Bradley v. Birkett

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0598n.06
Filed: August 21, 2006

No. 04-2552

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DAVID BRADLEY, )
)
Petitioner-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Eastern
THOMAS BIRKETT, Warden, ) District of Michigan
)
Respondent-Appellee. )

Before: BOGGS, Chief Judge; NORRIS and COOK, Circuit Judges.

PER CURIAM. David Bradley, a Michigan state prisoner, appeals the denial of his

petition for a writ of habeas corpus by the district court.

This case is before us for the second time. In Bradley v. Birkett, 156 F. App’x 771 (6th Cir.

2005) (per curiam), we vacated the certificate of appealability (“COA”) granted by the district court

and remanded to the district court so that, in determining whether and to what extent to grant a COA,

it would make an individualized assessment as to each of Bradley’s habeas claims. The district court

having done so, we now address Bradley’s petition on the merits. Finding all but one of Bradley’s

claims to be procedurally defaulted, and the one non-defaulted claim to be without merit, we

AFFIRM the district court’s denial of Bradley’s petition for a writ of habeas corpus.

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The evidence adduced at trial indicates the following. Bradley and Robbie Cootware were

inmates at the Dickinson County Jail in Michigan. Bradley and Cootware planned and successfully

executed an escape from the jail. On the night of March 8, 1998, Bradley lured a corrections officer,

Timothy Guiguere, into his cell under the pretense that there was a water leak. Cootware and

Bradley then beat Guiguere. Bradley, armed with a heavy steel soap dish that had been placed inside

a sock, and Cootware, armed with a broom, chased Giguere, who had managed to get out of the cell,

and rushed past corrections officer Vanessa Kuzak; Bradley threatened Kuzak and warned her to get

back. Because Cootware had earlier learned the code to an exit door, they were able to open the exit

door and escape through the garage.

After their escape, Bradley and Cootware proceeded to break into a number of trailers at

camping sites, from which they took various items, including guns, knives, alcohol, and clothing.

Police arrested Bradley and Cootware after chasing them from a trailer. Cootware testified that he

and Bradley had planned to rob a bank and then flee to Mexico.

Following a jury trial in Dickinson County Circuit Court, Bradley was convicted of twelve

felonies: escape from jail; conspiracy to escape from jail; assault with intent to commit great bodily

harm; conspiracy to commit assault great bodily harm; four counts of breaking and entering; two

counts of inducing a minor to commit a felony; conspiracy to commit bank robbery; and assaulting

a prison employee.

Bradley appealed his convictions. The Michigan Court of Appeals vacated his conviction

for escape from jail through violence (which the judgment had listed as assault, i.e., against a prison

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employee) and affirmed the other convictions and sentences. The Michigan Supreme Court denied

his delayed application for leave to appeal.

Bradley then filed a motion for relief from judgment in the Dickinson County Circuit Court

in 2002. In that motion he asserted for the first time all but one of the federal constitutional claims

at issue here, arguing that ineffective assistance of appellate counsel established good cause for

failure to raise the issues in the appeal of right.1 The trial court denied the motion, stating that “trial

error, if any, was harmless error that did not result in a miscarriage of justice; and the Court further

finds that the defendant has not established good cause for the claim that these errors were not raised

as issues in the appeal of right.”

In one-sentence orders, the Michigan Court of Appeals and subsequently the Michigan

Supreme Court denied Bradley leave to appeal on the grounds that he had failed to meet the burden

of establishing entitlement to relief under Michigan Court Rule 6.508 and 6.508(D), respectively.

Michigan Court Rule 6.508(D) broadly pertains to motions for relief from judgment. Abela v.

Martin, 380 F.3d 915, 922 (6th Cir. 2004). It states that the “defendant has the burden of

establishing entitlement to the relief requested,” M.C.R. 6.508(D), and provides, inter alia, that a

court

may not grant relief to the defendant if the motion . . . alleges grounds for relief,
other than jurisdictional defects, which could have been raised on appeal from the
conviction and sentence or in a prior motion under this subchapter, unless the
defendant demonstrates (a) good cause for failure to raise such grounds on appeal or

1
In the motion for relief from judgment Bradley did not bring the insufficiency-of-the-
evidence claim, which had previously been raised in the direct appeal.

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in the prior motion, and (b) actual prejudice from the alleged irregularities that
support the claim for relief. . . .

M.C.R. 6.508(D)(3). This court has previously referred to Michigan Court Rule 6.508(D) as “the

state analog to federal exhaustion.” Gonzales v. Elo, 233 F.3d 348, 353 (6th Cir. 2000).

In 2003, Bradley filed a habeas corpus petition in the district court pursuant to 28 U.S.C. §

2254. The district court denied Bradley’s petition for a writ of habeas corpus, finding all but one

of his claims to be procedurally defaulted and the remaining claim, alleging insufficiency of

evidence with respect to three counts, to be without merit.

II

In a habeas corpus proceeding, we review the district court’s legal conclusions de novo and

its factual findings for clear error. We review de novo the district court’s procedural default rulings.

We also review de novo the district court’s determinations regarding a claim of ineffective

assistance of counsel, which is a mixed question of law and fact. Lott v. Coyle, 261 F.3d 594, 606

(6th Cir. 2001).

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies to this case because

Bradley filed his habeas petition after 1996. See Gillard v. Mitchell, 445 F.3d 883, 889 (6th Cir.

2006). Under AEDPA, we may not grant Bradley relief with respect to any claim that the state

courts have decided on the merits unless the state court’s adjudication of the claim “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 “resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented in the State

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court proceeding.” 28 U.S.C. §§ 2254(d)(1) & (2). See Tinsley v. Million, 399 F.3d 796, 801-02

(6th Cir. 2005); Abela v. Martin, 380 F.3d 915, 924-25 (6th Cir. 2004).

Bradley acknowledges that only one of the federal constitutional issues he presents here,

regarding sufficiency of evidence, was preserved for habeas review; the others were not preserved

by trial or appellate counsel and were raised for the first time in the motion for relief from judgment.

As stated above, the state trial court denied that motion on procedural grounds in language taken

almost verbatim from Michigan Court Rule 6.508(D)(3); the Michigan Court of Appeals and the

Michigan Supreme Court denied Bradley leave to appeal under Rule 6.508 and 6.508(D),

respectively.

A federal habeas court may not review claims that a state court has declined to address due

to petitioner’s noncompliance with a state procedural requirement. Howard v. Bouchard, 405 F.3d

459, 475 (6th Cir. 2005) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). “Under the

procedural default doctrine, [a] federal court is generally barred from considering an issue of federal

law arising from the judgment of a state court if the state judgment rests on a state-law ground that

is both independent of the merits of the federal claim and an adequate basis for the [state] court’s

decision.” Munson v. Kapture, 384 F.3d 310, 313-14 (6th Cir. 2004) (internal quotation marks

omitted) (quoting Clinkscale v. Carter, 375 F.3d 430, 435 (6th Cir. 2004)). As this court has

recently noted, “[i]t is well-established in this circuit that the procedural bar set forth in Rule

6.508(D) constitutes an adequate and independent ground on which the Michigan Supreme Court

may rely in foreclosing review of federal claims.” Howard, 405 F.3d at 477 (citing Simpson v.

Jones, 238 F.3d 399, 407-08 (6th Cir. 2000), and Munson, 384 F.3d at 315). As such, and because

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the other parts of the test set forth by this court in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.

1986), for determining whether a habeas claim has been procedurally defaulted by petitioner’s

failure to observe a state procedural rule are also met–the state procedural rule is applicable to

Bradley’s claims, Bradley failed to comply with it, and it was actually enforced–his claims are

procedurally defaulted. See Howard, 405 F.3d at 477-79; Munson, 384 F.3d at 313-15; Willis v.

Smith, 351 F.3d 741, 744-45 (6th Cir. 2003).

A procedural default may be excused if Bradley demonstrates cause for the default and

prejudice resulting from the default. Burton v. Renico, 391 F.3d 764, 773 (6th Cir. 2004); Willis,

351 F.3d at 745; Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000). “It is well-settled that when

a state prisoner has ‘defaulted his federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the claims is barred’ unless the petitioner

can show cause for the default and prejudice because of it, or a fundamental miscarriage of justice.”

Abela, 380 F.3d at 921 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Bradley argues

that ineffective assistance of appellate counsel excuses his procedural default.

Deficient performance by counsel may constitute cause for procedural default if it is

constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Howard, 405 F.3d

at 478; Munson, 384 F.3d at 316; Willis, 351 F.3d at 745. To establish ineffective assistance under

Strickland, Bradley must show both that his lawyer’s performance was deficient and that the

deficiency prejudiced the defense. See Tinsley, 399 F.3d at 802. That is, Bradley “must prove both

that his counsel’s representation ‘fell below an objective standard of reasonableness,’ and ‘that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

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would have been different.’” Munson, 384 F.3d at 316 (quoting Strickland, 466 U.S. at 688, 694)

(internal citations omitted). “Counsel’s failure to raise an issue on appeal is ineffective assistance

only if there is a reasonable probability that inclusion of the issue would have changed the result of

the appeal.” Howard, 405 F.3d at 485 (citing Greer v. Mitchell, 264 F.3d 663 (6th Cir. 2001)). This

court has identified eleven factors to consider when evaluating a claim of ineffective assistance of

counsel:

(1) Were the omitted issues ‘significant and obvious’?
(2) Was there arguably contrary authority on the omitted issues?
(3) Were the omitted issues clearly stronger than those presented?
(4) Were the omitted issues objected to at trial?
(5) Were the trial court’s rulings subject to deference on appeal?
(6) Did appellate counsel testify in a collateral proceeding as to his appeal strategy
and, if so, were the justifications reasonable?
(7) What was the appellate counsel’s level of experience and expertise?
(8) Did the petitioner and appellate counsel meet and go over possible issues?
(9) Is there evidence that counsel reviewed all the facts?
(10) Were the omitted issues dealt with in other assignments of error?
(11) Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?

Burton, 391 F.3d at 774.

This court “ha[s] held that ‘appellate counsel cannot be ineffective for a failure to raise an

issue that lacks merit.’” Willis, 351 F.3d at 745 (quoting Greer, 264 F.3d at 676). In determining

whether Bradley’s appellate counsel rendered ineffective assistance of counsel, and thus whether

cause exists to excuse Bradley’s procedural default, we “consider the merits of th[ose] claim[s].”

Ibid. See also Fisher v. Smith, 126 F. App’x 275, 280-83 (6th Cir. 2005).

III

A.

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Bradley argues that the prosecutor committed misconduct amounting to a due process

violation when he elicited testimony from three witnesses, including Robbie Cootware, regarding

their plea-based convictions stemming from the events underlying the charges against Bradley, and

then reiterated Cootware’s plea-based convictions during closing argument. Bradley argues that the

prejudice caused by the prosecutor’s alleged misconduct was “exacerbated” by what Bradley calls

an improper limiting instruction from the judge. The trial judge gave the following instruction:

You have heard testimony that Robbie Cootware, Julie Tomasi, and Derrick Dixon
made an agreement with the Prosecutor about charges against them in exchange for
their testimony in this trial. You’re to consider that evidence only as it relates to
their credibility or believability and as it tends to show their bias or self-interest.

Defense counsel did not question the witnesses about the guilty pleas. However, defense

counsel did refer to Cootware’s guilty pleas during closing argument, and suggested that Cootware’s

motivation to plead guilty may have been a desire to reduce his sentence.

In order to determine whether Bradley’s appellate counsel was constitutionally ineffective

in failing to raise this issue on direct appeal–so as to excuse Bradley’s procedural default of it–we

inquire whether the prosecutorial-misconduct issue was meritorious. “To be cognizable” on habeas

review, prosecutorial misconduct “must have ‘so infected the trial with unfairness as to make the

resulting conviction a denial of due process.’” Gillard, 445 F.3d at 897 (quoting Darden v.

Wainwright, 477 U.S. 168, 181 (1986), which in turn quotes Donnelly v. DeCristoforo, 416 U.S.

637, 643 (1974)). “[F]our factors are considered in determining whether the impropriety is flagrant:

(1) the likelihood that the remarks would mislead the jury or prejudice the accused, (2) whether the

remarks were isolated or extensive, (3) whether the remarks were deliberately or accidentally

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presented to the jury, and (4) whether other evidence against the defendant was substantial.”

Gillard, 445 F.3d at 897. (internal quotation marks and citation omitted).

The guilty plea or conviction of a co-defendant is generally inadmissible at trial, and is not

admissible as substantive evidence of the defendant’s guilt, but “may be introduced into evidence

if the co-conspirator or co-defendant testifies at trial, so that the factfinder will have appropriate

facts on hand to assess the witness’s credibility.” United States v. Sanders, 95 F.3d 449, 454 (6th

Cir. 1996) (citing United States v. Blandford, 33 F.3d 685, 709 (6th Cir. 1994)). In United States

v. Christian, 786 F.2d 203 (6th Cir. 1986), this court quoted from United States v. Halbert, 640 F.2d

1000, 1005 (9th Cir. 1981):

[w]hen the prosecution examines the codefendant as its witness in support of its case-
in-chief, a question about the guilty plea is legitimate as the purpose is to support the
reasonableness of the witness’ claim to first-hand knowledge because of admitted
participation in the very conduct which is relevant. The fact a witness has formally
admitted personal responsibility enhances the circumstances adding up to that
witness’ believability.
The prosecutor may also wish to place the plea before the jury so as to blunt
defense efforts at impeachment and dispel the suggestion that the government or its
witness has something to hide.

In Halbert, the Ninth Circuit noted that a prosecutor may not, for example, suggest in closing

argument that the jury use the plea for an improper purpose, clearly offer the plea as substantive

evidence of guilt, or disproportionately emphasize or repeat the subject. Halbert, 640 F.2d at 1005.

This court has stated that “[w]hen a guilty plea or conviction is introduced into evidence, the

district court is required to give a cautionary instruction to the effect that the jury may use the

conviction or guilty plea only to determine the testifying witness’s credibility.” Sanders, 95 F.3d

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at 454 (citing Blandford, 33 F.3d at 709). See also United States v. Modena, 302 F.3d 626, 631 (6th

Cir. 2002). The trial court’s instruction, as quoted above, was adequate in that regard.

As stated above, it is not improper for a prosecutor to introduce evidence of a testifying

coconspirator’s or codefendant’s guilty plea in order for the jury to assess fully the credibility of the

witness. We agree with the district court that the prosecution’s elicitation of such evidence in this

case did not amount to misconduct. The district court suggested that the prosecutor’s reference to

Cootware’s plea-based convictions in closing argument may have been improper, however, given

that Bradley did not cross-examine the witnesses about their pleas. Yet the district court found that,

if such impropriety did occur, it was not so egregious as to deny Bradley a fair trial. We agree.

Even if the prosecutor’s comments during closing argument reiterating Cootware’s guilty pleas were

improper, they did not “so infect[] the trial with unfairness as to make the resulting conviction a

denial of due process.” See Gillard, 445 F.3d at 897. It is highly unlikely, especially in light of the

trial court’s limiting instruction, that the prosecutor’s restatement of Cootware’s guilty plea during

closing argument would mislead the jury or prejudice the accused. While the remarks were

deliberate, and restated evidence that the prosecution had already elicited, they did not unduly dwell

on the plea, and did not propose or imply that the jury consider the plea as substantive evidence of

Bradley’s guilt.

We find no merit to Bradley’s claim that the prosecutor committed misconduct that rose to

the level of a due process violation regarding the guilty pleas of Cootware, Tomasi, and Dixon.

Appellate counsel’s failure to raise the meritless claim on direct appeal cannot excuse the procedural

default.

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B.

Bradley argues that his trial counsel provided ineffective assistance of counsel in failing to

object to the prosecutor’s elicitation of and references to the witnesses’ guilty pleas and,

consequently, that his appellate counsel should have raised an ineffective assistance of counsel claim

on appeal. As discussed above, however, the prosecutorial misconduct claim lacks merit, so

Bradley’s trial counsel’s failure to object was not constitutionally deficient performance, and

appellate counsel’s failure to raise an ineffective assistance of counsel claim in connection with the

guilty pleas cannot constitute either cause or prejudice so as to overcome the procedural default.

C.

Anticipating that the charge of felon in possession of a firearm would require evidence of

Bradley’s prior felony conviction for breaking and entering, the state trial court suggested that

Bradley’s counsel stipulate that he had committed a prior felony, thus keeping the nature of the prior

felony from the jury. Among the various crimes with which Bradley was charged were several

counts of breaking and entering. As the trial court noted, Bradley’s counsel refused the court’s

suggestion.

Bradley argues that his trial counsel’s refusal to so stipulate constituted ineffective assistance

of counsel. To support his claim of ineffective assistance of trial counsel, Bradley points to Old

Chief v. United States, 519 U.S. 172, and its statement, in the context of its discussion of Federal

Rule of Evidence 403, that “[w]here a prior conviction was for [a crime] similar to other charges in

a pending case the risk of unfair prejudice would be especially obvious.” Old Chief, 519 U.S. at

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185. Old Chief, however, involved a defendant’s rejected offer to stipulate to an unspecified prior

felony, not a rejection by a defendant of such a stipulation.

In this case, the district court rejected trial counsel’s failure to stipulate as a basis for

Bradley’s ineffective assistance of counsel claim, stating that Bradley’s attorney may have wished

to have the prior breaking and entering conviction specified to prevent speculation that it had been

a more serious crime. Strickland requires us to “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the defendant must

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

sound trial strategy.’” Strickland, 466 U.S. at 689 (citation omitted). Particularly because Bradley

was charged with numerous crimes more serious than breaking and entering, it might have been

sound strategy for his counsel to refuse to stipulate to a “prior felony,” with no further information,

and thus allow the information that the prior felony was only for breaking and entering.

Bradley does not make a sufficient showing here to overcome the presumption that

Strickland requires us to indulge. As “indirect evidence” that Bradley’s trial counsel had no strategy

at all, Bradley points to vague and ambiguous statements by his trial attorney during motions and

sentencing. It is unclear that trial counsel’s statements actually refer to the disclosure of the specific

prior offense rather than to the jury’s awareness of the fact that he had a prior felony, much less that

they indicate lack of a strategy.

Even assuming that the conduct of Bradley’s trial attorney in refusing the stipulation did fall

below an objective standard of reasonableness, Bradley fails to show the second part of the

Strickland test, that the deficiency was “so serious as to deprive the defendant of a fair trial, a trial

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whose result is reliable.” Strickland, 466 U.S. at 687. Bradley draws attention to a statement made

by the trial judge, after querying the prosecutor as to the evidence of Bradley’s alleged breaking and

entering of the Urbany camp, denying Bradley’s motion for directed verdict on that charge: “Very

skinny, but I’m going to deny the motion.” Bradley does not show a reasonable probability that, but

for his trial attorney’s refusal to stipulate to the admission of an unspecified felony, “the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. The evidence of Bradley’s

guilt introduced at trial was such that, as the district court noted, it “borders on the frivolous” to

argue that if the jury had not been informed of the specific nature of Bradley’s prior offense that they

would not have found him guilty of any of the charges that they did. Bradley’s claim that his trial

attorney rendered ineffective assistance of counsel by refusing the court’s suggestion of a stipulation

as to his prior felony thus lacks merit, and his appellate counsel’s failure to raise it cannot excuse

the procedural default.

D.

During its deliberation, the jury sent a note to the trial judge asking about the availability of

testimony of two witnesses, including Cootware. The judge ultimately instructed the jury that the

transcripts were not available and would not be available “in the foreseeable future.” The judge thus

possibly ruled contrary to Michigan Court Rule 6.414(J) and People v. Howe, 221 N.W.2d 350

(Mich. 1974), which preclude a judge from informing the jury that the transcripts would never be

available. Bradley argues that his trial counsel’s failure to object to the trial court’s response

amounted to constitutionally ineffective assistance of counsel.

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Strickland states that “counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.” 466 U.S. at 690.

The testimony about which the jury inquired was highly inculpatory. As a matter of strategy,

Bradley’s trial counsel may have preferred that the jury not review the transcripts. And Bradley has

not demonstrated a reasonable probability that the outcome of the trial would have been different

if Bradley’s trial counsel had objected to the judge’s ruling. Bradley’s ineffective assistance of

counsel claim on this issue is without merit.

E.

Bradley asserts that the trial court “denied petitioner’s Sixth Amendment right to an informed

jury when it effectively advised the jury [that] transcripts of Cootware’s testimony would never be

available.” As discussed immediately above, the trial court’s statement to the jury regarding the

transcripts may have violated Michigan state law. Yet Bradley cannot demonstrate a federal

constitutional right to have the jury provided with transcripts of witness testimony. Those federal

cases that discuss the issue of readbacks and transcript availability do so under the rubric of the

court’s supervisory authority over federal criminal trials, not on constitutional principles, and in any

event do not establish a uniform rule. Compare United States v. Betancourt, 838 F.2d 168, 175 (6th

Cir. 1988) (“the furnishing of transcripts to a jury is generally well within the district court’s

discretion”), United States v. Padin, 787 F.2d 1071, 1076 (6th Cir. 1986) (noting that whether to re-

read testimony is within the discretion of the judge, and that the judge ought to take into account,

inter alia, the difficulty of complying with the jury’s request), and United States v. Portac, Inc., 869

F.2d 1288, 1295 (9th Cir. 1989) (disfavoring rereading testimony to jurors during their

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deliberations), with United States v. Criollo, 962 F.2d 241, 244 (2d Cir. 1992) (expressing a

“preference for making readbacks available to juries.”).

“[F]ederal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502

U.S. 62, 67 (1991) (citations omitted). Bradley’s claim lacks merit.

F.

Bradley argues that the trial court denied him his rights to due process and to confront

witnesses against him when, citing hearsay, it refused to admit into evidence, or to allow Bradley’s

attorney to cross-examine Cootware about the contents of, two letters written by Cootware, one to

Bradley and the other to prisoner Shawn Moore. Bradley’s lawyer subsequently tried to have Moore

testify about the letters, specifically stating that the purpose of doing so was for impeachment only.

The judge again refused to allow admission of the letters on the basis of hearsay. Bradley asserts

that the letters contained statements that would have impeached Cootware’s trial testimony, e.g., that

in the letter to Bradley, Cootware wrote that he could not remember the events in question.

Federal habeas review of state court evidentiary rulings is extremely limited. Jordan v.

Hurley, 397 F.3d 360, 362 (6th Cir. 2005) (citing Waters v. Kassulke, 916 F.2d 329, 225 (6th Cir.

1990)). In this case it appears that the evidence that Bradley sought to have admitted, but was not

allowed to, went to the general credibility of the witness–which is not protected by the Sixth

Amendment–rather than “toward revealing possible biases, prejudices, or ulterior motives as they

may relate directly to issues or personalities in the case at hand,” which is protected under the Sixth

Amendment. Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000) (quoting Davis v. Alaska, 415 U.S.

308, 316 (1974)).

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Even if a Sixth Amendment violation did occur, however, such violation is subject to

harmless error review. Jordan, 397 F.3d at 363. “When reviewing state court decisions for

harmless error in a collateral appeal this court applies the harmless error standard set out in Brecht

v. Abrahamson, which holds that a habeas petitioner must establish the trial error had a ‘substantial

and injurious effect or influence in determining the jury’s verdict.’ 507 U.S. 619, 637 . . . (1993).”

Id. at 363-64. See also Oldham v. Kentucky, 488 U.S. 227, 232 (1988); Neder v. United States, 527

U.S. 1, 18 (1999); Gilliam v. Mitchell, 179 F.3d 990, 994-95 (6th Cir. 1999); Norris v. Schotten, 146

F.3d 314, 329-31 (6th Cir. 1998). While Cootware’s testimony was central to the prosecution’s

case, Bradley was allowed to impeach Cootware through other means, including prior false

statements to police and prior convictions; Cootware’s testimony was corroborated, at least

circumstantially and often directly, by other evidence on material points; and the prosecution’s

overall case against Bradley was strong. The error, if any, was harmless. The challenge is without

merit.

G.

Bradley argues that his appellate counsel’s failure to raise a claim of prosecutorial

misconduct concerning alleged tampering with evidence provides cause to excuse his default of that

claim. According to Bradley, after he requested a jury view of the jail, the prosecutor requested a

delay and then took the opportunity secretly to place in the jail’s shower room a replica of the soap

dish used in the assault. Bradley’s trial counsel moved for a new trial on the basis of this alleged

“tampering.” The trial counsel submitted the affidavit of a prisoner who swore that the shower room

did not contain a soap dish in the days before or after the jury view. The trial court denied the

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motion without a hearing, pointing out that no one highlighted the presence of the soap dish during

the view.

The district court found no misconduct on the part of the prosecutor, assuming he had placed

the dish in the shower, because that would “simply have restored the shower room to its condition

before the escape, a circumstance that would render the jury’s visit more, not less, useful in the

trial’s search for truth.”

While we are less sanguine than the district court that, if indeed the prosecutor had placed

the shower dish in the shower, no misconduct took place, it is patently clear that the action does not

rise to the level of a constitutional deprivation by “so infect[ing] the trial with unfairness as to result

in a denial of due process.” See Gilliard, 445 F.3d at 897. The soap dish was not pointed out during

the jury view; no one disputes that the dish accurately represented the one that had been in the

shower at the time of the jail break; the soap dish was described in detail during testimony; and in

the context of the trial as a whole, the jury’s seeing the replaced soap dish in the shower can have

had only a negligible impact, if any impact at all, on its verdict.

H.

Bradley argues that the prosecutor violated his due process right to a fair trial when he

elicited information about Bradley’s past drug dealing, financial resources, and threats against

Cootware. Bradley challenged the prosecutor’s conduct in state court, but only as a matter of state

law, and thus failed to preserve a federal due process claim. Bradley argues, as he does with respect

to all of the procedurally defaulted claims, that ineffective assistance of appellate counsel excuses

the default. Yet the underlying claim is without merit.

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Bradley faults the prosecutor for asking witness Derrick Dixon, who held money for Bradley

while the latter was in jail, what Bradley did for money, to which the witness responded in part that

Bradley sold “drugs and stuff.” Bradley also faults the prosecutor for reiterating during closing

argument that Bradley did not have a job but had money, and for eliciting from Cootware and a

police deputy that Bradley threatened Cootware.

Evidence that Bradley threatened Cootware is admissible under Michigan and federal law

as evidence of his guilt. See People v. Scholl, 556 N.W.2d 851, 856 (Mich. 1996); United States v.

Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). The prosecutor did not engage in misconduct by

eliciting that information.

Second, as the Michigan Court of Appeals noted in its analysis under state law, the

prosecutor’s question to Dixon did not appear aimed to bring out character information that would

suggest, e.g., that if Bradley did not have regular employment then he was predisposed to commit

crime. Nor did the prosecutor question Dixon further about Bradley’s alleged drug dealing or

reference that part of Dixon’s testimony. Furthermore, both the Michigan Court of Appeals and the

district court noted that Bradley’s defense counsel had inquired about Bradley’s financial

circumstances and employment on cross-examination, apparently in order “to establish [trial

counsel’s] theory that defendant had financial resources available, irrespective of the source of the

money, such that he did not agree to rob a bank, but merely sought to flee prison in order to avoid

facing additional charges pending in other jurisdictions.”

Finally, even if the prosecutor’s question and remarks did amount to misconduct, they were

not so flagrant as to deny Bradley’s right to a fair trial. It is not obvious that the prosecutor aimed

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purposefully to introduce or emphasize “bad man” evidence; the remarks were not extensive,

pronounced, or persistent; and the evidence against Bradley was very strong. The underlying claim

of Bradley’s prosecutorial misconduct claim is without merit. Even if it did have merit, however,

and even assuming arguendo that his appellate counsel was deficient in not raising the federal

constitutional claim on direct appeal, Bradley is unable to meet the second, “prejudice” part of the

Strickland test: he cannot show a reasonable probability that, but for counsel’s unprofessional errors,

the result of the appeal would have been different.

I.

Bradley raises as a separate claim that his trial attorney was constitutionally ineffective for

failing to object to the alleged prosecutorial misconduct discussed immediately above in subsection

h. of this opinion. Because the underlying claim of prosecutorial misconduct has no merit, however,

Bradley’s trial counsel cannot be ineffective in failing to object. Furthermore, at least with respect

to the prosecutor’s questioning Dixon regarding Bradley’s employment, the defense counsel may

well have had a strategy not to object, in that trial counsel also addressed the topic in an attempt to

show that Bradley had financial resources and therefore did not need to rob a bank.

J.

Bradley argues that the trial court erred when it failed to instruct the jury regarding Michigan

instruction CJI2d 4.1, which discusses proper treatment of a defendant’s out-of-court statements.

Bradley raised the issue on direct appeal only as an alleged state-law violation. Here he frames the

argument as a due process and Sixth Amendment claim, asserting, as with all of the procedurally

defaulted claims, that ineffective assistance of appellate counsel excuses the procedural default.

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The claim lacks merit. Bradley cannot demonstrate that the instruction was constitutionally

required, especially in light of the fact that the trial judge gave an extensive instruction regarding

accomplice testimony.

K.

Bradley argues that even if each of the alleged errors does not independently justify grant

of habeas relief, the cumulative weight of the errors mandates a grant of the writ. This court stated

in 2002 that “[t]he Supreme Court has not held that distinct constitutional claims can be cumulated

to grant habeas relief.” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). In a recent

unpublished opinion, this court cited Lorraine as authority for the emphatic statement that

“[c]umulative error is not a basis for granting habeas relief in non-capital cases.” Eskridge v.

Konteh, 88 F. App’x 831, 836 (6th Cir. 2004).

Regardless of whether we may review Bradley’s cumulative error claim, it has no merit; even

where there may have been trial errors, they do not individually or cumulatively rise to the level of

depriving Bradley of a fair trial.

IV

Bradley argues that his convictions for conspiracy to commit bank robbery, breaking and

entering the Urbany camp, and assault with intent to commit great bodily harm were not supported

by sufficient evidence. The parties agree that Bradley’s insufficiency-of-the evidence challenge is

not procedurally defaulted. Bradley presented it on direct appeal to the Michigan Court of Appeals,

which rejected it.

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The case cited by the Michigan Court of Appeals, People v. Terry, 569 N.W.2d 641, 644

(Mich. Ct. App. 1997), for the appropriate test sets forth the same standard as that of Jackson v.

Virginia, 443 U.S. 307, 319 (1979), viz., “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” The Michigan Court of Appeals

having enunciated the proper constitutional law, the question then becomes, under AEDPA, whether

that court’s adjudication of the claims “resulted in a decision that . . . involved an unreasonable

application of . . . clearly established Federal law, as determined by the Supreme Court of the United

States . . . .” 28 U.S.C. § 2254(d)(1). See Tinsley, 399 F.3d at 815. Bradley acknowledges as much,

but argues that the application of that law was unreasonable.

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions

but unreasonably applies that principle to the facts of petitioner’s case.” Scott v. Elo, 302 F.3d 598,

602 (6th Cir. 2002) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The Michigan Court

of Appeals reasonably applied the Jackson standard to the facts of this case in rejecting Bradley’s

insufficiency-of-the-evidence challenge with respect to the three counts. The district court laid out

in careful detail the elements of the crimes and the evidence sufficient to support each of those

elements. We agree with its analysis, and repeating its efforts here would be redundant.

V

For the foregoing reasons, we AFFIRM the district court’s denial of Bradley’s petition for

a writ of habeas corpus.

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