Mark Unger v. David Bergh

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0335n.06
No. 17-2045
FILED
UNITED STATES COURT OF APPEALS Jul 10, 2018
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MARK UNGER,
Petitioner-Appellant,
v.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DAVID BERGH,
EASTERN DISTRICT OF MICHIGAN
Respondent-Appellee.
BEFORE: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
CLAY, Circuit Judge. Petitioner Mark Unger, who was convicted of first-degree
premeditated murder pursuant to MCL 750.316(1)(a) and sentenced to life without parole by a
Michigan jury in 2006, appeals from the judgment entered by the district court dismissing his
petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. For the reasons set forth below,
we AFFIRM.
BACKGROUND
Factual Background
In its decision affirming Unger’s conviction and sentence on direct appeal, the Michigan
Court of Appeals described the facts giving rise to this case as follows:
Defendant was the husband of Florence Unger (also referred to as the victim).
Defendant entered residential rehabilitation in late 2002 for alleged prescription
drug and gambling addictions. After completing rehabilitation, however, defendant
did not return to work. Florence Unger filed for divorce in August 2003.
No. 17-2045
Notwithstanding the pending divorce proceedings, defendant traveled to the
Watervale resort area on Lower Herring Lake with his wife and two children on
October 24, 2003. The family arrived sometime in the afternoon and settled into
the cottage that they had rented for the weekend. Not far from the cottage was a
boathouse. On the roof of the boathouse was a wooden deck, where vacationers at
Watervale often congregated. However, there were no other vacationers staying at
Watervale on October 24, 2003.
Defendant was on the deck with the victim on the evening of October 24, 2003.
Defendant told the police and several family friends that sometime after dark, the
victim had asked him to go back to the cottage and check on the two children.
Defendant explained that he walked back to the cottage, put the children to bed,
and returned to the deck. Defendant told the police and several friends that the
victim was not on the deck when he returned, but that he presumed that she had
gone to speak with one of the neighbors. Defendant maintained that he then
returned to the cottage and fell asleep watching a movie.
The following morning, defendant called neighbors Linn and Maggie Duncan.
Defendant informed the Duncans that Florence had never returned to the cottage on
the previous night. The Duncans got dressed and went outside to help defendant
search for his wife. Linn and Maggie Duncan went toward the boathouse and
discovered Florence Unger dead in the shallow water of Lower Herring Lake. It
appeared that she had fallen from the boathouse deck. After finding the body, Linn
Duncan came up from the boathouse and walked toward the cottages. Duncan met
up with defendant in front of the cottages. According to Duncan, “I touched
[defendant] on the chest” and said, “Mark, you’re not going to like it. She is in the
water.” Duncan testified that defendant then “went ballistic,” started “crying and
screaming and hollering,” and “went diagonally down to the water and jumped right
in, right next to [the victim’s body].” Duncan testified that it was not possible to
see the victim’s body from the location where he had met defendant because the
view of the lake was blocked by bushes and trees. Duncan also testified that he had
not given defendant any information whatsoever about the precise location of the
victim’s body.
Maggie Duncan called 911 and the police arrived at the scene. About 12 feet below
the surface of the rooftop deck, an area of concrete pavement extends from the
boathouse wall to the edge of Lower Herring Lake. The police observed a large
bloodstain on the concrete pavement. Also found on the concrete pavement were
one of the victim’s earrings, one or two candles, a broken glass candleholder, and
a blue blanket. There was no trail of blood between the bloodstain on the concrete
and the edge of the lake. The railing surrounding the rooftop deck was noticeably
damaged and was bowed out toward the lake.
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Upon arriving at the cottage, the police noticed that defendant had already packed
his vehicle and seemed eager to leave Watervale with his two sons. The police
obtained a warrant to search the vehicle and the interior of the cottage. Among other
things, the police recovered a pair of men’s shoes from the vehicle. On one of the
shoes was a white paint smear. The white paint was tested and was found to be
chemically consistent with the white paint on the railing of the boathouse deck.
Defendant was arrested and charged with first-degree premeditated murder. At the
preliminary examination, Dr. Stephen D. Cohle testified that the victim had died of
traumatic brain injuries sustained upon impact with the concrete pavement. In
contrast, Dr. Ljubisa J. Dragovic opined that the victim had not died from head
injuries sustained upon impact with the concrete, but had drowned after being
dragged or moved into Lower Herring Lake. The district court excluded Dr.
Dragovic’s opinion testimony and determined that there was no admissible
evidence of premeditation. Defendant was therefore bound over for trial on a charge
of second-degree murder.
Unlike the district court, the circuit court ruled that Dr. Dragovic’s expert testimony
was admissible. Accordingly, the circuit court allowed the prosecution to amend
the information and to reinstate the charge of first-degree premeditated murder. The
case proceeded to trial.
The prosecution argued that defendant had kicked or pushed the victim over the
railing, and had then moved the victim from the concrete pavement into the lake in
an effort to drown her. The prosecution relied heavily on the testimony of Dr.
Dragovic and other expert witnesses. In response, the defense maintained that the
victim’s death had been accidental and that the victim had died of traumatic brain
injuries nearly immediately upon striking the concrete. The defense presented
expert testimony to support its theory that the victim had accidentally fallen over
the railing and had rolled, bounced, or otherwise inadvertently moved into the lake.
After an extensive trial, the jury convicted defendant of first-degree premeditated
murder. He was sentenced to life in prison without parole.
People v. Unger, 749 N.W.2d 272, 281–82 (Mich. Ct. App. 2008) (alteration in original).
Post-trial State Court Proceedings
Following his conviction, Petitioner filed an appeal of right in the Michigan Court of
Appeals, raising nine claims for relief, including: (1) the prosecutor committed misconduct by
claiming that the defense attorneys asked their experts to lie, attacking the credibility of defense
experts based on their fees, and by arguing, without record support, that bodies do not bounce; and
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(2) defense counsel was ineffective in failing to object to the prosecutorial misconduct. The
Michigan Court of Appeals affirmed Petitioner’s conviction. Id. at 306.
On June 30, 2008, Petitioner filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims raised in the Michigan Court of Appeals and eight
additional claims. The Michigan Supreme Court denied leave to appeal. People v. Unger,
769 N.W.2d 186 (Mich. 2008).
On November 6, 2009, Petitioner filed a motion for relief from judgment in the trial court,
raising six claims for relief, only two of which are relevant to this appeal: (1) newly-discovered
evidence showed that a key prosecution expert witness, Dr. Paul McKeever, relied on junk science;
and (2) trial counsel was ineffective in the handling of Dr. McKeever’s testimony. After holding
a three-day Ginther hearing (the Michigan process for developing facts to support an ineffective-
assistance claim, see People v. Ginther, 212 N.W.2d 922 (Mich. 1973)), the court issued an oral
opinion and a subsequent supplemental written opinion denying the motion.
On March 11, 2013, Petitioner filed an application for leave to appeal in the Michigan
Court of Appeals, arguing that (1) defense counsel was ineffective because he failed to investigate
and expose the lack of support for Dr. McKeever’s testimony, failed to seek exclusion of that
testimony, and failed to prepare the defense expert to counter that testimony; and (2) juror errors
deprived Petitioner of his right to a fair trial by an impartial jury. On September 24, 2013, the
Michigan Court of Appeals denied leave to appeal. On October 29, 2013, Petitioner filed an
application for leave to appeal in the Michigan Supreme Court, which was also denied. People v.
Unger, 843 N.W.2d 513 (Mich. 2014). On July 24, 2014, he then petitioned the U.S. Supreme
Court for a writ of certiorari, again to no avail. Unger v. Michigan, 135 S. Ct. 251 (2014).
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Current Proceedings
On April 18, 2014, Unger filed a petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Michigan, raising claims of ineffective assistance of
counsel relating to trial counsel’s handling of Dr. McKeever’s testimony and its handling of
alleged prosecutorial misconduct during closing arguments. The district court denied the petition.
Unger v. Bergh, No. 14-cv-11562, 2017 WL 3314289, at *1 (E.D. Mich. Aug. 3, 2017). The court
held that “Petitioner overstates the importance of the time-interval element of Dr. McKeever’s
testimony, and he understates the effectiveness of defense counsel’s cross-examination of Dr.
McKeever.” Id. at *6. Further, “Petitioner also discounts defense counsel’s substantial
investigation and reasoned decision to limit cross-examination of Dr. McKeever, and ignores the
substantial and compelling evidence incriminating Petitioner in the murder.” Id. As for trial
counsel’s treatment of the prosecutorial misconduct, the court held that trial counsel did not fall
below a reasonable standard by failing to object to the prosecutor’s statements and that there was
no reasonable probability that the result of the proceeding would have been different had counsel
objected. Id. at *14–19.
The district court, however, granted a certificate of appealability on Unger’s ineffective
assistance claims. Id. at *19. And Unger timely filed a notice of appeal to this Court.
DISCUSSION
Before this Court on appeal, Petitioner raises two claims: (1) the state court unreasonably
applied clearly established Federal law when it held that Petitioner’s trial counsel did not provide
ineffective assistance in his handling of expert-witness testimony, particularly that of Dr. Paul
McKeever; and (2) the state court’s decision denying Petitioner’s claim that trial counsel was
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No. 17-2045
ineffective in failing to object to numerous instances of prosecutorial misconduct was both
contrary to, and an unreasonable application of, clearly established Federal law.
I. Expert Witness Testimony
Standard of Review
“On appeal of a denial or grant of a petition for a writ of habeas corpus, this Court reviews
the district court’s conclusions of law de novo[.]” Gumm v. Mitchell, 775 F.3d 345, 359–60 (6th
Cir. 2014) (citing Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir. 2012)). “Although we generally
review the district court’s findings of fact for clear error, we review de novo when the district
court’s decision in a habeas case is based on a transcript from the petitioner’s state court trial, and
the district court thus makes no credibility determination or other apparent finding of fact.” Tanner
v. Yukins, 867 F.3d 661, 671 (6th Cir. 2017) (quoting Newman v. Metrish, 543 F.3d 793, 795–96
(6th Cir. 2008)). “It is . . . well settled that the fact that constitutional error occurred in the
proceedings that led to a state-court conviction may not alone be sufficient reason for concluding
that a prisoner is entitled to the remedy of habeas.” Williams v. Taylor, 529 U.S. 362, 375 (2000)
(citations omitted). Instead, “[o]ur review of the state court’s decision . . . is generally ‘governed
by the standards set forth in the Antiterrorism & Effective Death Penalty Act of 1996,’ also known
as ‘AEDPA.’” Ceasor v. Ocwieja, 655 F. App’x 263, 276 (6th Cir. 2016) (quoting Barnes v. Elo,
231 F.3d 1025, 1028 (6th Cir. 2000)). Where a state court adjudicates a claim on the merits, the
Anti-Terrorism and Effective Death Penalty Act allows habeas relief only in limited
circumstances:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim--
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254. “This is a difficult to meet, . . . and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the doubt.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted).
“The petitioner carries the burden of proof.” Id.
Federal courts “measure state-court decisions ‘against [the Supreme] Court’s precedents as
of ‘the time the state court renders its decision.’” Greene v. Fisher, 132 S. Ct. 38, 44 (2011)
(quoting Cullen, 563 U.S. at 182) (emphasis omitted). And a state court unreasonably applies
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 “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at” an opposite result.
Williams, 529 U.S. at 405. An incorrect or erroneous application of clearly established federal law
is not the same as an unreasonable one; “relief is available under § 2254(d)(1)’s unreasonable-
application clause if, and only if, it is so obvious that a clearly established rule applies to a given
set of facts that there could be no ‘fairminded disagreement’ on the question.” White v. Woodall,
134 S. Ct. 1697, 1706–07 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
“AEDPA deference applies under § 2254(d) even when a state court does not explain the reasoning
behind its denial of relief.” Carter v. Mitchell, 829 F.3d 455, 468 (6th Cir. 2016) (citing
Harrington, 562 U.S. at 99). Thus, “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.” Williams, 529 U.S. at 411. Indeed, the
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Supreme Court has emphasized that “[e]ven a strong case for relief does not make the state court’s
contrary conclusion unreasonable.” Harrington, 562 U.S. at 88. “If this standard is difficult to
meet, that is because it was meant to be.” Id. at 102.
Ineffective assistance of counsel claims are governed by the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). “In Strickland, [the Supreme] Court made clear that ‘the
purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality
of legal representation ... [but] simply to ensure that criminal defendants receive a fair trial.’”
Cullen, 563 U.S. at 189 (quoting Strickland, 466 U.S. at 689) (second alteration in original). “Thus,
‘[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.’” Id. (quoting Strickland, 466 U.S. at 686) (alteration and emphasis
in Cullen)).
Strickland recognized the “tempt[ation] for a defendant to second-guess counsel’s
assistance or adverse sentence,” 466 U.S. at 689, and therefore the Supreme Court established that
counsel should be “strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment,” id. at 690. Strickland
imposes a two-prong framework for a defendant to overcome this strong presumption. Under
Strickland’s first prong, Petitioner must demonstrate that “counsel’s representation was deficient
in that it ‘fell below an objective standard of reasonableness.’” Towns v. Smith, 395 F.3d 251, 258
(6th Cir. 2005) (quoting Strickland, 466 U.S. at 688). In assessing whether counsel’s performance
was deficient, this Court “must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” and Petitioner “must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
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strategy.” Strickland, 466 U.S. at 689 (citation and quotation marks omitted). “The challenger’s
burden is to show ‘that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Harrington, 562 U.S. at 104
(quoting Strickland, 466 U.S. at 687).
Strickland’s second prong requires Petitioner to show “prejudice,” i.e., “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. “The likelihood of a different result must be
substantial, not just conceivable.” Harrington, 562 U.S. at 112 (citation omitted). And
“[c]ounsel’s errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.’” Id. at 104 (quoting Strickland, 466 U.S. at 687).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010). “Even under de novo review, the standard for judging counsel’s representation
is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with the client, with opposing
counsel, and with the judge.” Harrington, 562 U.S. at 105. Therefore, “[t]he question is whether
an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.” Id. (quoting Strickland,
466 U.S. at 690). Further, “[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult.” Id. Because § 2254(d)(1) of AEDPA
limits the circumstances in which federal courts may grant a writ of habeas corpus, the Supreme
Court has described habeas review of state court adjudications of ineffective assistance of counsel
claims as “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In short,
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“[w]hen § 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, 562 U.S. at 105. It is under this strict framework that this Court reviews
Petitioner’s claims.
Analysis
Unger retained a formidable defense team of four seasoned attorneys to represent him at
trial. Among that team, Thomas McGuire, a thirty-six-year veteran attorney who specialized in
medical malpractice and product liability cases was charged with handling the expert medical and
engineering witnesses through the course of the trial. Petitioner’s primary ineffective assistance
claim focuses on Mr. McGuire’s handling of the expert testimony of Dr. Paul McKeever.
Dr. McKeever testified for the prosecution as an expert in anatomical pathology and
neuropathology. He testified that he was a professor at the University of Michigan School of
Medicine and chief of the neuropathology section of the pathology department. He reviewed
Florence’s autopsy photographs, as well as slides of her brain tissue, including tissue from the
corpus callosum, which is located above the brain stem. Dr. McKeever used
immunohistochemical staining to determine the presence of axonal injury. He testified that axonal
injury does not occur after death and that a victim must have survived for at least 90 minutes
following injury for immunohistochemical staining to detect axonal swelling. Several staining
techniques were used, including neurofilament staining (“NF”) and neuron-specific enolase
staining (“NSE”). He also testified that, using the NF technique, he found evidence of axonal
swelling in the corpus callosum. Therefore, he opined that Florence survived for at least
90 minutes after she struck the concrete. Dr. McKeever testified that his conclusions regarding
survival time were based on articles published in peer-reviewed journals and collected by him in
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a Medline1 search. The prosecution used McKeever’s testimony as evidence to show that
Florence’s death was not accidental.
1. Strickland’s “Performance Prong”
Petitioner claims that Mr. McGuire failed to read the key articles upon which Dr.
McKeever based his testimony. This failure to read, Petitioner argues, “led to a cascade of
additional errors by counsel, including the failure to seek to exclude Dr. McKeever’s testimony,
the failure to effectively cross-examine Dr. McKeever regarding the lack of support in the articles
for his testimony, and the failure to provide the articles to his own expert.” (Brief for Petitioner at
20.)
It is true that “[c]ourts have not hesitated to find ineffective assistance in violation of the
Sixth Amendment when counsel fails to conduct a reasonable investigation into one or more
aspects of the case and when that failure prejudices his or her client.” Towns, 395 F.3d at 258.
This is because “[i]t is well-established that ‘[c]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes investigations unnecessary.’” Id. (quoting Strickland,
466 U.S. at 691) (second alteration in Towns). But Petitioner fails to identify any specific evidence
that trial counsel did not read the articles and did not conduct a reasonable investigation.
Petitioner cites this Court’s decision in Couch v. Booker, 632 F.3d 241 (6th Cir. 2011), for
the proposition that the failure to read key evidence can constitute deficient performance. In
Couch, the defendant was charged with second-degree murder arising out of a fight with the
decedent, and the key issue at trial was whether the decedent died directly from the defendant’s
blows or from other factors, including his recent ingestion of a large amount of cocaine. Id. at
246. The prosecution argued that it was the former and introduced testimony that the cause of
1
Medline is a database for medical researchers similar to Westlaw for attorneys.
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death was “asphyxia from inhaled blood that resulted from blunt-force injury to the face.” Id. at
243. The problem for the prosecution was that a report from the fire department called into
question the prosecution’s “drowned in his own blood” theory. Id. at 246. Luckily for the
prosecution, trial counsel did not read that report. The Court ultimately held that it was ineffective
assistance for counsel not to have read the report. Id. at 246–47. Petitioner in this case argues that
“[t]he ineffective assistance in Couch was nearly identical to trial counsel’s here.” (Brief for
Petitioner at 21.)
But Couch presented a situation fundamentally different from the case at hand. In Couch,
the defendant “not only told [his counsel] to pursue the [alternative causation] defense but also
told him how to do so: by obtaining the fire department report about the incident.” Couch,
632 F.3d at 246. Nonetheless, counsel still failed to do so. Further, the Couch court noted, “That
the report was readily accessible makes [trial counsel]’s reluctance to ask for it all the more
inexcusable and all the more removed from a ‘reasonable professional judgment[].’” Id. (alteration
in Couch).
This case is very different from the egregious situation in Couch. Petitioner in this case
has identified no evidence supporting his claim that trial counsel did not read the articles.
Petitioner instead argues that it is “clear” that trial counsel did not read them because “had trial
counsel read the articles, he would have immediately recognized that the articles did not say
anything like what Dr. McKeever said they did.” (Brief for Petitioner at 25 (emphasis in original).)
Then, trial counsel “would have immediately recognized that he had in his hands information that
would eviscerate the prosecution’s key expert witness on the key issue at trial. And he would have
used the articles to exclude Dr. McKeever’s testimony altogether or to completely discredit him
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on cross-examination.” (Id. at 25–26.) Because “[t]rial counsel did none of this,” Petitioner
concludes, “the record is inescapably clear that he did not actually read the articles.” (Id. at 26.)
At the Ginther hearing, trial counsel for the defense was asked whether he recalled making
“any sort of analysis” to determine whether the articles supported the Dr. McKeever’s 90-minute-
survival conclusion. (R. 13-4, Ginther Hearing Tr., PageID # 4033.) He responded as follows:
I don’t know. I’m not sure. I don’t have any memory that I did and I don’t have
any memory that I didn’t. I don’t know. I had a sheet of abstracts that was pretty
long and in cases where the abstract looked like it was promising, we got some of
the abstracts and I had them – I believe I had them in the courtroom. I think [Dr.]
Schmidt may have had some of his own. I don’t know. I’m not sure I can tell you
the answer to that.
(Id. at PageID # 4033–34.) Petitioner calls Mr. McGuire’s testimony “hedging.” (Brief for
Petitioner at 26). This so-called “hedging” might indicate that McGuire, in fact, did not read the
articles; or it might simply indicate that the trial occurred six years before the Ginther hearing and
Mr. McGuire had understandable difficulty recalling the details of the case. Indeed, it is worth
noting that when Mr. McGuire was asked whether he recalled Dr. McKeever’s testimony that the
victim survived for at least 90 minutes—the very testimony that Petitioner now says was the
linchpin of the prosecution’s case—he could only reply, “I think I do.” (R. 13-4, Ginther Hearing
Tr., PageID # 4032.) We decline to read too much into Mr. McGuire’s inability to recall whether
he read the articles in question.
Further, Petitioner’s claim that the articles provide no support for Dr. McKeever’s
testimony simply overstates the record. Petitioner points to a hypothetical question posed by his
post-conviction counsel that he claims would have “devastated Dr. McKeever.” (Brief for
Petitioner at 24–25 (emphasis in original).) That question asks Dr. McKeever to identify “any
sentence in [the articles] that even arguably supports that conclusion.” (Id. at 25 (citing R. 13-10,
Ginther Tr., PageID # 4482).) Petitioner asserts, “That one simple question would have left Dr.
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McKeever fumbling through the articles, unable to identify even a single sentence supporting his
testimony, and finally forced to admit that there was no support, that it was junk science through
and through.” (Id.) Thus, Petitioner argues that it is clear that counsel did not read the articles
because, had he done so, “he would have immediately recognized that the articles did not say
anything like what Dr. McKeever said they did.” (Id. (emphasis in original).) But this is
questionable. Indeed, the “Ogata Study,” one of the studies on which Dr. McKeever relied,
concludes as follows:
In animal experiments, however, Lewis et al. reported that [amyloid precursor
protein] could detect injured axons in sheep as early as 1 h after injury, but this is
not comparable to the human experience. While our preliminary studies have
indicated that NSE staining detected injured axons in 2 cases with 0.5 and 1 h of
survival, critical examination and exclusion of inadequate cases showed that a 1.5 h
survival period is the limitation of NSE and APP immunostaining.
(R. 20-11, Ogata Study, PageID # 6016 (emphasis added).)2 The import of this passage is that the
limit of immunohistochemical staining is one and a half hours of survival time; axonal injury
cannot be detected before then. Although this study referred to NSE staining and Dr. McKeever
testified that he based his results on NF staining, it is not at all obvious to the uninitiated that the
results as to one do not have implications for the other. Moreover, Mr. McGuire stated that he
thought that highlighting the distinction between NF and NSE was irrelevant in this case because,
although Dr. McKeever appeared at trial to rely on NF staining, he had relied upon NSE staining
during his depositions. Mr. McGuire explained at the Ginther hearing that he did not cross-
examine Dr. McKeever on this apparent contradiction because he believed that Dr. McKeever’s
failure to mention NSE was an oversight and McGuire did not believe that examining this
2
At the Ginther hearing, a medical expert for the defense, Dr. Colin Smith, testified that the Ogata study only
supported a finding that if you have a survival time of 90 minutes, you can detect axonal injury, not that if you detect
axonal injury, you can infer a survival time of 90 minutes. Nonetheless, we are reluctant to say that defense counsel
was constitutionally deficient for taking a medical journal at its word rather than interpreting the results as a diagnostic
neuropathologist would.
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contradiction was essential to the defense. As he said, “I didn’t point out the difference because I
didn’t think it made any difference if we showed that he had no support for NF – neurofilament
staining because they did have support for NSE staining. So I didn’t think we gained any ground.”
(R. 13-4, Ginther Tr., PageID # 4031.) In short, the record does not show a flagrant gap that went
somehow unexamined by defense counsel.
What the record does show is that trial counsel undertook significant preparation to address
and rebut Dr. McKeever’s testimony:
I spent a lot of time on my own computer doing Medline searches on these issues,
and I met with [Dr.] Carl Smith and he also did – Carl Schmidt, I’m sorry. He also
did Medline searches. And together we made an effort to find as much information
as we could about all of these issues.
(Id. at PageID # 4033.) Also, prior to trial, Mr. McGuire reviewed the autopsy findings, met with
the prosecution’s experts, Doctors Cohle and Dragovic, multiple times, and he amassed
“a collection of . . . maybe nine or ten major references on neurology and neuropathology and
traumatic neuropathology,” and discussed the medical issues with his own expert, Dr. Schmidt.
(Id. at PageID # 4040, 4050).
But Mr. McGuire did not just collect this information, he used it with great effect. His
cross-examination of Dr. McKeever demonstrated a strong grasp of the material. He walked
McKeever through his medical testing procedures and got him to admit that he was unable to pin
down a specific time of death. He referred Dr. McKeever to a study that he had not seen, which
cast serious doubt on his 90-minute timeline. Then, according to Mr. McGuire’s Ginther hearing
testimony, he and his fellow counsel, Mr. Harrison, decided to ask no additional questions of the
witness because they had “probed around the margins,” “scored some points,” and thought that
was “about as good as [they] were going to be able to do with him.” (R. 13-4, Ginther Hearing
Tr., PageID # 4032–33.) At that point, counsel decided to rely on their own expert, Dr. Schmidt,
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to undercut McKeever’s testimony. And Mr. McGuire explained the strategy behind the decision
not to press Dr. McKeever and rely on his own witness as follows:
A. Well, I’m arguing with the witness about hours between injury and death,
whereas, my own witness said that [immunohistochemical staining]
shouldn’t be used at all because it wasn’t reliable – not a reliable test. Do I
want to get into an argument with my opponent’s witness or do I want to
use my own witness to make the point? That’s my dilemma.
Q. Couldn’t you have done both?
A. I don’t know. If I get into an argument that I lose I’m not sure it’s a good
idea.
(R. 13-4, Ginther Hearing Tr., PageID # 4040.) He explained that further cross-examining
Dr. McKeever carried a great degree of risk:
I’m arguing with a guy who is a university professor with a lot of credentials and
there are always risks when you do that. If I had nothing else to talk about I might
agree with you. Or if the witness handed me some entre [sic] into that issue I would
likely agree with you, also. But if I had some other evidence in my bag that I
thought was reliable evidence, good evidence [namely, Dr. Schmidt’s testimony],
I might not do it.
(Id.)
In the end, rather than debating cutting-edge medical science with a scientist, trial counsel
decided to take what they believed to be the safer route: they put forth their own expert, the chief
medical examiner of the Wayne County Medical Examiner’s Office, Dr. Carl Schmidt, to rebut
McKeever’s testimony. Trial counsel selected Dr. Schmidt not just because of his credentials, but
because he was a “competent guy” and a “straight shooter,” who they thought would play well to
a rural jury. (Id. at PageID # 4055.)
The trial court’s oral opinion recognized the manifold judgment calls a defense attorney
must make and found McGuire’s judgment calls reasonable and not prejudicial:
[W]hat does Mr. McGuire say in his testimony? He says what all of us who dwell
in courtrooms during trials for hours and hours know, there comes a point when
you want to leave the other side’s expert alone. You’ve got your own expert. You
want to put in your testimony through your expert . . . . He thought he made some
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No. 17-2045
points around the margins with Dr. McKeever and he didn’t want to – he didn’t
want to lose the jury, try the jury’s patience . . . he consulted with Mr. Harrison,
an attorney with great trial experience, and they said to leave off that witness.
***
There are many reasons not to push a cross-examination too far I would observe
and that, in the opinion of this Court, is classic trial strategy.
(R. 13-10, Ginther Hearing Tr., PageID # 4498, 4500.)
Trial counsel’s strategy ultimately failed. But there is nothing in the record to suggest
that their handling of Dr. McKeever’s testimony was inadequate or unreasonable. Petitioner faults
his trial counsel for failing to press Dr. McKeever on how the particular articles he relied on failed
to support his testimony. But Mr. McGuire instead sought to use Dr. Schmidt to undermine the
entire enterprise of using immunohistochemical staining to infer survival time. The Supreme
Court has recognized that there “are countless ways to provide effective assistance in any given
case” and “[e]ven the best criminal defense attorneys would not defend a particular client in the
same way.” Strickland, 466 U.S. at 689. Petitioner’s current counsel may not have done the same
thing that McGuire did, but McGuire’s decision was clearly strategic. We therefore cannot say
that defense counsel’s handling of Dr. McKeever’s testimony was constitutionally deficient. More
to the point, we cannot say that there is no “reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington, 562 U.S. at 105. Thus, the state court’s opinion is entitled to
AEDPA deference and should not be disturbed.
2. Strickland’s “Prejudice Prong”
Even assuming that Petitioner’s counsel was deficient in its handling of Dr. McKeever, the
petition should be denied. The record plainly supports a finding that even without Dr. McKeever’s
testimony, Petitioner could not show “a reasonable probability that . . . the result of [the trial]
would have been different.” English v. Romanowski, 602 F.3d 714, 726 (6th Cir. 2010) (quoting
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No. 17-2045
Strickland, 466 U.S. at 694) (alteration in English). Petitioner characterizes Dr. McKeever’s
testimony as the sine qua non of the prosecution’s case, but Petitioner fails to take into account the
strength of the prosecution’s other evidence that would have supported the same outcome. Indeed,
the prosecution introduced substantial other evidence of Petitioner’s guilt. The Michigan Court of
Appeals summarized that evidence as follows:
As an initial matter, both Dr. Cohle and Dr. Dragovic concluded that the manner of
death in this case was homicide. Both doctors excluded the possibility of accidental
death because neither believed that the victim’s body could have gotten into the
water of Lower Herring Lake absent the purposeful actions of a second person.
There was also substantial evidence to suggest that defendant had a motive to kill
the victim. Although motive is not an essential element of the crime, evidence of
motive in a prosecution for murder is always relevant. . . . In cases in which the
proofs are circumstantial, evidence of motive is particularly relevant. . . . The victim
had filed for divorce. Only days before her death, the victim had served defendant’s
divorce attorney with interrogatories asking probing questions about defendant’s
addictions and possible misuse of marital assets. Although the evidence showed
that the victim was committed to ending the marriage, the proofs established that
defendant was strongly opposed to the idea of divorce. The proofs also showed that
defendant had threatened to take sole custody of the children and to take the marital
home in the event that the victim further pursued the divorce. . . . There was also
evidence of substantial life insurance policies on the victim’s life. . . .
Defendant also had the opportunity to kill the victim. Evidence of opportunity is
logically relevant in a prosecution for murder. . . . The evidence presented at trial
established that defendant and the victim were alone on the boathouse deck on the
night of the victim’s death. Even defendant, himself, admitted to the police that he
was probably the last person to see the victim alive.
There was also evidence that a scuffle or struggle may have taken place on the
boathouse deck within a short time before the victim’s death. The proofs established
that the railing surrounding the boathouse deck had been damaged sometime on the
day of the victim’s death. Linn Duncan had been on the deck the day before the
victim’s death, and the railing had not been broken at that time. However, the railing
was damaged and broken at the time the victim’s body was discovered. It is possible
that the damage could have resulted from the victim’s accidentally falling or
tripping over the railing. However, taken together with the white paint smear on
defendant’s shoe, which matched the chemical composition of the paint on the
railing, it is equally likely that the damage to the railing was evidence of a struggle
on the deck between defendant and the victim. Moreover, there was evidence that
the victim sustained internal abdominal injuries before her death. Both Dr. Cohle
and Dr. Dragovic testified that the internal abdominal injuries were more likely
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No. 17-2045
caused by impact with a blunt, protruding object, such as a fist or a foot, than by
the victim’s impact with the concrete pavement.
Certain evidence in this case also tended to establish defendant’s consciousness of
guilt. Defendant made numerous statements to many different friends and
acquaintances in the days following the victim’s death. Certain of these statements
were inconsistent, and could certainly have been interpreted by reasonable jurors
as evidence of intentional prevarication. Of note, although the evidence at trial
clearly established that Linn Duncan found the blue blanket on the concrete
pavement at the time he discovered the victim’s body, defendant told at least one
person in the days following the victim’s death that he had personally retrieved the
blanket after Duncan had already found the body in order to “keep [the victim]
warm.” In addition, defendant told the police and most of his friends that when he
returned from putting the children to bed, the victim was no longer on the deck.
However, defendant told the victim’s hairdresser that upon putting the children to
bed, he had returned to the deck and the victim was there. According to the
hairdresser, defendant told her that “[Florence] was still there, she was fine, so I
just went back up to the house. And she never came home.” “[C]onflicting
statements tend to show a consciousness of guilt and are admissible as admissions.”
. . . Although not necessarily inculpatory when taken by themselves, these
conflicting statements, when considered together with the other circumstantial
proofs in this case, lend further evidence from which a rational jury could have
inferred defendant’s guilt.
There was also evidence that defendant had already packed his vehicle and was
eager to leave Watervale with his two children when the police arrived. “[E]vidence
of flight is admissible to support an inference of ‘consciousness of guilt’ and the
term ‘flight’ includes such actions as fleeing the scene of the crime.” . . . We
acknowledge that defendant did not actually flee the scene. We further
acknowledge that it is always for the jury to determine whether evidence of flight
occurred under such circumstances as to indicate guilt. . . . However, the evidence
that defendant was preparing to leave and had already packed his family’s
belongings into the vehicle when the victim’s body had not even been removed
from the lake could have allowed reasonable jurors to infer that defendant had a
guilty state of mind.
A rational jury could have also inferred defendant’s consciousness of guilt from
evidence that defendant wished to have the victim’s body immediately cremated.
Defendant’s desire to have the body cremated could be viewed as an effort to
destroy evidence of the crime of murder, thereby showing a consciousness of guilt.
...
Defendant’s own statements concerning the events leading up to the victim’s death
provided additional evidence from which the jury could have inferred a
consciousness of guilt. Defendant told the police and several family friends that on
the evening of October 24, 2003, he had left the victim alone on the boathouse deck
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No. 17-2045
when he went to check on the two children. However, substantial testimony at trial
revealed that the victim had a lifelong fear of the dark and that she routinely avoided
being alone outdoors at night. It is beyond dispute that it was already dark when
defendant left the boathouse deck, and certain evidence suggested that it was also
raining at the time. . . . Given the victim’s lifelong fear of the dark and her routine
avoidance of the outdoors at night, a rational jury could have concluded that the
victim would not have voluntarily stayed on the boathouse deck alone after dark
and that defendant had therefore fabricated his account of the events leading up to
the victim’s death. A jury may infer consciousness of guilt from evidence of lying
or deception. . . .
We acknowledge that the proofs established an absence of past physical violence
between defendant and the victim. However, the mere absence of past violence is
necessarily of limited value and relevance.
We also acknowledge that Dr. Carl Schmidt and Dr. Igor Paul both opined that the
victim likely fell from the deck accidentally. Indeed, Dr. Paul’s computer graphics
demonstrated to the jury how an accidental fall could have occurred if the victim
lost her balance. However, Dr. Paul admitted that he could not rule out the
possibility that the victim’s fall was caused by the criminal agency of another
person. Moreover, the absence of “palms-down” injuries on the victim’s body
provided evidence from which a rational jury could have concluded that the victim
was already unconscious or otherwise incapacitated when she struck the concrete
pavement. Although there were some wounds on the victim’s hands and arms, Dr.
Cohle testified that he did not believe the injuries were sustained as the result of a
“palms-down position.” In other words, Dr. Cohle did not believe that the hand and
arm injuries were consistent with an attempt by the victim to brace herself upon
impact with the concrete. Dr. Cohle’s testimony in this regard suggested the
possibility that the victim’s fall from the deck was not accidental. In the end,
questions concerning the credibility of Drs. Schmidt and Paul and the weight to be
accorded to their testimony were solely for the jury to determine. . . .
Unger, 749 N.W.2d at 286–89 (citations omitted).
The jury’s verdict indicates that they credited the prosecution’s evidence, including other
strong, independent evidence that the victim was dragged into the lake. Further, Petitioner
overstates the role that the 90-minutes-survival-time testimony played in closing arguments; in
actuality, it was but one piece of evidence among many that the prosecution discussed in nearly
four hours of closing argument.
In sum, we conclude that the record does not support Petitioner’s argument that the
performance of his trial counsel was constitutionally deficient. Further, Petitioner has failed to
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No. 17-2045
show a reasonable probability that if counsel had performed differently “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
II. Prosecutorial Misconduct
Standard of Review
As explained above, on appeal of a denial or grant of a petition for a writ of habeas corpus,
this Court review’s the district court’s conclusions of law de novo, Gumm, 775 F.3d at 359–60
(citing Hanna, 694 F.3d at 605), and when the district court’s findings of fact are, as here, based
on a transcript from the petitioner’s state court trial, we review those findings of fact de novo as
well. Tanner, 867 F.3d at 671.
To succeed on his habeas claim based on the ineffective assistance of counsel, Petitioner
must satisfy an extraordinarily high bar. Again, “[w]hen § 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, 562 U.S. at 105.
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S at 686. Under Strickland’s two-prong
framework, Petitioner first must demonstrate that “counsel’s representation was deficient in that it
‘fell below an objective standard of reasonableness.’” Towns, 395 F.3d at 258 (quoting Strickland,
466 U.S. at 688). Then Petitioner must show “prejudice,” i.e., “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.
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No. 17-2045
Analysis
Petitioner next argues that this Court should grant a writ of habeas corpus for what he
alleges was the state court’s “unreasonable rejection of Mr. Unger’s claim that trial counsel was
ineffective for failing to object to prosecutorial misconduct at closing.” (Brief for Petitioner at
45.) A defense counsel’s failure to object to prosecutorial misconduct can amount to
ineffective assistance of counsel. See Hodge v. Hurley, 426 F.3d 368, 377 (6th Cir. 2005). But
“[a] petitioner’s ineffective assistance claim based on counsel’s failure to object will not succeed
if the decision not to object flowed from objectively reasonable trial strategy.” Walker v. Morrow,
458 F. App’x 475, 487 (6th Cir. 2012) (citing Hodge, 426 F.3d at 385–86).
The district court identified the following comments challenged by Petitioner. Those
comments are again referenced in Petitioner’s opening brief on appeal. In brief, those comments
include:
• Regarding the testimony of Dr. Igor Paul (who constructed a video animation
purportedly depicting how the victim could have moved from the location where she
struck the pavement into the water), the prosecutor suggested that defense counsel
had paid him to deliberately lie and imagined a conversation between defense counsel
and Dr. Paul: “Hey, we got a problem, we need you to come up with a scenario that
shows this could have been an accident.” (R. 10-19, Trial Tr., PageID # 2799.)
• Also regarding Dr. Paul: “[H]e did what he was paid to do. ‘Doctor you’ve helped
me before, help me again. I need an accident scenario. And I need somebody from
MIT to come in with their credentials and fool this jury.” (R. 10-19, Trial Tr., PageID
# 3810.)
• Estimating that Dr. Paul was likely paid $25,000 for his preparation and testimony,
and musing: “Reasonable doubt at reasonable prices?” (Id. at PageID # 3805.)
• Claiming that defense counsel had “re-victimized” Florence Unger “[b]y painting
[her] as some shopping-crazed adulteress” in the hope that the jury would “lose sight
of the fact that a human life was senselessly snuffed out.” (R. 10-18, Trial Tr., PageID
# 3568.)
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No. 17-2045
• Multiple comments indicating that defense counsel was trying to “fool” the jury by
asking “deliberately loaded” questions “meant to deter [the jury] from seeing what
the real issues are in this case,” and referring to defense counsel’s use of “smoke and
mirrors” and “red herrings” to deflect attention away from Petitioner. (Id. at 3568,
3615, 3625–26.)
• The prosecutor’s inaccurate statement that Dr. Cohle, the medical examiner, never
stated that his confidence in his conclusion that the victim’s death was due to
homicide was only “51[%], or thereabouts.”
Unger, 2017 WL 3314289, at *14–15; (Brief for Petitioner at 45–48).
In adjudicating this claim as part of Petitioner’s direct appeal, the Michigan Court of
Appeals held that some of these comments “clearly exceeded the bounds of proper argument.”
Unger, 749 N.W.2d at 294. Regarding the prosecution’s comments about Dr. Paul, the court said
that “[a]rguing that an expert witness had a financial motive to testify is one thing; arguing that
the expert has intentionally misled the jury is quite another.” Id. at 295. The court also held that
the “re-victimized” statement “exceeded the bounds of proper argument” and was “improper,”
since it is well-established under both federal and Michigan law that a prosecutor may not appeal
to the jury to sympathize with the victim. Id. at 293. Also, the attacks on defense counsel
“certainly suggested that defense counsel was trying to distract the jury from the truth” and thus
“clearly exceed[ed] the bounds of proper argument.” Id. at 294. Finally, the court also held that
the prosecutor’s statement regarding Dr. Cohle was “clearly wrong” and not supported by the
record.” Id.
Nonetheless, the court held that it was not deficient performance for Petitioner’s counsel
to allow the alleged prosecutorial improprieties. Id. at 295–96. The court explained as follows:
[D]efendant was represented by capable defense counsel throughout the
proceedings below. As an experienced attorney, lead defense counsel was certainly
aware that there are times when it is better not to object and draw attention to an
improper comment. . . . Furthermore, declining to raise objections, especially
during closing arguments, can often be consistent with sound trial strategy. . . . We
will not substitute our judgment for that of counsel on matters of trial strategy, nor
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No. 17-2045
will we use the benefit of hindsight when assessing counsel’s competence. . . .
Defendant has simply failed to overcome the strong presumption that trial counsel’s
performance was strategic. . . . Nor can we conclude that, but for counsel’s alleged
errors, the result of defendant’s trial would have been different. . . . We find no
ineffective assistance of counsel in this regard.
Id. at 296 (internal quotation marks and citations omitted).
Reviewing Unger’s habeas petition, the district court held that the Michigan Court of
Appeals’ decision with regard to the performance prong was entitled to AEDPA deference and
Petitioner had “failed to show either that defense counsel’s performance fell outside the broad
range of reasonable trial conduct, or that the state court’s conclusion finding no deficient
performance was an unreasonable application of Supreme Court precedent.” Unger, 2017 WL
3314289, at *16. That should have ended the inquiry. However, the district court also recognized
that the Appeals court misapplied Strickland’s prejudice standard. Following Dyer v. Bowlen, 465
F.3d 280, 284 (6th Cir. 2006), the district court conducted a de novo review of the prejudice issue
and held that Petitioner’s claim still failed because he “fails to show he was prejudiced by counsel’s
failure to object.” Unger, 2017 WL 3314289, at *17. We agree.
The Michigan Court of Appeals concluded that trial counsel’s failure to object to the
alleged instances of prosecutorial misconduct did not constitute deficient performance. Here on
appeal, Petitioner contends that the Appeals court “failed to analyze whether defense counsel’s
failure to object was reasonable.” (Brief for Petitioner at 48–49.) “Instead,” Petitioner asserts,
“the court concluded that defense counsel’s decision could have been strategic, and that it was
therefore beyond reproach.” (Brief for Petitioner at 49 (emphasis in original).) But that is not an
accurate account of the court’s opinion. The court did not simply allow “strategy” to be used as a
“talisman that necessarily defeats a charge of constitutional ineffectiveness.” Cone v. Bell,
243 F.3d 961, 978 (6th Cir. 2001), rev’d on other grounds, 535 U.S. 685 (2002). It reviewed the
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No. 17-2045
reasonableness of counsel’s strategy and recognized that it was reasonable trial strategy for defense
counsel to allow the prosecutors’ arguments to proceed uninterrupted, lest the defense call
unnecessary attention to the remarks. Unger, 749 N.W.2d at 296 (citing People v. Bahoda, 531
N.W.2d 659, 672 n. 54 (Mich. 1995) (“[T]here are times when it is better not to object and draw
attention to an improper comment.”)); see United States v. Caver, 470 F.3d 220, 244 (6th Cir.
2006) (“[N]ot drawing attention to [a] statement may be perfectly sound from a tactical
standpoint.”)).
We recognize an additional reason for defense counsel to allow the prosecution’s
comments: namely, objecting would have jeopardized defense counsel’s ability to make the same
arguments in their own closing. Indeed, defense counsel’s closing argument is riddled with the
same kinds of arguments that Petitioner now attacks. For instance, defense counsel said of the
prosecution’s evidence “it’s just so, so unfair to deceive you that way,” (R. 10-19, Trial Tr., PageID
# 2773), and “real evidence, hard evidence, and this kind of manipulation of evidence, are two
different things.” (Id. at PageID # 2776 (emphasis added)). And defense counsel was no more
kind to the prosecution’s experts. Referring to Dr. Dragovic’s testimony, counsel said, “Don’t be
fooled with that kind of nonsense[.]” (R. 10-18, Trial Tr., PageID # 2765.) Or discussing Dr.
Dragovic’s “publicity-seeking injection of himself into notorious cases”:
You know about his civil practice. You know about his personality and his delight
in criticizing other pathologists, and his belief that he and only he knows the answer
to pathology questions. You saw his little trick. . . . It’s just a trick, a little game he
plays to try to downplay the testimony of somebody else.
(R. 10-19, Trial Tr., PageID # 2780.) And then of course there is defense counsel’s reference to
the “awesome power of the state”:
A state that at the drop of a hat can call up a Dragovic and say, “We need a little
help in this case, Doc, we’d like somebody to supply a little premeditation and
deliberation, so, you know, let’s form a caravan and let’s go up and let’s do some
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No. 17-2045
things, and let’s try to talk the real pathologist involved in the case into something
else – to say something else.”
(Id. at PageID # 2775.)
None of this is to say that defense counsel’s own misconduct somehow excuses the
prosecution’s. Rather, the point is that the record shows that defense counsel could have decided
to allow the prosecution’s improper remarks in exchange for getting in their own. This is one of a
number of reasons why Petitioner’s trial counsel could reasonably have chosen not to object to the
prosecutor’s statements, and Petitioner has offered no evidence (other than his own bald assertions)
to show that the failure to object was the result of accident, inattention, or mistaken judgment.
Thus, in light of the “high[] deferen[ce]” that this Court must give to counsel’s performance,
Strickland, 466 U.S. at 689, Petitioner has failed to show that defense counsel’s performance fell
outside the broad range of reasonable trial conduct or that the state court’s finding of no deficient
performance was an unreasonable application of Supreme Court precedent.
Finally, even assuming that Petitioner’s counsel was ineffective in failing to object to
prosecutorial misconduct, the petition should be denied because Petitioner has failed to show that
he was prejudiced by counsel’s failure to object. As the district court recognized, the Michigan
Court of Appeals misapplied the “prejudice” prong of Strickland. Unger, 2017 WL 3314289, at
*15. The Appeals court required Petitioner to show that “but for counsel’s alleged errors, the result
of defendant’s trial would have been different.” Unger, 749 N.W.2d at 243. That is not the
Strickland standard. Instead, Strickland asks only whether “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 (emphasis added).
Still, to establish prejudice, “[i]t is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding. . . . [A]nd not every error that
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No. 17-2045
conceivably could have influenced the outcome undermines the reliability of the result of the
proceeding.” Id. at 693. The prosecutor’s arguably improper comments played a relatively small
role in the nearly four hours of closing arguments, and they paved the way for defense counsel to
make similar arguments of their own. Further, as detailed above, the evidence of Petitioner’s guilt
was overwhelming. Therefore, any adverse effect to Petitioner’s case caused by the prosecution’s
comments was unlikely to affect the outcome of the trial. Accordingly, any shortcomings in trial
counsel’s performance likely did not affect it either.
CONCLUSION
For the foregoing reasons, the district court’s judgment is AFFIRMED.
27