Peterson v. Warren

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0133n.06
Filed: February 17, 2009

No. 07-1405

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MARIO PETERSON, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
MILLICENT WARREN, )
) OPINION
Respondent-Appellee. )
)

Before: MERRITT, ROGERS, and WHITE, Circuit Judges.

WHITE, Circuit Judge. Petitioner-Appellant Mario Peterson appeals pro se the denial of

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Peterson was tried in a

Michigan state court and convicted of second-degree murder under an aiding-and-abetting theory.

The Michigan Court of Appeals affirmed his conviction and the Supreme Court of Michigan denied

leave to appeal. The federal district court denied Peterson’s habeas petition, and a certificate of

appealability was issued only as to Peterson’s claim that the admission of his non-testifying co-

defendant’s statement at their joint trial violated Peterson’s Sixth Amendment right to confront the

witnesses against him and was not harmless error. For the following reasons, we AFFIRM.

I. BACKGROUND

A. Facts
 This court relies on the facts as found by the state appellate court on direct review. See, e.g.,

Wilkins v. Timmerman-Cooper, 512 F.3d 768, 770 (6th Cir. 2008); see also 28 U.S.C. § 2254(e)(1).

The facts and procedural history as stated by the Michigan Court of Appeals are as follows:

Defendant’s conviction arises from his involvement in the drive-by shooting
of LaWranza Robertson. Codefendant William Martin shot Robertson from the rear
side window of a passing car in which defendant was the driver, and another
codefendant, Shawn Lundy, was a front-seat passenger.

The evidence against defendant consisted primarily of the testimony of Steven
Brown, who was with Robertson, and defendant’s statement to the police. Brown
testified that he was walking Robertson home from a barbecue shortly after midnight
on June 6, 1999, when a station wagon approached and slowed down at the
intersection of Holmur and Chalfonte in Detroit. Although he did not recognize the
car, Brown recognized the occupants as defendant, Martin and Lundy. As the car
slowed down, Martin leaned out the back window and started shooting with a black
handgun. Robertson was struck in the chest and died.

The defense theory was, in essence, that this was a tough neighborhood, that
Brown and his associates wanted to control drug sales in the neighborhood, that
Brown shot at the station wagon as part of a turf battle, and that Martin shot back in
self-defense (mistakenly hitting Robertson). Brown denied being armed. Although
a witness heard two sets of gunfire, all bullet shells found at the scene were fired
from Martin’s weapon.

Defendant, Lundy, and Martin were tried jointly—defendant and Lundy
before one jury, and Martin before a separate jury. Defendant’s jury heard custodial
statements given by Lundy as well as himself, but was instructed that Lundy’s
statement could not be considered in determining his guilt, nor could his statement
be considered in determining Lundy’s guilt. In his statement, defendant said he, his
brother and Martin were driving around earlier in the evening and heard
approximately twenty-two gunshots. They went back to defendant’s house; Martin
left and returned later in a station wagon. Martin asked defendant and Lundy if they
wanted to ride around, and they got in with him. When they were riding around,
“Martin said he was wondering who was shooting at us,” but defendant did not know
Martin had a gun until they were riding down Holmur. Martin had a black automatic
pistol and fired seven or eight shots without saying anything. Defendant said he
asked Martin who he was shooting at because he did not see anyone on the street.
Defendant told the police he had a dispute with Patrick Bryant about whether he
(defendant) was selling drugs in Bryant's territory (the shooting occurred near

2
 Bryant's home). Also, a month earlier, Bryant had “sucker-punched” defendant, but
defendant said he had not seen Bryant since that time.

The prosecutor generally characterized the shooting as a “plan” to “hunt”
down Bryant or his associates. Defendant was asked about a plan, and responded (in
his statement) as follows:

Q. Did you, Shawn and Martin plan to hunt down Patrick, Dwayne,
Steve and little Mo?
A. Martin said if that's who was outside, that's who we were going to
get.
***
Q. Did you, Martin, and Shawn make plans before the shooting?
A. We said that we were going to ride around and look for whoever
was outside.

...

The trial court allowed [defendant’s and Lundy’s] statements into evidence,
but instructed the jury to consider Lundy’s statement only when deciding Lundy’s
case. Lundy did not testify and, therefore, was not subject to cross-examination
regarding his statement.

The prosecutor’s closing argument was divided into two parts, one addressing
the case against Lundy and one addressing the case against defendant. The Lundy
statement was cited by name only during the Lundy portion of closing. Nonetheless,
the prosecutor referred to some evidence established by the Lundy statement when
discussing the evidence against defendant. Notably, the prosecutor twice referred to
an earlier shooting “at” defendant, which came from Lundy’s statement, although
arguably it also was established by defendant’s statement. No objection was raised.

People v. Peterson, 2002 WL 31934114, at *1-2 (Mich. Ct. App. Nov. 19, 2002) (per curiam).

“Following a jury trial, defendant was convicted of second-degree murder, M.C.L. § 750.317, under

an aiding and abetting theory.” Id. at *1.

B. State Proceedings

Peterson appealed his conviction to the Michigan Court of Appeals, raising ten issues in his

principal brief and a supplemental brief filed in propria persona. One of Peterson’s arguments was

3
that the admission of Lundy’s statement at the joint trial denied Peterson his rights under the

Confrontation Clause of the Sixth Amendment.1 Rejecting the prosecutor’s argument that Lundy’s

statement was entirely exculpatory and thus Bruton v. United States, 391 U.S. 123 (1968), is

inapplicable, the Michigan Court of Appeals concluded that Lundy’s statement inculpated Peterson

by indicating that he shared a plan to seek revenge for an earlier shooting. Peterson, 2002 WL

31934114, at *2. The court then analyzed the case under Cruz v New York, 481 U.S. 186 (1987),

and concluded that a Confrontation Clause violation occurred even though the trial court gave a

limiting instruction as to the use of Lundy’s statement and Peterson’s own confession was introduced

against him. Peterson, 2002 WL 31934114, at *2-3.

The court concluded, however, that the error was harmless. It rejected Peterson’s argument

that Lundy’s statement provided the “only evidence that . . . there was a revenge motive based on

an earlier shooting.” Id. at *3. The court observed that although “Lundy’s statement directly

established a motive based on Patrick’s earlier shooting at defendant,” Peterson’s own statement

“admitted that he heard twenty-two shots when driving around with Martin earlier and that when

driving around in the station wagon ‘Martin said he was wondering who was shooting at us.’” Id.

at *4. The court further recognized that Peterson “also stated that he had a ‘beef’ with Bryant based

1
Peterson’s other arguments were that (a) the circuit court should have declared a mistrial due
to alleged juror misconduct, (b) Peterson should have been tried separately from Lundy, (c)
Peterson’s statement to the police was involuntary and should have been suppressed, (d) the evidence
of shared intent and cause of death was insufficient, (e) the cumulative effect of multiple errors
deprived him of a fair trial, (f) the court erred when it vacated his sentence for murder and imposed
a new sentence under Michigan’s habitual offender statute, (g) he was entitled to sentence credit for
time served, (h) he was entitled to a new hearing pursuant to People v. Walker, 132 N.W.2d 87
(Mich. 1965), so that he could testify that his statement was coerced, and (i) the court’s ruling that
the prosecutor could inquire as to the truthfulness of Peterson’s statement to police “chilled” his right
to testify at his Walker hearing. See Peterson, 2002 WL 31934114, at *2-8.

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on an incident a month earlier in which Bryant ‘sucker-punched’ him at a store.” Id. The court

concluded that “[w]hile Lundy’s statement makes the dispute seem more immediate and clear, . . .

those differences are merely a matter of degree.” Id.

The court similarly rejected Peterson’s argument that Lundy’s statement was the only

evidence that “there was a ‘plan’ to look for Bryant or his associates.” Id. at *3. The court noted

that Peterson also spoke about a plan in his statement:

Q. Did you, Shawn and Martin plan to hunt down Patrick, Dwayne, Steve and little
Mo?
A. Martin said if that's who was outside, that's who we were going to get.
***
Q. Did you, Martin, and Shawn make plans before the shooting?
A. We said that we were going to ride around and look for whoever was outside.

Id. This, the court observed, was “similar to Lundy’s own account” that “Ken said we were going

to ride until they saw Patrick, Dwayne, Steve or Little Mo” and that “[t]here was a plan. Ken was

to be let out of the vehicle once he saw any of them . . . .” Id.

Peterson’s argument that Lundy’s statement was the only evidence that “the station wagon

was a ‘crack rental,’ which buttressed the prosecutor’s argument that the three defendants did not

drive their own cars so they could have the element of surprise and facilitate an anonymous

getaway,” id. at *3, was similarly rejected by the appeals court. The court noted that Peterson’s

statement “said that the station wagon ‘probably was a base rental’” and concluded that because

“[t]hose references are substantially identical, . . . there was no harm.” Id. at *4.

The court also rejected Peterson’s argument that “Lundy’s statement ‘bolstered’ details of

Steven Brown’s testimony that a station wagon was used, that defendant drove, that Lundy rode in

front, and that Martin shot from the back seat.” Id. at *3. The court found Lundy’s statement in this

5
regard to be “clearly harmless,” as Brown’s testimony on these points was undisputed and Peterson’s

own statement confirms these details. Id.

Finally, the court rejected Peterson’s argument that the use of Lundy’s statement was not

harmless because the prosecution relied on it in its closing argument. Id. The court recognized that

the prosecutor “indeed relied on statements about the earlier shooting in closing argument,” in which

the prosecution argued that Peterson agreed to drive the car “after being shot at” and that there is “no

question of Mr. Peterson’s intent when he agreed to drive that car was to get back because he was

just fired upon 22 times. He was going to go back and do the same thing. They had a plan, and

that’s what they did.” Id. at *4 (emphasis added by appeals court). However, the court also

recognized that Peterson’s own statement

indicated that he heard about twenty-two shots while riding around with his brother
and Martin around 9:30 pm. Defendant did not directly state that he thought he had
been fired upon, as Lundy stated; however, defendant did state that Martin wondered
who was shooting at “us.” Further, defendant’s statement indicated that he had a
“beef” with Bryant because of the “sucker-punch” a month earlier[.]

Id. The court thus

conclude[d] that the prosecutor’s argument was not improper because it was based
on defendant’s own statement and the legitimate inference that defendant believed
himself to be a target of the earlier gunshots. Even though Lundy’s statement makes
the dispute sound more immediate, that distinction is not sufficiently material to
require reversal. The prosecutor's reference to a “plan” is supported by defendant's
own statement, which referred to a plan to drive around until they saw Bryant or his
associates, so the prosecutor’s use of the word “plan” is harmless.

Id. The court also noted that Peterson did not object to the prosecutor’s closing argument and that

“defendant’s counsel himself expressly referred to Lundy’s statement in closing arguments to

buttress his argument that there was no plan to kill anybody.” Id.

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 After disposing of Peterson’s remaining issues on appeal, the court affirmed Peterson’s

conviction and sentence—though it remanded so that the judgment of sentence could be corrected

to reflect credit for time served. Id. at *1, 7-8. The Supreme Court of Michigan denied Peterson’s

delayed application for leave to appeal the ruling of the Court of Appeals, though three Justices

would have “order[ed] the prosecutor to show cause why the defendant’s conviction should not be

reversed on the ground that the statement of a non-testifying co-defendant was present before the

jury.” People v. Peterson, 664 N.W.2d 214 (Mich. 2003) (Table).

C. Federal Habeas Proceedings

On June 22, 2004, Peterson filed pro se a petition for a writ of habeas corpus in federal

district court. The court subsequently permitted Peterson to file an amended habeas petition which

contained only claims he had already exhausted in the Michigan courts. See Peterson v. Warren, No.

Civ. 04-72299-DT, 2006 WL 36756 (E.D. Mich. Jan. 5, 2006). This amended petition asserted six

grounds for relief: (a) petitioner’s “conviction [was] obtained by use of coerced confession,” (b)

petitioner’s “conviction [was] obtained by use of evidence gained pursuant to an unconstitutional

search and seizure, and unlawful arrest,” (c) “denial of Sixth Amendment and state constitutional

rights to confront the witness against me,” (d) “juror misconduct,” (e) “sufficiency of the evidence,”

and (f) “habitual offender sentence.” J.A. 77 (Habeas Pet. Attach. Sheet) (capitalization altered;

minor spelling errors corrected).

The district court rejected all six arguments and denied Peterson’s habeas petition. Peterson

v. Warren, No. 04-CV-72299-DT, 2007 WL 496683 (E.D. Mich. Feb. 13, 2007). Regarding

Peterson’s Sixth Amendment claim, the district court noted that “before a federal constitutional error

can be held harmless, the court must be able to declare a belief that it was harmless beyond a

7
reasonable doubt.” Id. at *6 (quoting Chapman v. California, 386 U.S. 18, 24 (1967) (quotation

marks omitted)). The district court recognized that “[w]hen a state court addresses a harmless-error

claim on direct review, the clearly established federal law that it must apply is the Chapman

standard,” id. (quoting Eddleman v. McKee, 471 F.3d 576, 582 (6th Cir. 2006) (quotation marks

omitted)), and followed this circuit’s then-current precedent that the plain language of the

Antiterrorism and Effective Death Penalty Act (AEDPA) “requires a federal court to deny a habeas

petition unless a state court’s determination of harmless error was contrary to, or an unreasonable

application of, the principle that an error must be harmless beyond a reasonable doubt.” Id. (citing

Eddleman, 471 F.3d at 582).

The district court “conclude[d] that the Michigan Court of Appeals’ conclusion that

admission of Lundy’s statement was harmless error beyond a reasonable doubt was a reasonable

application of the Chapman standard.” Id. The court ruled that any error in admitting Lundy’s

statement was harmless “in light of the fact that petitioner confessed to a full participation as an aider

and abettor to the murder.” Id. Peterson’s statement, as well as Brown’s testimony that Peterson

was driving and that the car slowed down at the intersection prior to the shooting (which supports

an inference that Peterson slowed the car down to enable Martin to shoot at Brown), “provided

compelling evidence that petitioner aided and abetted in the murder of the victim.” Id. at *6-7. The

court thus concluded that Lundy’s statement was “merely cumulative,” that its admission was

harmless, and that, “[a]t a minimum, this Court cannot state that ‘the “minds of an average jury”’

would have found the prosecution’s case against petitioner ‘“significantly less persuasive”’ had the

incriminating portion of the co-defendant’s statement been excluded.” Id. at *7 (quoting Stanford

v. Parker, 266 F.3d 442, 456 (6th Cir. 2001)).

8
 Petitioner moved for a certificate of appealability on his Fifth and Sixth Amendment claims.

The district court declined to issue a certificate of appealability as to the former, but granted a

certificate of appealability as to the latter. We denied Peterson’s subsequent application for an

expanded certificate of appealability that would include his Fifth Amendment claim, observing that

he failed to establish that his confession was involuntary and the district court’s decision is not

debatable amongst jurists of reason.2 Thus, only petitioner’s Sixth Amendment claim is now before

this court.

II. DISCUSSION

This court reviews de novo a district court’s denial of a habeas petition. Joseph v. Coyle, 469

F.3d 441, 449 (6th Cir. 2006). Factual issues determined by the state court “shall be presumed

correct” unless rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

“Confrontation Clause errors are subject to harmless-error analysis.” Vasquez v. Jones, 496

F.3d 564, 574 (6th Cir. 2007). Peterson maintains that the Michigan Court of Appeals applied the

wrong legal standard when it decided that the admission of Lundy’s statement was harmless error.

He argues that the Michigan court should have applied the test for harmless error found in Chapman

v. California, 386 U.S. at 24, which requires the reviewing court, in order to hold that a

constitutional error is harmless, “be able to declare a belief that it was harmless beyond a reasonable

doubt.” Instead, Peterson contends, the court applied the harmlessness test from Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993), which states that the reviewing court should determine that

an error is harmless unless the error “had substantial and injurious effect or influence in determining

2
Accordingly, Peterson’s arguments on appeal that his statement to the police was not
voluntary are of no moment and we do not address them.

9
the jury’s verdict.” According to Peterson, “[a]pplying Brecht for harmlessness is both ‘contrary to’

and an ‘unreasonable application’ of Supreme Court precedent. . . . The Michigan Court of Appeals

went beyond a mere impact of the Bruton violation and searched for extended prejudice which shows

they applied Brecht instead of Chapman.”

The Chapman test for harmlessness is to be used on direct review, while the Brecht test is

to be used on collateral review. Wilson v. Mitchell, 498 F.3d 491, 502 (6th Cir. 2007), cert. denied,

129 S. Ct. 172 (2008). Thus, Peterson is correct that the Chapman standard was the proper test for

the Michigan Court of Appeals to employ. However, it appears that the Michigan court employed

the Chapman standard. Although the court neither cited Chapman by name nor explicitly invoked

Chapman’s “beyond a reasonable doubt” language in its discussion of the Confrontation Clause

error, it discussed Cruz, supra, in connection with both the substantive error and the determination

of harmlessness, and referred to the harmless error analysis under Harrington v. California, 395 U.S.

250 (1969), as referred to in Cruz. Peterson, 2002 WL 31934114, at *3. In Harrington, the

Supreme Court explicitly “reaffirm[ed]” the Chapman test and employed it to determine whether a

Bruton Confrontation Clause violation constituted harmless error. Harrington, 395 U.S. at 253-54.

The Michigan Court of Appeals’ repeated references to Cruz, including Cruz’s citation to

Harrington, make clear that the court applied the proper standard in reaching its harmless error

determination. Nowhere does the court’s analysis suggest that it employed any standard other than

the Chapman standard.

In any event, federal courts sitting in habeas corpus review of a state court’s finding of

harmlessness employ the Brecht standard when determining whether a violation of the Confrontation

Clause was harmless error. The district court below did not apply Brecht because it was following

10
this court’s then-controlling precedent of Eddleman v. McKee, in which we held that “AEDPA

replaced the Brecht standard with the standard of Chapman plus AEDPA deference when . . . a state

court made a harmless-error determination.” Eddleman, 471 F.3d at 583. The Supreme Court has

since rejected Eddleman’s approach, holding instead that a federal court sitting in habeas “must

assess the prejudicial impact of constitutional error in a state-court criminal trial under the

‘substantial and injurious effect’ standard set forth in Brecht, whether or not the state appellate court

recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable

doubt’ standard set forth in Chapman.” Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 2328 (2007)

(citations omitted); see Vasquez, 496 F.3d at 574-75 (explaining that Fry overruled Eddleman and

that Brecht supplies the harmless-error standard on federal habeas review); see also DeJesus v.

Lafler, 277 F. App’x 594, 595-96 (6th Cir.) (same), cert. denied, 129 S. Ct. 409 (2008); Wilson, 498

F.3d at 502-03 (same). Therefore, we must determine whether the Sixth Amendment violation that

occurred at Peterson’s trial “‘had substantial and injurious effect or influence in determining the

jury’s verdict.’” Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).3 “[W]hen a court is ‘in virtual equipoise as to the harmlessness of the error’ under the

Brecht standard, the court should ‘treat the error . . . as if it affected the verdict . . . .’” Fry, 127 S.

Ct. at 2327 n.3 (quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)).

To determine the effect of the error under Brecht, we consider both the impact of the

improperly admitted evidence and the overall weight of the evidence presented at trial. See Brecht,

3
Although the district court did not analyze the harmless-error issue under Brecht, we are
mindful that the Brecht test “subsumes” the AEDPA/Chapman standard. Fry, 127 S. Ct. at 2327;
see also Wilson, 498 F.3d at 503 (observing that the Brecht test is “stricter (i.e., tougher on the
petitioner) than AEDPA/Chapman”).

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507 U.S. at 639. As observed by the Michigan Court of Appeals, although Lundy’s testimony does

supply additional evidence, that evidence is largely “cumulative” of Peterson’s inculpatory statement4

and Brown’s testimony. We conclude, in light of the weight of the other evidence of Peterson’s guilt

and the cumulative nature of Lundy’s statement, that the admission of Lundy’s statement was

harmless error—that it did not have “substantial and injurious effect or influence in determining the

jury’s verdict.”

In his custodial statement, Peterson essentially confessed to aiding and abetting the murder

of Robertson. See Peterson, 2002 WL 31934114, at *1-2 (describing Peterson’s custodial statement);

id. at *2-4 (analyzing the effect of Peterson’s “confession”).5 Peterson argues that he never confessed

to the crime of murder—that, “[a]t best,” his statement “could be construed as an aider [and] abettor,”

and that the court “transformed an aider-abettor statement into a full confession on murder.” He

4
Notwithstanding the danger that a non-testifying co-defendant’s statement might inculpate
the defendant by underscoring the reliability of the defendant’s own inculpatory statements, a
defendant’s confession may be considered in determining whether a Bruton violation was harmless.
Cruz, 481 U.S. at 193-94; Stanford v. Parker, 266 F.3d 442, 456 (6th Cir. 2001) (“An erroneous
admission of a non-testifying co-defendant’s confession can constitute harmless error where the
defendant claiming a Bruton violation confessed to full participation in the crimes.”).
5
In its examination of the sufficiency of the evidence of Peterson’s conviction of aiding and
abetting murder, the Court of Appeals applied the elements as stated in People v. Carines, 597
N.W.2d 130, 135 (Mich. 1999). See Peterson, 2002 WL 31934114, at *6. Carines explains that
[t]o support a finding that a defendant aided and abetted a crime, the prosecutor must
show that (1) the crime charged was committed by the defendant or some other
person, (2) the defendant performed acts or gave encouragement that assisted the
commission of the crime, and (3) the defendant intended the commission of the crime
or had knowledge that the principal intended its commission at the time he gave aid
and encouragement. An aider and abettor’s state of mind may be inferred from all
the facts and circumstances. Factors that may be considered include a close
association between the defendant and the principal, the defendant’s participation in
the planning or execution of the crime, and evidence of flight after the crime.
Carines, 597 N.W.2d at 135 (citation and quotation marks omitted).

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contends this is significant because “[t]he crimes are different and fall under different statutes.”

Peterson is mistaken. Michigan’s aiding and abetting statute provides that “[e]very person concerned

in the commission of an offense, whether he directly commits the act constituting the offense or

procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and

on conviction shall be punished as if he had directly committed such offense.” Mich. Comp. Laws

§ 767.39. Aiding and abetting “is not a separate substantive offense,” but rather “is simply a theory

of prosecution that permits the imposition of vicarious liability for accomplices.” People v. Robinson,

715 N.W.2d 44, 47 (Mich. 2006) (footnote and internal quotation marks omitted).

Peterson argues that his statements to police that, as the Michigan Court of Appeals put it, “he

asked Martin who he was shooting at” and “did not see anyone on the street,” Peterson, 2002 WL

31934114, at *1, show that he did not have the requisite intent. However, the Court of Appeals

characterized Peterson’s statements as meaning that he “asked Martin who he was shooting at because

he did not see anyone on the street.” Peterson, 2002 WL 31934114, at *1 (emphasis added); see also

id. at *6 (“After the shooting, defendant did not merely ask why Martin had shot his gun. Instead,

he asked why Martin shot because he (defendant) didn’t see anyone on the street. This is consistent

with the theory that they were hunting for someone.”) (emphasis in the original). Moreover, this

statement creates no doubt about Peterson’s intent when considered in the context of Peterson’s

damning statements to police when asked about a “plan”:

Q. Did you, Shawn and Martin plan to hunt down Patrick, Dwayne, Steve and little
Mo?
A. Martin said if that’s who was outside, that’s who we were going to get.
***
Q. Did you, Martin, and Shawn make plans before the shooting?
A. We said that we were going to ride around and look for whoever was outside.

13
Id. at *4 (emphasis added).

Peterson also contests the Michigan Court of Appeals’s finding that “[t]he evidence also

indicated that defendant slowed down at the intersection, thereby supporting an inference that he did

this to enable Martin to shoot.” Id. at *6. This finding was apparently based on Steven Brown’s

testimony that the car used in the shooting approached and slowed down at the intersection, and that,

as it slowed down, Martin leaned out the back window and started shooting. See id. at *1. Peterson

says he “was approaching a stop sign,” which, he argues, “contradicts slowing down to shoot Bryant.”

However, a state court’s factual finding is, under AEDPA, “presumed correct” unless rebutted by

“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). There is no “clear and convincing

evidence” to establish that Peterson only slowed the car to comply with a stop sign and did not slow

down “to enable Martin to shoot.”6

Brown’s testimony, which largely corroborates Peterson’s own statement and provides

evidence of Peterson’s intent, also supports the conclusion that the violation of Peterson’s Sixth

Amendment rights under Bruton was harmless. See Stanford, 266 F.3d at 457. Brown identified the

car used as a station wagon and noted that the car pulled up fast and then slowed down as it

approached the intersection. Brown recognized Peterson and stated that Peterson and Bryant had

previously fought. Brown also noted that Bryant lived near where the shooting occurred. Based on

this testimony, as well as Peterson’s own statements about the plan and the fact that “defendant’s

counsel himself expressly referred to Lundy’s statement in closing arguments to buttress his argument

that there was no plan to kill anybody” (Peterson, 2002 WL 31934114, at *4), it cannot be said that

6
Indeed, as the prosecution argued in its closing, the defense’s contention that Peterson
slowed the car to comply with a stop sign was arguably at odds with the defense’s theory that the car
was being fired upon and Martin shot back in self-defense. See J.A. 55-57.

14
the erroneous admission of Lundy’s statement had “substantial and injurious effect or influence in

determining the jury’s verdict.” See Brecht, 507 U.S. at 637.

III. CONCLUSION

The district court’s denial of Peterson’s petition for a writ of habeas corpus is AFFIRMED.

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