NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0107n.06
No. 09-1250
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Feb 14, 2011
LEONARD GREEN, Clerk
DON PERKINS, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
KENNETH T. McKEE, Warden, )
)
Respondent-Appellee. )
)
Before: BOGGS, MOORE and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. After a state court jury convicted Don Perkins of two counts of
first-degree murder and imposed a life sentence, he filed a petition for a writ of habeas corpus. The
district court denied the petition and granted a certificate of appealability on three issues: (1)
whether the trial court impaired his right to present a complete defense; (2) whether prosecutorial
misconduct violated his right to a fair trial; and (3) whether counsel provided ineffective assistance.
We affirm.
I.
Late in the night spanning October 15 and 16, 2001, Damon Hill, Antonio Hall and Maurice
Odums drove to Hall’s girlfriend’s residence at 14181 Spring Garden Street. After parking, they
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Perkins v. McKee
walked to the back of the residence where three men with guns surprised them. The gunmen pointed
their handguns at the trio. No one moved for thirty or forty seconds. When Odums heard a gunshot,
he ran through the backyard and down an alley toward an intersection, where he saw police. He ran
to the police car and told the officers that “some guys was just shooting at me in the back yard.”
R.11-5 at 116.
Corey Scales emerged from the alley. The officers arrested Scales, after which they
proceeded down the alley until they discovered the bodies of Hall and Hill at the driveway for 14181
Spring Garden Street. Each had suffered a single gunshot wound to the head.
When Sergeant Eric Decker arrived, he stood near the officers’ squad car, where Scales was
detained in the back seat. A white Chevrolet Caprice drove by, slowing as it approached the police
car. As the vehicle passed, Scales pressed his face against the squad car’s backseat window,
seemingly (according to Sergeant Decker) trying to communicate to the car’s occupants. Decker
pointed his flashlight at the Caprice and ordered the driver to stop the car, but the driver kept
moving.
Officers in two other cars pursued the vehicle. The car eventually slowed down and a
passenger, Anthony Patton, exited. The driver, Don Perkins, stopped, and the officers arrested him.
On October 16, Maurice Odums identified Don Perkins in a police lineup as one of the gunmen at
14181 Spring Garden Street.
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A grand jury charged Perkins with two counts of premeditated murder, two counts of felony
murder, one count of armed robbery, one count of assault with intent to commit murder, one count
of being a felon in possession of a firearm, and one count of possession of a firearm during the
commission of a felony. At trial Perkins denied any involvement in the murders. He testified that
he had been at a wake until approximately 10:40 PM on the night of the murders. The only reason
he was in the neighborhood, he said, was to pick up Lena Nixon, a woman he had been dating, at a
nearby bus stop. A jury convicted Perkins on all counts and sentenced him to life in prison for the
murder convictions.
The Michigan Court of Appeals affirmed his conviction, and the Michigan Supreme Court
denied leave to appeal. The district court rejected his habeas petition and granted a certificate of
appealability on three issues: (1) whether the trial court impaired his right to present a complete
defense; (2) whether prosecutorial misconduct violated his right to a fair trial; and (3) whether
counsel provided ineffective assistance.
II.
Perkins filed his habeas petition after the effective date of the Antiterrorism and Effective
Death Penalty Act. We therefore may grant the writ with respect to claims “adjudicated on the
merits in State court proceedings” only if the state court adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of” clearly established Supreme Court precedent
or “resulted in a decision based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
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III.
Perkins first claims that the state trial court violated his right to present a complete defense
when it refused to allow him to call the officer who took Maurice Odums’ statement on the night of
the murders. After the State rested, Perkins called Sergeant Christopher Quarello to testify about a
statement that Maurice Odums gave to the police on the night of the murders. In the statement,
Odums described Perkins as about 5'6" tall, even though he is about six feet tall. Defense counsel
thought this testimony would undermine Odums’ identification.
But as it turned out, Officer Fisher, not Sergeant Quarello, had taken Odums’ statement, and
Fisher was not on the witness list. When counsel realized the problem, he tried to call Officer Fisher
to the stand. The court denied the request because Perkins had not put Officer Fisher on the witness
list, it did not want to delay the proceedings and Fisher’s testimony would have repeated Odums’
earlier testimony. The Michigan court of appeals agreed that Perkins’ request to produce Officer
Fisher would have “delayed the trial considerably” and that Officer Fisher’s testimony would have
touched on matters that were “already covered in detail at trial.” R.11-13 at 3. It therefore held that
the trial court did not abuse its discretion in denying Perkins’ request to produce Officer Fisher.
This decision did not unreasonably apply Supreme Court precedent. Criminal defendants
enjoy a Sixth and Fourteenth Amendment right to present evidence, but that right “is subject to
reasonable restrictions,” including reasonable restrictions on the admission of evidence at a trial.
United States v. Scheffer, 523 U.S. 303, 308 (1998). So long as judges rely on evidentiary and local
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rules of general applicability that are not “arbitrary or disproportionate to the purposes they are
designed to serve,” the judges may enforce these rules. Id. (internal quotation marks omitted). Trial
judges also have “wide discretion” to refuse to admit testimony that would be “merely cumulative
in nature.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 230 (1940).
Under Michigan law, criminal defendants must disclose to the prosecutor the names and
addresses of all witnesses they plan to call at trial. Mich. Ct. R. 6.201(A)(1); Mich. Comp. Laws
§ 767.94a(1)(a). Defendants may add other witnesses during trial only with the court’s permission.
M.C.R. 6.201(F), (I); M.C.L. § 767.94a(2)–(3).
Perkins wisely does not challenge the Michigan rule itself, which is neither arbitrary nor
disproportionate to its purposes because, without it, no lawyer could prepare for trial. Cf. Taylor v.
Illinois, 484 U.S. 400, 401–02 (1988). Perkins instead challenges the trial court’s application of the
rule. He notes that, because the prosecuting attorney removed Fisher from the witness list, “any
blame for the delay should” lie with the State. Perkins Br. at 11, 12. But nothing in the record tells
us who removed the Fisher from the witness list. The prosecutor acknowledged that Officer Fisher
“was removed from the witness list,” R.11-8 at 8, but did not say who took him off the list. Nor did
anyone else. Nor for that matter is it clear that, even if the prosecutor had initially placed Fisher on
its witness list, this would alleviate defense counsel’s obligation to prepare his own accurate witness
list. On this record, we cannot say that the state trial court unreasonably found that Perkins was
responsible for Fisher’s absence from the list.
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Even so, Perkins adds, Fisher’s testimony “went to the very heart of this case” and would
have “create[d] a reasonable doubt that otherwise would not exist,” and thus any witness-list errors
should have been excused. Perkins Br. at 12, 13. Yet the state courts held that this testimony was
cumulative, and reasonably so. At this point in the trial, the jury had already heard from Maurice
Odums about his witness statements to police and about any inconsistencies between that testimony
and his testimony in another trial. The prosecutor and Odums engaged in a long colloquy about his
description of Perkins to officers, including his estimate that Perkins was “maybe six feet tall.”
R.11-5 at 119. Defense counsel then attempted to undermine Odums’ identification testimony. He
asked about Odums’ prior testimony in Corey Scales’ trial, including a statement in which Odums
described Perkins as “[t]he small guy,” R.11-6 at 40, all as part of a series of questions designed to
show inconsistencies between Odums’ testimony at Perkins’ trial and his testimony in Corey Scales’
trial. Although Odums never specifically said Perkins was 5'6" tall, as opposed to saying he was
“[t]he small guy,” the state court’s conclusion that any inconsistencies in Odums’ testimony had
“already been brought out” was a reasonable one. R.11-8 at 10.
IV.
Perkins next claims that the state courts violated his constitutional rights, primarily it appears
his rights under the Compulsory Process Clause, with respect to how they treated his efforts to call
Lena Nixon as a witness. Here, too, he is mistaken.
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Perkins identified Nixon as an alibi witness and sought to produce her at trial, but she
managed to avoid service of a witness subpoena. In response, Perkins asked to call the process
server, the individual who tried to serve the subpoena, as a witness. The trial court rejected the
request because the process server could not say anything about Nixon’s testimony, only what the
individual had done to try to serve her. That was a reasonable decision. The Compulsory Process
Clause does not require courts to admit irrelevant evidence. Crane v. Kentucky, 476 U.S. 683,
689–90 (1986). Because the process server could not have testified about what Nixon would have
said, but only how he had tried to serve her, the trial court had no obligation to permit the testimony.
To the extent Perkins means to argue that the trial court refused to subpoena Nixon, that does
not help him. Perkins offers no evidence that the trial court refused to issue the subpoena, and
nothing in the record supports the idea. To the contrary: Perkins’ efforts to call the process server
as a witness suggest that the court indeed issued a subpoena but that Nixon could not be found.
To the extent Perkins means to argue that the trial court should have offered additional
assistance in locating and producing Nixon, that contention goes nowhere. The Michigan court of
appeals held that, as a matter of Michigan evidence law, Perkins did not seek additional assistance
until it was too late. See M.C.L. § 767.40a(5). A state court’s application of its own evidentiary
rules, unless fundamentally unfair, does not violate the U.S. Constitution. Wynne v. Renico, 606
F.3d 867, 871 (6th Cir. 2010). That was not the case here.
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V.
Perkins complains that his counsel provided ineffective assistance by failing (1) to object to
“the many instances of prosecutorial misconduct,” (2) to move to suppress the lineup in which
Odums identified Perkins and (3) to present “an expert witness on the inherent problems with
eyewitness testimony.” Perkins Br. at 24–25. Constitutionally ineffective assistance exists when
“counsel’s performance was deficient” and the “deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is constitutionally
deficient when it falls “below an objective standard of reasonableness.” Id. at 688. Our analysis is
“highly deferential” and we “indulge a strong presumption that counsel’s conduct [fell] within the
wide range of reasonable professional assistance.” Id. at 689. Deficient performance prejudices the
defense when “there is a reasonable probability” that “the result of the proceeding would have been
different.” Id. at 694. Because the Michigan court of appeals reviewed Perkins’ ineffective-
assistance claim on the merits, we give the state court’s adjudication AEDPA deference. See 28
U.S.C. § 2254(d). The Supreme Court recently emphasized the double dose of deference that federal
courts must give state courts in reviewing Strickland claims under AEDPA:
As a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement. . . . An
ineffective-assistance claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial, and so the Strickland standard must
be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the
integrity of the very adversary process the right to counsel is meant to
serve. . . . Federal habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness under § 2254(d). When
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§ 2254(d) applies, the question is not whether counsel’s actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 786–88 (2011).
A.
Disparaging comments. Perkins’ main argument goes to his counsel’s failure to object to
disparaging comments by the prosecutor. Two inquiries guide whether a prosecutor’s misconduct
warrants a new trial and whether, for present purposes, a reasonable attorney would have objected
to the conduct. One, we ask whether “the prosecutor’s conduct and remarks were improper.”
Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002). Two, if the comments were improper, we
ask “(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice
the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the
remarks were deliberately or accidentally made; and (4) whether the evidence against the defendant
was strong.” Id. (citing United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 2002)); see Darden
v. Wainwright, 477 U.S. 168 (1986); United States v. Young, 470 U.S. 1 (1985). At issue then is
whether the prosecutor’s conduct rose to this level, whether as a result Perkins’ counsel should have
objected and whether any failure to object prejudiced Perkins.
1.
Prosecutorial misconduct—opening statement. First, the prosecutor noted in his opening
statement that Corey Scales’ “case has already been disposed of,” R.11-5 at 70, a reference that
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became unfair, Perkins says, when the prosecutor elicited testimony from Odums that he had testified
at Scales’ trial. The “clear implication” from this part of the opening statement and Odums’
testimony, as Perkins sees it, is that Odums must be a credible witness because he testified at the trial
of a defendant whose case had “already been disposed of.” Perkins Br. at 16.
But this argument piles one unwarranted assumption on another. Assumption one: when the
prosecutor said that Scales’ case had been disposed of, he implied Scales had been convicted at his
trial. Assumption two: because Maurice Odums had testified for the State in a trial where the jury
convicted the defendant, Odums must be a reliable witness. Assumption three: that a jury would
connect the two inferences, even though they do not specifically reference one other or for that
matter say what Perkins suggests they say. Each assumption is unnecessary, and the risk that all
three would be made by the jury is an attenuated one. A court can “dispose of” a criminal
defendant’s case with a conviction, an acquittal or in some circumstances a mistrial. The
prosecutor’s comment in his opening statement elevates none of those meanings over the others.
Odums’ statement that he testified at Scales’ trial thus tells the jury little. And the reality that the
prosecutor made the two statements at different times, roughly an hour or two apart, weakens further
the risk that any such inferences would be drawn. The Michigan court of appeals reasonably
determined that Perkins was not prejudiced by his counsel’s failure to object.
Second, the prosecutor said in his opening statement that Maurice Odums “passed the gold
standard test, going to a line-up and choosing the right man, that is Don Perkins.” R.11-5 at 81–82.
The district court acknowledged that “[t]his remark would have been better suited to closing
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arguments,” but that ultimately it “could not have prejudiced Petitioner, given the strength of
evidence against him and the trial court’s instruction that the attorneys’ opening statements were not
evidence.” R.11-13 at 10. We agree. The remark was fleeting, relatively mild and indeed could
have been made in the same trial, albeit during closing argument. At a minimum, and as the
Michigan court of appeals concluded, defense counsel’s failure to object to it was not prejudicial.
See Byrd v. Collins, 209 F.3d 486, 537–38 (6th Cir. 2000).
2.
Cross-examination. Perkins argues that his counsel should have objected when the
prosecutor asked Perkins whether he could “think of any reason” that Sergeant Decker would lie
when he said he had ordered Perkins to stop his car on the night of the crime. R.11-9 at 124. Under
Michigan law, “it [is] improper for a witness to comment or provide an opinion on the credibility
of another witness since matters of credibility are to be determined by the trier of fact.” People v.
Buckey, 378 N.W.2d 432, 439–40 (Mich. 1985). But the risk of prejudice here is slender. Whether
Decker asked Perkins to stop was a peripheral point, and the fact that the defendant was given an
opportunity to comment on Decker’s credibility holds little risk of prejudice to Perkins.
3.
Disparaging defense counsel. First, Perkins says that his counsel should have objected when
the prosecutor noted in his opening statement that “maybe [defense counsel] is not thankful for” the
jurors’ service, but that “we know that you made a sacrifice to be here.” R.11-5 at 62. This kind of
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shameless effort to ingratiate oneself to a jury may be in bad taste and may give lawyers a bad name.
But there are tactical reasons for declining to object (remaining above the fray) and a remedy to boot
(disproving the suggestion by thanking the jurors in his opening statement, which defense counsel
did). “[T]rial counsel’s tactical decisions are particularly difficult to attack,” O’Hara v. Wigginton,
24 F.3d 823, 828 (6th Cir. 1994), and choosing whether and when to object to such posturing is
classically one that should not be upset by a federal court on collateral review.
Second, Perkins says that the prosecutor “implied that [defense] counsel was either a liar or
incompetent by saying in front of the jury that he showed him an exhibit during lunch hour, knowing
that he did not.” Perkins Br. at 17. On the third day of trial, the prosecutor represented that he had
shown an exhibit to defense counsel during the lunch hour. Defense counsel responded that he “was
down on the third floor during lunch hour,” suggesting he had not seen the exhibit. R.11-9 at 182.
At that point, the prosecutor showed counsel the exhibit and explained that he had shared it with him
as the jury left for lunch. The record supports the prosecutor’s statements. Just before the court
adjourned at mid-day, the prosecutor told the court, with defense counsel there, about the exhibit.
The prosecutor at any rate did not say that defense counsel was “a liar or incompetent” but merely
said (accurately) what had happened.
Third, Perkins complains about disparaging comments the prosecutor made in his rebuttal
argument, namely that defense counsel “knows how to cast an aspersion on somebody,” that he was
a “wolf in sheep’s clothing,” that he was “a guy who represents a criminal,” that his “character is
known” and that he was paid to represent Perkins. R.11-11 at 67–70, 72, 74. The tit-for-tat
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gamesmanship exemplified by these comments and by the remarks of defense counsel that preceded
them brings no credit to the bar and gives trial judges gray hair. But the Michigan court of appeals
nevertheless reasonably concluded that defense counsel’s failure to object did not violate the Sixth
Amendment.
The key problem with Perkins’ claim is that the prosecutor’s rebuttal remarks did not arise
in a vacuum. Before the prosecutor gave his rebuttal argument, Perkins’ counsel engaged in
borderline conduct of his own during his closing argument. Defense counsel was a former
professional football player, and in his argument he recounted “the two percent” of football players
who would play “the illegal game,” “[h]it you out of bounds” and otherwise play dirty. R.11-10 at
57. Just as the football arena reveals character, trying a case “demonstrates your character. Believe
me,” he said, “if you want to see somebody’s character, just come to court.” R.11-10 at 57.
All of this was prelude to defense counsel’s direct and implied attacks on the character of the
prosecutor and the State’s witnesses. He twice referred to the “two percent” in describing the State’s
case, its lawyer and its witnesses. R.11-11 at 63. He directly accused one police officer who had
testified for the prosecution of being “a sacrificial liar” and of testifying “untruthfully.” R.11-10 at
57. And he called another State’s witness “an angel” who “never tells a lie,” mocking the idea that
he was telling the truth: “Think about those little costumes they have at Christmas time, they put
wings on them, and they put that little halo thing that go around them, the white halo. That’s what
we need to put on Sgt. Wilson. He never tells a lie. I’ve got some other initials I’d put for him, but
I won’t say that.” R.11-11 at 62.
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Context matters. The prosecution’s rebuttal followed on the heels of the defense closing, and
not surprisingly it sought to rebut the charges. The prosecutor noted that Perkins’ counsel, “through
his entire comments to” the jury, “[wa]s essentially scandalizing pretty much everybody in the case,”
“cast[ing] aspersions” and “attack[ing] essentially everybody in the case.” R.11-11 at 67–68. Only
then did the prosecutor call Perkins’ counsel “the wolf in sheep’s clothing” based apparently on the
soft-spoken way in which counsel delivered his criticisms of the State’s witnesses. R.11-11 at 67.
Only then did he say that defense counsel’s “character is known.” R.11-11 at 68. And only then did
he repeatedly mention that defense counsel was paid to represent Perkins. When “objectionable
content was invited by or was responsive to the opening summation of the defense,” that may “not
. . . excuse improper comments,” but it does help “to determine their effect on the trial as a whole.”
Darden, 477 U.S. at 182. Unlike unprovoked comments, these back-and-forth remarks arose in
verbal surroundings that lessened the risk of prejudice to either party.
How in this setting, moreover, would a trial court have responded to an objection by defense
counsel? The two most likely possibilities are these. One is an outright overruling on the ground
that what is sauce for the goose is sauce for the gander, with the trial court telling defense counsel
in open court that he cannot expect to launch an aggressive attack on the character of the State’s
witnesses and the prosecutor without incurring incoming fire on rebuttal. The other possibility is
an admonition to the prosecution to tone it down while again reminding defense counsel that he
engaged in the same kind of conduct and the prosecution is allowed to respond in kind. The risk of
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prejudice in these scenarios runs in the direction of Perkins if his counsel objected and away from
Perkins if he does not.
The prosecutor’s remarks also were isolated. See Carroll, 26 F.3d at 1385. He made one
potentially improper comment during his opening statement—the remark that Maurice Odums
“passed the gold standard test” when he identified Don Perkins in a line-up, R.11-5 at 81–82—and
made a few borderline comments during his rebuttal argument, all in response to comments by
defense counsel. Even when the prosecutor made these comments, context shows that they were not
part of a larger, deliberative strategy to discredit defense counsel. See Carroll, 26 F.3d at 1385.
They were “off-hand remark[s] in a heated trial,” triggered by defense counsel’s charges against the
prosecutor and the State’s witnesses, as opposed to previously “select[ed] inappropriate arguments
. . . use[d] . . . repeatedly during summation.” Bates v. Bell, 402 F.3d 635, 648 (6th Cir. 2005).
The prosecutor’s comments also did not bear on the key issues in the case and had little
possibility of affecting a jury verdict that rested on ample evidence. See Carroll, 26 F.3d at 1385.
Maurice Odums identified Perkins as one of the assailants in a line-up within 24 hours of the crime
and did the same at trial. Police found Perkins near the scene of the crime soon after the shootings.
And when a police sergeant ordered him to stop his car, Perkins sped away and continued to drive
after two other police cars gave chase. At trial, Perkins admitted to being near the scene of the crime
and that he did not stop his car despite the officers’ pursuit. The key piece of evidence was Maurice
Odums’ identification testimony. Yet the prosecutor’s alleged misconduct had nothing to do with
Odums. The prosecutor’s comments did not improperly inflate Odums’ testimony, and they did not
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improperly diminish competing testimony. They were directed at defense counsel, who had just
accused several state witnesses of lying and attacked the character of the prosecutor. The Michigan
court of appeals reasonably held that failure to object in this setting does not establish a cognizable
ineffective-assistance claim.
4.
Unsworn Testimony. Perkins argues that the prosecutor gave unsworn testimony in his
closing argument. “It is improper for a prosecutor, during closing arguments, to bring to the
attention of the jury any purported facts that are not in evidence and are prejudicial . . . . However,
prosecutors must be given leeway to argue reasonable inferences from the evidence.” Byrd, 209 F.3d
at 535.
First, the prosecutor made two comments suggesting that Anthony Patton could have been
the third gunman: (1) When referring to the men who ambushed Hall, Hill and Odums in the
backyard of 14181 Spring Garden Street, the prosecutor said that “a third person who’s never
identified” “might be Anthony Patton,” R.11-10 at 15; and (2) When referring to the same men, he
said, “That’s three guys; Corey Scales, Don Perkins, the unknown person, eventually, supposedly
is Mr. Patton.” R.11-10 at 35. This was a reasonable inference to draw from the evidence. Patton’s
testimony corroborated Perkins’ testimony. And when the prosecution fairly challenged the
truthfulness of Perkins’ testimony, the necessary implication was that Patton had lied as well. Nor,
it bears adding, did the prosecutor affirmatively declare that Patton had been the third gunman. He
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used qualifying language—“might be” and “supposedly”—to draw a fair inference that the man
riding along with Perkins after the shootings might be the third triggerman. It is unclear at all events
how these remarks prejudiced Perkins, as he offers no theory of prejudice on this score.
Second, the prosecutor said that the backyard at 14181 Spring Garden Street was “lit up . .
. by a floodlight,” R.11-10 at 15–16, which allegedly was contrary to the evidence. Yet several
witnesses testified about the light in the backyard. R.11-5 at 108–09 (Odums); R.11-6 at 19–20
(Odums); R.11-6 at 82–83 (Officer William Niarhos); R.11-6 at 87 (Officer Niarhos, describing a
“floodlight”); R.11-6 at 103–04 (Tiffany Hopkins). No doubt there was some testimony to the
contrary, but the prosecutor (like defense counsel) may use the evidence favoring it during argument.
Third, the prosecutor said that, when Perkins drove by the squad car containing Corey Scales,
it was a “classic” instance of a defendant “returning to the scene of the crime,” a statement Perkins
decries because there was no foundation that those who commit crimes return shortly to the scene
of the crime. R.11-10 at 19. But this was a permissible inference to draw from the evidence, giving
counsel a reasonable basis for not objecting to it.
Fourth, Perkins says that the prosecutor unconstitutionally shifted the burden of proof when
he noted that Lena Nixon had not testified and had not corroborated his alibi defense. But while a
prosecutor may not comment on a defendant’s silence, “a prosecutor is entitled to comment on a
defendant’s failure to call witnesses to contradict the government’s case” so long as the prosecutor
does not suggest that the defendant bears the burden of proof. United States v. Clark, 982 F.2d 965,
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968–69 (6th Cir. 1993). The prosecutor did not say or suggest that Perkins bears the burden of proof.
He started his remarks by saying that, faced with the State’s evidence, “if you’re sitting with Mr.
Perkins” you may want to “produce some witnesses that are going to put you somewhere else.”
R.11-10 at 28. To do that, you put on “alibi witnesses.” R.11-10 at 29. But Ms. “Nixon wasn’t one
of those witnesses, and that’s the first thing that I think you begin your analysis on.” R.11-10 at 29.
He thus did not say that Perkins bore the burden of proving his innocence; he said that the failure to
produce Lena Nixon undermined his alibi.
B.
Police Lineup. Perkins says that defense counsel provided ineffective assistance when he
failed to challenge the lineup in which Odums identified Perkins. Only if an “identification
procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification” is there a cognizable challenge to a lineup. Simmons v. United States,
390 U.S. 377, 384 (1968). Perkins’ problem is that he offers no reason why his counsel
underperformed in refusing to object to the lineup. He offers no evidence that the identification
procedure was impermissibly suggestive. And the risk of misidentification was small in view of
Odums’ testimony that he identified Perkins in the lineup because “[h]e was familiar” with him.
R.11-6 at 54–55.
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C.
Eyewitness Testimony. Also unavailing is Perkins’ claim that his attorney should have called
an expert witness to testify about the “inherent problems with eyewitness testimony.” Perkins Br.
at 25. The Constitution does not require defense counsel to pursue every trial strategy imaginable,
whether likely to bear fruit or not. See Engle v. Isaac, 456 U.S. 107, 134 (1982). No precedent
establishes that defense counsel must call an expert witness about the problems with eyewitness
testimony in identification cases or risk falling below the minimum requirements of the Sixth
Amendment. And there is nothing about this case suggesting that such a witness was imperative
here.
VI.
For these reasons, we affirm.
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KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent and would
grant the petition for a writ of habeas corpus with respect to Perkins’s claim that defense counsel was
ineffective for failing to object to the prosecutor’s repeated references to Perkins’s “paid” defense
counsel during rebuttal closing arguments.1
The state court addressed Perkins’s ineffective-assistance-of-counsel claim. Michigan v.
Perkins, No. 250159, 2004 WL 2535107, at *7–8 (Mich. Ct. App. Nov. 9, 2004). Thus, “because
the AEDPA applies to [Perkins’s] petition, we can only consider [his] challenge within the more
limited assessment of whether the state court’s application of Strickland to the facts of this case was
objectively unreasonable.” Washington v. Hofbauer, 228 F.3d 689, 702 (6th Cir. 2000) (citing
Williams v. Taylor, 529 U.S. 362, 408–09 (2000)). With respect to Perkins’s claim that his counsel
was ineffective for failing to object to the prosecutor’s improper comments denigrating defense
counsel,2 the state court relied on its conclusion regarding the underlying prosecutorial-misconduct
claim—that Perkins “was not so prejudiced by these comments that he was denied a fair trial”—to
1
Perkins raised a separate prosecutorial-misconduct claim but admits that the claim is
procedurally defaulted because counsel did not object to the prosecutor’s comments at trial. He
argues that his claim of ineffective assistance of counsel for failure to object constitutes cause and
prejudice to overcome the procedural default. See, e.g., Girts v. Yanai, 501 F.3d 743, 757–58 (6th
Cir. 2007), cert. denied, 129 S. Ct. 92 (2008); Washington v. Hofbauer, 228 F.3d 689, 708 (6th Cir.
2000).
2
There is no question that the prosecutor’s statements attacking defense counsel were
improper. Perkins, 2004 WL 2535107, at *5 (“We conclude that these comments improperly
attacked the credibility of defense counsel and implied that defense counsel did not believe his own
client, and was only making his arguments because defendant paid him.”).
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conclude that “defense counsel’s failure to object to these comments did not amount to ineffective
assistance of counsel.” Perkins, 2004 WL 2535107, at *7.
I conclude, however, that the state court’s analysis of prejudice resulting from the
prosecutor’s misconduct is an unreasonable application of clearly established Supreme Court law.
28 U.S.C. § 2254(d)(1). Specifically, it was unreasonable for the state court to conclude that Perkins
was not prejudiced by the prosecutor’s improper comments because the comments directly
implicated Perkins’s Sixth Amendment right to counsel.
The prosecutor’s arguments amounted to repeated accusations that defense counsel was lying
simply because he was paid to represent Perkins. The prosecutor said:
. . . . This is a guy who represents a criminal, okay.
....
But when you talk about, you know, when is Mr. Mann ever going to get up
and say, “Well, you know what? They got my guy?” You know. That’s his lawyer.
His obligation flows to one person, Don Perkins. Okay.
....
. . . . Now, what Bob Mann does is, he’s a paid lawyer to come in for Don
Perkins. And he’s up here vouching for him.
R.11 (Trial Tr., Vol. IV, at 68–69). The prosecutor referred to the fact that Mann was Perkins’s
“paid” attorney five additional times in his rebuttal, id. at 69–74, and repeatedly made statements
tying the defense’s arguments to defense counsel Mann. See, e.g., id. at 73 (“[W]hen you listen to
his comments on behalf of his client . . . .”); id. at 75 (“It’s offered to you by Mr. Perkins’ lawyer.”).
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Much of the prosecutor’s rebuttal, in fact, was directed towards defense counsel personally. See,
e.g., id. at 75–76 (“Now, if they had guns, Mr. Mann, where are the guns?”); id. at 77–78 (“If that’s
the case, Mr. Mann, you know, why isn’t he [told to identify] Anthony Patton?”).
In its review of habeas claims for prosecutorial misconduct, the Supreme Court has
distinguished misconduct that implicates a constitutional right. Darden v. Wainwright, 477 U.S.
168, 181–82 (1986) (“The prosecutors’ argument did not . . . implicate other specific rights of the
accused such as the right to counsel or the right to remain silent.” (emphasis added)); Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974) (“This is not a case in which the State has denied a
defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel,
Argersinger v. Hamlin, 407 U.S. 25 (1972), or in which the prosecutor’s remarks so prejudiced a
specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial
of that right. Griffin v. California, 380 U.S. 609 (1965).”). “When specific guarantees of the Bill
of Rights are involved, [the Supreme Court] has taken special care to assure that prosecutorial
conduct in no way impermissibly infringes them.” Donnelly, 416 U.S. at 643.
“[T]he right to be represented by counsel is among the most fundamental of rights.” Penson
v. Ohio, 488 U.S. 75, 84 (1988); see also United States v. McDonald, 620 F.2d 559, 564 (5th Cir.
1980) (“The right to counsel is so basic to all other rights that it must be accorded very careful
treatment. Obvious and insidious attacks on the exercise of this constitutional right are antithetical
to the concept of a fair trial . . . .”). Accordingly, “[n]o prosecutor may employ language which
denigrates the right of a criminal defendant to retain the counsel of his choice, or otherwise limits
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Perkins v. McKee
the fundamental due process right of an accused to present a vigorous defense.” Sizemore v.
Fletcher, 921 F.2d 667, 671 (6th Cir. 1990).
The Ninth Circuit, in granting a writ of habeas corpus under pre-AEDPA standards, discussed
the prejudice that results from a prosecutor’s attacks on a defendant’s constitutional right to counsel:
At the outset, we feel it incumbent on us to note that in no situation in a
criminal trial such as this one do we feel the mere act of hiring an attorney is
probative in the least of the guilt or innocence of defendants. Lawyers in criminal
cases are necessities not luxuries, and even the most innocent individuals do well to
retain counsel. Neither is it accurate to state that defense counsel, in general, act in
underhanded and unethical ways, and absent specific evidence in the record, no
particular defense counsel can be maligned. Even though such prosecutorial
expressions of belief are only intended ultimately to impute guilt to the accused, not
only are they invalid for that purpose, they also severely damage an accused’s
opportunity to present his case before the jury. It therefore is an impermissible strike
at the very fundamental due process protections that the Fourteenth Amendment has
made applicable to ensure an inherent fairness in our adversarial system of criminal
justice. Furthermore, such tactics unquestionably tarnish the badge of
evenhandedness and fairness that normally marks our system of justice and we
readily presume because the principle is so fundamental that all attorneys are
cognizant of it. Any abridgment of its sanctity therefore seems particularly
unacceptable.
Bruno v. Rushen, 721 F.2d 1193, 1194–95 (9th Cir. 1983) (internal quotation marks and citations
omitted), cert. denied, 469 U.S. 920 (1984).
The prosecutor also effectively “conveyed to the jury a fundamental misconception of the role
of defense counsel.” United States v. Friedman, 909 F.2d 705, 708–09 (2d Cir. 1990) (reversing
conviction on direct appeal because of prosecutor’s improper statements—including, inter alia, that
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defense counsel “try to get [defendants] off, perhaps even for high fees” and that defense counsel
“will make any argument he can to get that guy off”). In stating that defense counsel’s “obligation
flows to one person, Don Perkins,” R.11 (Trial Tr., Vol. IV, at 68), the prosecutor misled the jury
regarding the basic principle of professional responsibility that an attorney has an obligation not only
to his client but also to the court. See MODEL RULES OF PROF’L CONDUCT 3.3 (Candor Toward the
Tribunal).
The prosecutor exacerbated the prejudice of his misconduct by indicating that he has a
personal history with defense counsel: “And make no mistake about it, Mr. Mann’s been doing this
a long time.” R.11 (Trial Tr., Vol. IV at 67); “We’s [sic] tried cases before. This isn’t the first time
our paths have crossed.” Id. at 68. “[I]mproper suggestions, insinuations, and, especially, assertions
of personal knowledge are apt to carry much weight against the accused when they should properly
carry none.” Berger v. United States, 295 U.S. 78, 88 (1935). Further, in repeatedly addressing
defense counsel personally throughout rebuttal, the prosecutor “encourage[d] the jury to focus on
the conduct and role of [defense counsel] rather than on the evidence of [the defendant’s] guilt.” See
United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005).
The majority points out that the prosecutor’s comments were not related to the key evidence
of Odums’s identification of Perkins and were limited to the rebuttal portion of the prosecution’s
closing argument. But improper comments striking at a defendant’s right to counsel necessarily
strikes at the heart of the case and permeates the entire trial. It is through his attorney that Perkins
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No. 09-1250
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tests the government’s evidence at trial, which is one reason why the right to counsel is so
fundamental in our adversarial system of justice. See Penson, 488 U.S. at 84. The prosecutor’s
repeated references to “paid” defense counsel—made during the last argument heard by the jury
before deliberations—prejudiced Perkins by impairing his ability to present a defense to the jury.
See Bruno, 721 F.2d at 1195.
To be sure, defense counsel delivered his own attacks on the prosecution and their witnesses
during his closing argument, which is relevant “to determine the[] effect [of the prosecutor’s
improper comments] on the trial as a whole.” Darden, 477 U.S. at 182 (citing United States v.
Young, 470 U.S. 1 (1985)). Accordingly, this court has distinguished between personal attacks on
defense counsel and statements about counsel based on “a reasonable inference to be drawn from
defense counsel’s presentation of evidence and argument.” Byrd v. Collins, 209 F.3d 486, 536 (6th
Cir. 2000), cert. denied, 531 U.S. 1082 (2001). “‘Where there is conflicting testimony, it may be
reasonable to infer and accordingly to argue, that one of the two sides is lying.’” Id. at 536 (quoting
United States v. Collins, 78 F.3d 1021, 1040 (6th Cir.), cert. denied, 519 U.S. 872 (1996)). Thus,
commentary on defense counsel’s credibility based on defense counsel’s presentation of the evidence
or argument was warranted; commentary on defense counsel’s credibility based simply on the fact
that Perkins paid counsel to represent him, however, was constitutionally impermissible.
Because the prosecutor’s repeated references to Perkins’s paid defense counsel directly
implicated Perkins’s Sixth Amendment right to counsel, it was unreasonable for the state court to
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conclude that counsel was not ineffective for failing to object. Even if defense counsel did not want
to risk receiving rebuke in front of the jury for his own conduct in closing, “[a]t the very least,”
counsel should ask for a bench conference out of the hearing of the jury to request an appropriate
instruction. Young, 470 U.S. at 13. If defense counsel had asked for an appropriate instruction, “the
jury would have heard from the judge that the prosecutor’s comments called for an improper and
impermissible negative inference for [Perkins’s] exercise of his [Sixth] Amendment rights.” Girts
v. Yanai, 501 F.3d 743, 757 (6th Cir. 2007), cert. denied, 129 S. Ct. 92 (2008). Furthermore,
allowing the prosecutor to attack his client’s exercise of the Sixth Amendment right to counsel
“cannot be characterized as litigation strategy.” Id.; accord Hodge v. Hurley, 426 F.3d 368, 386 (6th
Cir. 2005). Therefore, it was unreasonable for the state court to conclude that defense counsel’s
failure to object—his failure to do anything to attempt to cure the prejudice of the repeated
comments—did not amount to ineffective assistance of counsel.
Finally, this is not a case in which it is reasonable to conclude that the failure to cure such
prejudicial comments implicating Perkins’s fundamental Sixth Amendment right to counsel does not
“undermine confidence in the outcome” of the trial. Strickland v. Washington, 466 U.S. 668, 694
(1984). The evidence against Perkins was not “overwhelming,” Darden, 477 U.S. at 182; rather, the
case hinged on one witness’s identification of Perkins. Perhaps nothing better demonstrates the
“reasonable probability that, but for counsel’s [ineffectiveness], the result of the [trial] would have
been different,” Strickland, 466 U.S. at 694, than the fact that Perkins’s first trial resulted in a hung
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jury. R.11-2 (State Court Docket at 6); cf. Sizemore, 921 F.2d at 671 (noting that the defendant’s
first trial resulted in a hung jury as evidence that the proof of guilt was not overwhelming).
Accordingly, I would reverse the district court’s judgment and grant the petition for a writ
of habeas corpus on Perkins’s claim that his counsel was ineffective for failing to object to the
prosecutor’s repeated denigration of defense counsel’s credibility on the basis that he was “paid” to
represent Perkins. I respectfully dissent.
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