luskin, because that’s
what we advised him to do.
It is, of course, not inconceivable that a juror could have disbelieved this statement, but the
right to an attorney and the right to remain silent are commonly known to society at large. Given
both the common popular knowledge of the right to remain silent and to the advice of an attorney,
and given Mackey’s counsel’s statement on closing that substantially mitigated the adverse effects
of the Doyle violation, we can say with fair assurances that the judgment was not substantially
swayed by the Doyle error in this case, when considering that error by itself. Therefore, the state
courts’ determination that the prosecution’s Doyle references, when considered alone, do not rise
to the level required to issue a writ of habeas corpus was not unreasonable.
C. Ineffective Assistance of Counsel
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In order to establish a violation of the Sixth Amendment right to counsel, a defendant must
show that the attorney’s performance was deficient, “meaning that counsel made errors so serious
that counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment.”
Riggs v. United States, 209 F.3d 828, 831 (6th Cir. 2000) (quoting Strickland v. Washington, 466
U.S. 668, 687 (1984)). Under the familiar Strickland standard, this involves a two-step process.
First, we must judge the reasonableness of counsel’s challenged conduct, determining whether the
acts or omissions identified by a defendant are outside the wide range of professionally competent
assistance. Strickland, 466 U.S. at 690. During this step, there is a strong presumption that counsel
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. Id.
If any alleged errors of counsel are found to be constitutionally deficient performances, a
defendant must still prove that the deficiency resulted in significant prejudice to the defense. “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. A reasonable probability is a
probability sufficient to undermine confidence in the outcome,” though a defendant need not prove
by a preponderance of the evidence that the result would have been different. Id. at 694. Further,
in determining whether prejudice has resulted from counsel’s errors, a court “must consider the
totality of the evidence before the jury. . . . [A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with overwhelming record support.”
Id. at 695. In making this determination as to prejudice, we examine the combined effect of all acts
of counsel found to be constitutionally deficient, in light of the totality of the evidence in the case.
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See, e.g., Blackburn v. Foltz, 828 F.2d 1177, 1186 (6th Cir. 1987). With these standards in mind,
we turn to Mackey’s allegations of trial counsel ineffectiveness.
First, Mackey contends that Luskin’s decision to call Whitmore, Mackey’s girlfriend, as a
witness constituted ineffective assistance because her testimony allowed the prosecution to introduce
damaging evidence, including Mackey’s past threats to Whitmore’s former employer, that would
not otherwise have been presented to the jury. Mackey likens this to a case where a defendant’s trial
counsel had failed to investigate adequately the testimony of his only expert witness, whose
testimony turned out to be fundamentally opposed to the defense’s sole defense. See Combs v.
Coyle, 205 F.3d 269, 288 (6th Cir. 2000) (finding ineffective assistance in such a case).
Here, however, the decision to call Whitmore as a witness on direct examination, whatever
the consequences, was not constitutionally unreasonable. Since Whitmore was one of only two
surviving witnesses to the shooting, and since she was the object of Smith’s comment in the lounge,
Luskin could reasonably have used her testimony to provide additional context to Mackey’s
testimony or his self-defense theory. In particular, Whitmore described Smith as having spoken first
outside the bar, whereas Wright, the only other witness to the shooting, said Mackey spoke first.
This alone was sufficient reason to call Whitmore as a witness. It is not inconceivable that Luskin
was worried about what would have happened if the prosecution had called Whitmore as a witness
or that, perhaps, Luskin believed Whitmore’s testimony would show that Mackey cared about
Whitmore’s well-being and was thus a caring man. Regardless of Luskin’s actual reasoning, the
existence of so many reasonable trial strategies for calling Whitmore, in conjunction with the
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presumption that counsel acted constitutionally, renders this decision constitutionally sound. See,
e.g., Miller v. Francis, 269 F.3d 609, 615-16 (6th Cir. 2001).
Next, Mackey argues Luskin was deficient in failing to request a limiting instruction as to
certain testimony, regarding Mackey’s prior bad acts, that was supposed to have been used only to
impeach Whitmore. The evidence at issue consisted of Whitmore’s testimony on cross-examination
regarding previous times Mackey had encouraged her to lie to protect him and previous occasions
on which Mackey had been violent both towards Whitmore and towards men who had shown an
interest in her. The record does not contain any requests by counsel for such an instruction, but the
record does reflect that Luskin did object to the prosecution’s cross-examination of Whitmore on
these subjects, asking for it to be “limited,” though it is not clear whether this request was to limit
the scope of the cross-examination or to issue a limiting instruction to the jury. The trial judge
allowed the cross-examination to continue, explicitly stating that he was admitting the evidence only
under Ohio R. Evid. 404(A)(3). The trial judge did not issue any limiting instruction, though he did
warn the parties that he would rule on the scope of the examination on a “case by case, question by
question basis.” While Luskin did object occasionally during the rest of Whitmore’s cross-
examination, he did not raise the issue of a limiting instruction at any other time before the end of
the trial.
At Mackey’s habeas hearing in the district court, the magistrate judge, whose findings the
district court adopted, concluded that since this evidence was admitted, and since Luskin had
objected to its admission, there was no prejudice resulting from counsel’s failure to request a
limiting instruction. As a result, the district court did not determine whether or not this failure
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constituted error. This decision might have been appropriate had the failure to request a limiting
instruction been the only error Mackey alleges. See, e.g., Strickland, 466 U.S. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed.”). But the Strickland test requires that prejudice be evaluated in light of the
cumulative effect of all constitutionally infirm actions by counsel. See, e.g., Strickland, 466 U.S.
at 690 (requiring consideration of counsel’s actions “in light of all of the circumstances”); id. at 695
(noting that the question to be answered in cases such as this is whether, “absent the errors, the
factfinder would have had a reasonable doubt respecting guilt”(emphasis added)).
Taking the unaffected findings as a given, and taking due account of the effect of the
errors on the remaining findings, a court making the prejudice inquiry must ask if the
defendant has met the burden of showing that the decision reached would reasonably
likely have been different absent the errors.
Id. at 696; cf. Kyles v. Whitley, 514 U.S. 419, 434, 436 (1995) (considering cumulative effect of
errors in another context in which the Strickland standard for prejudice (though not the Strickland
test for ineffective assistance) had been applied). As a result, and since we find other such errors
below, we must determine whether Luskin’s failure to request a limiting instruction was in fact
constitutional error before we reach the issue of prejudice.
Both the Ohio courts and this Circuit have previously held that the failure to request a
limiting instruction with regard to some important piece of evidence can constitute constitutionally
ineffective assistance of counsel if the failure falls outside of an objective standard of professionally
reasonable conduct. See, e.g., White v. McAninch, 235 F.3d 988, 998 (6th Cir. 2000); State v.
Lascola, 61 Ohio App. 3d 228, 238-39 (Ohio Ct. App. 1988). Thus, we must determine whether a
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decision not to request an instruction limiting the jury’s use of this testimony to determining
Whitmore’s credibility was professionally unreasonable.
The State argues that this decision was not unreasonable because Luskin would never have
been granted a limiting instruction, since the state appellate court found that the evidence was
properly admitted under Ohio R. Evid. 404(B). While it is true that counsel cannot be held
ineffective for failing to object to evidence that was properly admitted, see, e.g., United States v.
Neeley, 189 F.3d 670, 684 (7th Cir. 1999), this was not the case here. The state appellate court,
acting on an abuse of discretion standard, under the incorrect presumption that the evidence had in
fact been admitted directly against Mackey under Ohio R. Evid. 404(B), found that the evidence
was properly introduced against Mackey, and thus that no prejudice had resulted from the lack of
a limiting instruction. But that court’s incorrect assumption as to the grounds on which the evidence
was admitted vitiates its entire decision on this point. The evidence was not admitted under Ohio
R. Evid. 404(B), the State did not attempt to admit it on such grounds at trial, and the defense never
had an opportunity to object or appeal on these grounds, since Rule 404(B) had never even been
mentioned (directly or by inference) at trial. It is possible that the trial judge would have denied a
motion to admit this evidence on 404(B) grounds; indeed, he explicitly limited the grounds on which
he was admitting it to uses under Rule 404(A)(3). J.A. 251-52, 322-23. Cf. United States v.
DeGeratto, 876 F.2d 576, 584 (7th Cir. 1989) (noting that the use of prior bad acts evidence for the
purposes of attacking the character of a witness “is limited by the rule, and is to be considered by
the jury only for certain purposes. A limiting instruction should ordinarily and routinely be given
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at the time the evidence is admitted, and again at the close of the case.”). As a result, Luskin might
very well have been successful had he requested a limiting instruction.
In addition, there is no reasonable trial strategy to support Luskin’s failure to request such
an instruction here. While it is true that an attorney may frequently choose to forego a limiting
instruction as to prior bad acts to avoid focusing the jury’s attention any further on the acts, here the
jury’s attention was already highly focused on the acts at issue. The prosecution’s cross-
examination of Whitmore with regard to prior bad acts takes up over sixteen pages of transcript (not
including the 50 pages of voir dire testimony on these points, or the fact that the jury already knew
Luskin had objected to the evidence’s admission) covering at least three different incidents. No
reasonable attorney, especially in a case this close, could possibly have believed he would be further
focusing the jury’s attention on this testimony by requesting a limiting instruction. Further, the
evidence at issue clearly was significant to Mackey’s case; the prosecution’s theory of the shooting
was that it did not result from self-defense, but instead from Mackey being upset at Smith for
harassing his girlfriend. Thus, evidence that he had previously harmed those harassing his girlfriend
could obviously have influenced the jury as to whether or not Mackey shot first, the only fact at
issue in the case. Luskin should have been aware of this; any professionally competent lawyer
would have done what he could to limit the admission and then use of such testimony. As a result,
Luskin was ineffective in not doing so.
The vast majority of courts hearing ineffective assistance claims based on failure to request
a limiting instruction have determined that no prejudice resulted from counsel’s failures. See, e.g.,
Mitzel v. Tate, 267 F.3d 524, 538 (6th Cir. 2001). However, as noted above, any prejudice resulting
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from this error must be considered in combination with other errors, if any. See, e.g., Strickland,
466 U.S. at 695-96. Therefore, we discuss prejudice below only after considering each of Mackey’s
additional allegations of counsel’s ineffectiveness.
Mackey next asserts that Luskin ought to have objected to the introduction of evidence that
he maintained an “arsenal” of guns at his home. While Luskin did object to the prosecutor’s
statement that Mackey was someone who enjoyed “getting out his AK-47 and blowing the shit out
of the woods,” Luskin did not object to the prosecution’s lengthy inquiries into the capabilities of
each of the four weapons (other than the murder weapon) found in Mackey’s house, nor did he
object to the prosecutor’s statement on closing that Mackey could have “conducted a little mini-war”
with the police at his house using the many guns found there. The state appellate court found that
these two oversights were constitutionally infirm, but concluded that no prejudice resulted from
either. State v. Mackey, No. 75300, 1999 WL 1129589, at 13-15 (Ohio Ct. App. Dec. 9, 1999). We
agree that no appropriate trial strategy would warrant a defense attorney’s standing by idly while
such evidence was introduced, and that the lack of an objection as to this evidence was sufficient
error to meet the first prong of the Strickland test. In contrast to the state appellate court’s opinion,
however, and in accord with the clear precedent of Strickland, we will evaluate the cumulative
effect of all of Luskin’s errors below instead of considering each individually. See, e.g., Strickland,
466 U.S. at 695-96.
Mackey further claims that Luskin should have objected to the prosecution’s introduction
of Whitmore’s extrajudicial acts and statements that were used to prove “guilt by association.” First
he complains about Whitmore’s friend’s testimony regarding a statement Whitmore made during
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her phone call to the lounge after the shooting (“He pulled a gun out on me too.”). But the record
reflects that Luskin did object to the use of the statement, at least with regard to its link to Mackey.
In addition, this statement was arguably being properly used to show Whitmore’s state of mind at
the time of the telephone call. It thus did not constitute objectionable error. Mackey also claims
Luskin should have objected to testimony that Whitmore attempted to harass witnesses prior to trial.
As for the “harassment,” the only relevant testimony on point related to several phone calls and an
“unfriendly, irritating” conversation where Whitmore “made references” to the testimony the
witness was going to give. This, without any details of a specific request regarding testimony, does
not rise to the level of witness harassment or other improper actions whose mention to a jury would
be objectionable. Hence, there was no error in Luskin’s failure to object to the evidence about
which Mackey complains here.
Mackey also claims Luskin should have objected to the prosecution’s closing argument that
Smith was “legally permitted to carry his service handgun into the bar.” The state appellate court
found that Luskin could have objected here, but that it was instead reasonable trial strategy not to
object at that moment, since objections can disrupt the flow of a closing statement and are often
considered technical and bothersome by a jury. The state court noted that an attorney might
reasonably think it would be more appropriate to counter such claims in the defense closing. This
Luskin did, noting to the jury that there was “absolutely no evidence” Smith was permitted to carry
a firearm into the bar and that the prosecution had “failed” in its attempt to prove otherwise. As
noted above, we are not permitted to second-guess reasonable trial strategies, and this is undoubtedly
one such strategy. Also, even were this not a reasonable trial strategy, it is unlikely that this highly
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collateral issue would have had any effect, cumulative or otherwise, on the jury’s decision as to who
shot first. The lack of an objection as to this statement was therefore not error under the first prong
of Strickland, nor could it have any effect on our evaluation of the second prong.
Finally, Mackey argues that his lawyer erred in not objecting to the prosecution’s repeated
references to Mackey’s post-arrest silence. It is indisputable that such references violate the
standard in Doyle. In addition, the repetitive nature of these statements, occurring during cross-
examination of the defendant as well as closing argument, make them less susceptible to being cured
in the defendant’s closing. There is no reason why an attorney would not want to object to such
questions during the cross-examination of a defendant. The district court merely noted that Luskin
addressed these issues on closing, but did not determine whether or not failure to object to the
prosecution’s reference to Mackey’s silence during both cross-examination and closing argument
was error.
In addition, the state appellate court ignored this issue in its first opinion (though it had
properly been raised) and, in its second opinion, merely resolved the issue by saying no prejudice
had resulted. State v. Mackey, No. 75300, 1999 WL 1129589, at *11-12 (Ohio Ct. App. Dec. 9,
1999). We find that Luskin’s failure to object to the obvious Doyle violations was an error. No
reasonable trial strategy could have Luskin sit by idly on cross-examination while the defendant
testified repeatedly that he had not come forth with his story for five months after being arrested,
especially when the way the jury viewed Mackey’s testimony was so central to determination of the
only fact at issue in the case. This was clear error, under the first prong of Strickland. We thus
move to determining if the cumulative errors of Mackey’s counsel were prejudicial to his case.
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We cannot grant a writ of habeas corpus on an ineffective assistance of counsel claim
without a finding that the state appellate court’s application of this Strickland standard was “contrary
to, or involved an unreasonable application of, clearly established law as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(b); see also Williams v. Taylor, 529 U.S. 362 (2000).
In considering whether or not a state court has acted contrary to clearly established Supreme Court
law, we look only to the holdings of the Supreme Court, and not to the dicta. Williams, 529 U.S.
at 405-07. In contrast, a state court can be said to have unreasonably applied Supreme Court law
“if the state court identifies the correct governing principle from the Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. Here, the clear
mandate of Strickland and several other Supreme Court cases is that the effect of all of counsel’s
errors is to be considered in toto, against the backdrop of the totality of the evidence in the case.
See, e.g., Strickland, 466 U.S. at 690, 695-96; Williams, 529 U.S. at 395-96, 398-99 (considering
cumulatively multiple errors of counsel in finding prejudice in light of the “entire . . . record,
viewed as a whole”); Kyles, 514 U.S. at 434, 436. In the instant case, the state appellate court, while
finding several errors in Luskin’s actions, considered the prejudicial effect of each alone. Since it
did not consider the cumulative effect of these errors upon the jury’s verdict, its decision was not
merely in error, but was contrary to clearly established Supreme Court law. See Williams, 529 U.S.
at 395-96, 398-99. As a result, if the cumulative effect of these errors resulted in prejudice to
Mackey, he is entitled to the writ, notwithstanding the decisions of the state courts in this case.
As noted above, Luskin was ineffective by not requesting a limiting instruction as to
Mackey’s prior bad acts, by not objecting to the lengthy testimony as to the number of guns in
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Mackey’s house and their capabilities, and by not objecting to the prosecution’s mention of
Mackey’s post-arrest silence. Therefore, we must determine if there is “a reasonable probability
that, but for [these three] errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. As always, we note that a defendant is entitled to a “fair trial but not a perfect one,
for there are no perfect trials.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553
(1984). In the vast majority of cases, where there is significant evidence supporting the conviction,
the type of errors at issue here would be unlikely to affect the jury’s verdict. Here, however, the
paucity of evidence against Mackey was striking. The only issue in the case was who drew his
weapon first, Mackey or Smith. There were no witnesses who had a line of sight that would have
allowed them to answer this question. There was no forensic evidence to indicate who drew first,
other than Smith’s intoxication. Mackey and Whitmore did flee from the scene, but each testified
they did so because they were scared. The only evidence the jury could use to answer the “who
drew first” question was thus Mackey’s testimony that he shot in self-defense. The jury had to make
a decision: either Mackey was credible, and thus innocent, or he was not believable, and thus guilty.
However, prior to Mackey’s testimony, Luskin’s errors led to the jury being improperly
informed that Mackey was a gun-loving man who maintained an “arsenal” of deadly weapons at
home, who had previously been violent towards those who had harassed or expressed an interest in
his girlfriend, and who was silent as to his explanation for why he shot a police officer for five
months prior to trial before suddenly claiming self-defense. This easily could have affected their
determination as to Mackey’s credibility. See, e.g., Strickland, 466 U.S. at 696 (“[A] verdict or
conclusion only weakly supported by the record is more likely to have been affected by errors than
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one with overwhelming record support.”); United States v. Rapanos, 115 F.3d 367, 371 (6th Cir.
1997) (“It is the opinion of the Court, after viewing the entirety of the trial, that a reasonable jury
could have rendered either verdict. . . . In such a situation, an unchecked prejudicial comment may
indeed have tipped the scales in favor of conviction.”). Luskin’s closing statement might have
remedied some of the effect of the Doyle violations. However, by then, the cumulative damage the
three errors could have inflicted upon the jury’s determination as to Mackey’s credibility was severe.
Since this credibility determination was so central to the outcome of this case, given the lack of any
physical or testimonial evidence (other than Mackey’s) regarding who drew first, the effects of
Luskin’s errors were magnified. We thus find that the impact of counsel’s ineffectiveness was
sufficient to cast doubt on the jury’s decision as to Mackey’s credibility, and thus to the trial’s
eventual outcome.1
It should be noted that cases such as this one, where there are no witnesses and no physical
evidence that would cast any light upon the central question in the case, are rare. The vast majority
of the time, errors such as those made here by Luskin would be insufficient to vacate a verdict on
direct appeal, never mind via a writ of habeas corpus. But where a case is as close as Mackey’s was,
with so little evidence, the teaching of Strickland, that counsel’s effectiveness must be evaluated in
1
The dissent references Mackey’s flight and pre-arrest silence as more evidence that he,
rather than Smith, shot first. But both of these factors depend directly upon the jury’s view of
Mackey’s testimony that he and Whitmore fled from the scene and avoided the police for several
hours because they were scared. Had the jury believed this explanation, these factors would not
have weighed against Mackey. As we have noted, this entire case rests on a determination of
Mackey’s credibility. But because his attorney’s errors significantly undermined this credibility,
we disagree with the dissent that these factors render Mackey’s attorney’s errors non-prejudicial.
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light of the “totality of the evidence,” means that we, along with state appellate courts, must
scrutinize more closely than usual the cumulative effects of errors such as those made here. This
scrutiny today leads us to find that Luskin’s errors sufficiently prejudiced Mackey’s case such that
a new trial is warranted.
III.
For the preceding reasons, we REVERSE the judgment of the district court and REMAND
Mackey’s case with instructions to issue a conditional writ of habeas corpus, giving the State of
Ohio 180 days within which to retry Mackey or release him from state custody.
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JULIA SMITH GIBBONS, Circuit Judge, dissenting. I agree with the majority’s
resolution of the issues discussed in Parts II.A and B of the majority opinion. And while I agree
with the majority that Maurice Mackey’s attorney was deficient when he failed to request a limiting
instruction with respect to Stephanie Whitmore’s testimony about Mackey’s prior bad acts, failed
to object to prejudicial testimony about Mackey’s gun ownership, and failed to object to statements
about Mackey’s post-arrest silence, I do not believe that Mackey was prejudiced by the cumulative
effect of his attorney’s errors. I therefore dissent.
To succeed on an ineffective assistance of counsel claim, a defendant must show that his
counsel’s performance was deficient and that it prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). A counsel’s performance was deficient if it was objectively unreasonable
under the circumstances. Id. at 688. It was prejudicial if “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694. For the purpose of ineffective assistance claims, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. In order to grant a habeas petition, the state
court’s application of Strickland must be objectively unreasonable or contrary to clearly established
Supreme Court law. See 28 U.S.C. § 2254(d).
The majority concludes that the state court’s decision was contrary to clearly established
Supreme Court law because the state court did not consider the prejudicial impact of counsel’s errors
as a group but rather evaluated prejudice with respect to each of the errors alone. Strickland’s exact
language requires the defendant to show that, “but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” 466 U.S. at 694 (emphasis added). While Strickland
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does speak in terms of the prejudicial impact of the “errors,” it does not explicitly state that the
prejudice analysis should be conducted in light of the errors considered as a group. Because
AEDPA requires that Supreme Court law be “clearly established,” it is not entirely obvious that the
state court acted in an objectively unreasonable way by not deducing from Strickland the purported
requirement that an attorney’s errors should be combined to consider whether a defendant was
prejudiced.
I also do not believe that Mackey has established that “there is a reasonable probability that
. . . the result of the proceeding would have been different” absent his attorney’s mistakes. Id.
While there was not an overwhelming amount of evidence available in this case, there was enough
evidence presented that was unaffected by counsel’s errors for the jury to properly evaluate
Mackey’s self-defense claim. For example, several people testified as to the events that occurred
that night outside of the Office Lounge. Mackey testified at trial that the victim Smith pulled his
gun first. Whitmore, Mackey’s girlfriend, testified that she saw the victim Smith pull a gun and
point it at her stomach. She also testified that she could not see Mackey at this time, but heard him
fire two shots. Evidence was also presented that Smith died clutching his gun in his hand. Finally,
as noted in the Ohio appellate court opinion, both Smith and Wright were shot by Mackey. The
bullet hit Wright as he was running away from the scene and trying to reenter the Office Lounge;
the jury could have found this fact inconsistent with Mackey’s claim that he was defending himself
against Smith.
In addition, Mackey’s behavior after the shooting was inconsistent with his theory of self-
defense. Mackey and his girlfriend fled the scene and drove home. When the police arrived at the
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home in the early morning hours after the shooting, neither answered the door. They did not
surrender to the police until several hours after they knew that the police were looking for them.
With these undisputed facts before it, the jury could have discounted Mackey’s claim of self-defense
claim as incompatible with his actions after the shooting. See Long v. Smith, 663 F.2d 18, 22 (6th
Cir. 1981) (“Ordinarily, a person who commits an act in self-defense does not flee from the law after
committing his act.”); State v. Taylor, 676 N.E.2d 82, 94 (Ohio 1997) (quoting State v. Eaton, 249
N.E.2d 897, 898 (Ohio 1969)) (“Flight from justice . . . may be indicative of a consciousness of
guilt.”).
Mackey’s flight from the police also allowed the prosecution the opportunity to permissibly
refer to his post-shooting, pre-arrest silence. See Jenkins v. Anderson, 447 U.S. 231, 240 (1980)
(“We hold that impeachment by use of prearrest silence does not violate the Fourteenth
Amendment.”); see also State v. Sabbah, 468 N.E.2d 718, 719 (Ohio Ct. App. 1982) (“[W]here there
has been a substantial period of pre-arrest silence, then impeachment by reference to such silence
is permissible . . . .”). While the prosecution’s comments about Mackey’s failure to tell the police
after his arrest that he acted in self-defense were likely improper under Doyle v. Ohio, 426 U.S. 610,
619 (1976), the prosecution’s references to his pre-arrest silence were proper and allowed the jury
to consider his self-defense claim in the context of his failure to talk to the police right after the
incident at the Office Lounge.
In my view, there was enough evidence before the jury that was not tainted by counsel’s
errors for the jury to decide that Mackey did not act in self-defense and was guilty of murder and
attempted murder. While Strickland counsels that “a verdict or conclusion only weakly supported
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by the record is more likely to have been affected by errors than one with overwhelming record
support,” 466 U.S. at 696, this was not such a weakly supported case such that there is a reasonable
probability that counsel’s errors tipped the balance between a guilty and a not guilty verdict. Rather,
the evidence that Mackey shot two people, shot Wright as he was turning to run back into the Office
Lounge, fled the scene, and refused to talk to the police after they arrived at his home strongly
suggests that his self-defense claim was not credible.
Given this evidence, I do not believe that Mackey has established that “there is a reasonable
probability that . . . the result of the proceeding would have been different” absent his attorney’s
mistakes. Id. at 694. For this reason, I would affirm the district court’s decision denying Mackey’s
petition for a writ of habeas corpus.
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