John Emerick v. John Prelesnik

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0863n.06

No. 11-1217
FILED
UNITED STATES COURT OF APPEALS Aug 08, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
JOHN PATRICK EMERICK,

Petitioner-Appellant,

v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JOHN PRELESNIK, EASTERN DISTRICT OF MICHIGAN

Respondent-Appellee.

/

BEFORE: CLAY and GIBBONS, Circuit Judges; KORMAN, District Judge.*

CLAY, Circuit Judge. Petitioner John Patrick Emerick, a Michigan state prisoner, appeals

the district court’s order denying his habeas corpus petition filed pursuant to 28 U.S.C. §2254.

Petitioner was convicted of various criminal sexual conduct offenses under Michigan Compiled

Laws (M.C.L.) §750.520b and §750.520c. For the reasons set forth below, we AFFIRM.

BACKGROUND

Petitioner was accused of sexually abusing his two daughters T.E. and K.W. The alleged

victims were under the age of thirteen when the events occurred between 1988 and 1996. Petitioner

married Carla Emerick, the mother of T.E., in 1981 and moved to Port Huron, Michigan in 1985.

*
The Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
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The mother of K.W., Christine Wickings (“Wickings”) met Petitioner in 1990 and moved in with

Petitioner and his current wife Carla in 1991. Petitioner and Carla Emerick divorced and Petitioner

married Wickings. Petitioner and Wickings also later divorced.

At Petitioner’s trial, T.E. testified that she had a good relationship with her father but things

changed when she was five or six years old. T.E. stated that Petitioner engaged in repeated sexual

acts with her, including inappropriate touching and fondling and he also attempted sexual

intercourse. In addition, T.E. stated that she often looked at Playboy magazines with Petitioner. T.E.

testified that Petitioner threatened her if she ever told anyone about the sexual incidents and that he

could go away for a very long time, therefore T.E. remained silent. T.E. lied to her mother,

Children’s Services, and to the police about the abuse. According to T.E., the abuse ended when she

was around age twelve when she told Petitioner to stop.

K.W. testified at trial that Petitioner began touching her inappropriately around age four or

five. Petitioner also told K.W. not to tell anyone about the sexual incidents. K.W. stated that the

abuse happened at least more than ten times but less than 100. T.E. stated that she also witnessed

Petitioner engage in sexual activity with K.W. T.E. observed Petitioner on top of K.W. and saw him

reach up her pajamas. T.E. never reported the incident.

Wickings, K.W.’s mother, testified at Petitioner’s trial that she started to become suspicious

of Petitioner’s behavior toward the children after two separate incidents. On the first occasion,

Wickings testified at Petitioner’s trial that after she returned from the laundry mat she saw Petitioner

enter the kitchen tying his robe. Wickings then went into the bedroom and saw T.E. putting on her

tights. When Wickings asked Petitioner what was going on, Petitioner responded that he had not

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been in the room with T.E., who was playing Nintendo by herself. On the second occasion,

Wickings testified that she noticed that Petitioner suddenly turned off his music. Wickings went

upstairs to investigate and she saw Petitioner coming out of T.E.’s bedroom. Wickings went into

T.E.’s bedroom and found her under the blanket with her pajamas up around her neck. When

Wickings and T.E. were alone, T.E. told Wickings about the sexual abuse. However, T.E. later

denied the abuse and stated that she only spoke of such incidents to see how Wickings would react.

Wickings also confronted Petitioner about her suspicions of child abuse, but Petitioner denied any

wrongdoing and also threatened to take K.W. away if Wickings said anything to his ex-wife, Carla.

Petitioner’s son, Brian Emerick, testified that he also became suspicious of Petitioner’s

behavior. At trial, Brian stated that there were times Petitioner asked him to go outside while

Petitioner and T.E. remained in the house. When Brian would return, he would see T.E. leaving

Petitioner’s room, and Petitioner would be wearing only a robe and T.E. a nightgown. Brian also

noticed that T.E. often acted scared around her father but Brian never told anyone about his

observations of T.E. and Petitioner’s relationship.

In October 1997, Wickings filed a complaint with the Port Huron Police, in which she alleged

that Petitioner sexually abused his children. Detective Elaine Butts of the Port Huron Police

followed up on Wicking’s complaint and testified that when she first spoke with K.W. about the

allegations of sexual abuse, K.W. denied any knowledge of the allegations. In May 2000, Detective

Butts spoke to K.W. a second time, and the detective received information that led to the filing of

the present charges against Petitioner.

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At trial, Petitioner denied all allegations of child abuse. On cross-examination the prosecutor

asked Petitioner whether he had a prior conviction in Florida involving the sexual fondling of a child

under the age of 14, for which he was sentenced to five years probation. The prosecutor asked the

following series of questions:

Q: Would you agree with me, sir, that a person who molests their children would do so in a
way as not to be caught?

A: I can’t say—answer that question because I don’t know about child molesters.

Q: Oh. You don’t know anything about child molesters?

A: Well, other than what they are accused of, yes.

Q: You have no familiarity with accusations –

(6/21/01 Trial Tr., Page ID # 750–51.) Petitioner’s counsel objected to this line of questioning

arguing that the prejudicial affect of allowing this evidence outweighed any probative value.

Petitioner’s counsel stated the following concern:

Counsel: Your Honor, I believe that this—what I anticipate the line of testimony—or
line of questioning to be and based upon the conversations we had in chambers this
morning to, to concern a 1985 matter in Florida . . . where a no contest plea was
tendered. There was no adjudication of guilt. There was no—I believe the record
says there was no adjudication of a sentence. There was a [probation and dismissal].

(6/22/01 Trial Tr., Page ID # 775.)

The state trial court ruled that the prosecutor could pursue questioning on Petitioner’s prior

Florida conviction to determine Petitioner’s credibility. Petitioner testified that the sexual fondling

case was resolved with a nolo contendere plea, five years of probation, and no conviction.

At the close of the trial, the judge gave the jury the following instructions:

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You’ve heard evidence that was introduced to show that the Defendant was
previously involved in an incident in Florida. This evidence was admitted for a
limited purposes, that is, to consider whether you believe the Defendant testified as
a truthful witness in response to the Prosecutor’s witness-question. You must not
consider this evidence for any other purposes. For example, you must not decide that
it shows the Defendant is a bad person or the Defendant is likely to commit crimes.
You must not convict the Defendant here because you think he is guilty of other bad
conduct.

(Id. at Page ID # 869.) The judge instructed the jury that they could use the evidence regarding

Petitioner’s prior offense involving the sexual molestation of a child only for purposes of

determining Petitioner’s credibility as a witness and not to determine Petitioner’s character or decide

his propensity to commit a crime.

On June 22, 2001, a jury in the St. Clair County Circuit Court found Petitioner guilty of seven

counts of first degree criminal sexual conduct under Mich. Comp. Laws § 750.520b(1)(a) (sexual

penetration of a person under the age of thirteen), and one count of second degree criminal sexual

conduct, Mich. Comp. Laws § 750.520c(1)(a) (sexual contact with a person under the age of

thirteen). The court sentenced Petitioner to concurrent terms of 30 to 60 years in prison for the first

degree criminal sexual conduct conviction and 10 to 15 years for the second degree criminal sexual

conduct conviction.

Petitioner appealed his conviction and sentence to the Michigan Court of Appeals. See

People v. Emerick, No. 236065, 2002 WL 31947932 (Mich. Ct. App. Dec. 3, 2002.) The court

affirmed Petitioner’s convictions and sentences. The Michigan Supreme Court denied leave to

appeal. See People v. Emerick, 468 Mich. 916 (2003).

Petitioner filed a motion for relief from judgment on June 1, 2004. Petitioner’s counsel

moved to disqualify the trial judge after a confrontation over counsel’s attempt to view the trial

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videotapes. The trial judge denied the motion, and the chief judge denied a subsequent defense

motion to disqualify all the judges on the circuit court bench. Petitioner then filed interlocutory

appeals. The Michigan Court of Appeals denied leave to appeal for failure to persuade the court of

the need for immediate appellate review. The Michigan Supreme Court also denied leave to appeal.

See People v. Emerick, 477 Mich. 973 (2006).

The trial court then denied Petitioner’s motion for relief from judgment. Petitioner appealed

to the Michigan Court of Appeals, which denied leave to appeal for failure to meet the burden of

establishing entitlement to relief under Michigan Court Rule 6.508(D). Petitioner did not appeal that

decision.

On September 18, 2008, Petitioner filed a petition for a writ of habeas corpus in the United

States District Court for the Eastern District of Michigan pursuant to 28 U.S.C. § 2254. Petitioner

later filed an amended petition, which raised five claims: (1) the trial court’s decision to admit

evidence of a 1985 out-of-state conviction constituted an abuse of discretion; (2) the trial court

abused its discretion by joining his two cases, which denied Petitioner a fair trial, and Petitioner’s

counsel was ineffective for failing to object and move for severance; (3) Petitioner was denied a fair

trial due to prosecutorial misconduct; (4) Petitioner was entitled to judicial disqualification due to

judicial bias; and (5) Petitioner’s counsel was ineffective before and during trial. The district court

denied relief on all claims. The district court granted Petitioner a certificate of appealability on his

first three claims, but denied him a certificate as to claims four and five.

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DISCUSSION

I. Standard of Review

Because Petitioner filed his petition for writ of habeas corpus after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), AEDPA governs our review.

We review the district court’s conclusions of law de novo and its factual findings for clear error for

a denial of a petition of habeas corpus. Haliym v. Mitchell 492 F.3d 680, 689 (6th Cir. 2007). Under

the AEDPA, a federal court may not grant a writ of habeas corpus to a state prisoner with respect to

any claim adjudicated on the merits unless: (1) the state’s court decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” 28 U.S.C. § 2254(d)(1), or (2) the state court’s decision “was based on an

unreasonable application of the facts in light of the evidence presented in the State court

proceedings.” § 2254(d)(2).

A state court’s decision is “contrary to” clearly established federal law under § 2254(d)(1)

“if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme] Court has on a set

of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). An

“unreasonable application” occurs when “the state court identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id. A federal habeas court may not find a state court decision unreasonable

“simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. The AEDPA

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standard “is a difficult one to meet” and “demands that [state court] decisions be given the benefit

of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotations and citations

omitted). We may grant habeas relief if the state court decision was an “objectively unreasonable”

application of clearly established federal law. Williams, 529 U.S. at 409. A habeas court must

presume that the state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1).

II. Analysis

A. Petitioner’s “Other Bad Acts” Evidence

Petitioner claims that the trial court abused its discretion when the trial court allowed the

prosecutor to question Petitioner about his 1985 no-contest plea, involving the sexual fondling of

a child under the age of 14, for which he was sentenced to five years probation. Petitioner argues

that neither his character; “nor any trait of character, were an essential element of the charged

offenses of first degree criminal sexual conduct” and such evidence was in violation of MRE

404(a)(1) or Fed. R. Evid. 404(a) and also a violation of his due process rights. The district court

adjudicated Petitioner’s claim on the merits and subsequently denied relief on the basis that his

evidence claim is a matter of state evidentiary law and Petitioner failed to present a constitutional

question that would warrant federal habeas relief.

We have “held that ‘errors in the application of state law, especially rulings regarding the

admission or exclusion of evidence’ are usually not cognizable in federal habeas corpus.” Sandoval

v. Toledo Correctional Inst., 409 F.App’x 847, 850 (6th Cir. 2010) (quoting Coleman v. Mitchell,

244 F.3d 533, 542 (6th Cir. 2001)). To the extent Petitioner’s state law evidence claim attempts to

assert a federal constitutional violation of his due process rights, “we review [the claim] under the

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general due-process standard: whether the defendant was denied a fundamentally fair trial.” Post v.

Bradshaw, 621 F.3d 406, 427 (6th Cir. 2010).

Even applying the general due process standard, Petitioner’s claim cannot prevail. The

Michigan Court of Appeals concluded that the other bad acts evidence was improperly admitted but

the court also determined that the evidence was not prejudicial to Petitioner. We agree. The

prosecutor sought to question Petitioner on the Florida plea for the limited purpose of impeaching

his credibility after Petitioner testified that he had no knowledge of matters concerning a child

molestation charge. It is clear from the record that the judge considered the relevancy of the

evidence as well as its prejudicial value. In making this determination, the judge explicitly instructed

the jury to only consider the evidence for the sole purpose of whether the “Defendant testified as a

truthful witness in response to the Prosecutor’s witness-question.” The trial court’s limiting

instruction mitigated any potential risk of prejudice to Petitioner.

Furthermore, there is no evidence to suggest that the state court’s reasoning was contrary to

clearly established federal law. Petitioner claims that the Supreme Court’s decisions in Dowling v.

United States and Old Chief v. United States support his argument that propensity evidence in the

form of other bad acts violates due process. Those cases, however, do not prohibit the admission

of other bad acts evidence for purposes of establishing the credibility of a witness. In Dowling, the

Supreme Court addressed the issue of whether the admission of testimony regarding a prior robbery

charge of which Dowling was acquitted, violated Dowling’s due process rights to a fundamentally

fair trial. Dowling v. United States, 493 U.S. 342, 352–54 (1990). The Supreme Court held that the

admission of Dowling’s prior robbery charge under Rule 404(b) did not violate the Due Process

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Clause. Specifically, the Court found that the evidence was akin to modus operandi and thus used

to establish the identity of the perpetrator and not to prove disposition. Id. at 348–52, 354. The

Court determined that the evidence was “at least circumstantially valuable in proving petitioner’s

guilt.” Id. at 353. Furthermore, the trial court provided a limiting instruction to the jury about the

use of the evidence. Id. The Supreme Court held in Old Chief that the district court erroneously

allowed the prosecution to use the full record of the defendant’s prior conviction of assault resulting

in serious bodily injury, in violation of 18 U.S.C. § 1154, to prove the element of a prior felony

conviction necessary for his unlawful possession of a firearm charge under § 18 U.S.C. 922(g)(1).

519 U.S. 172, 174–78, 190–92 (1997). Petitioner’s case, however, is distinguishable from Old Chief

because Old Chief did not address whether the inclusion of prior acts testimony gave rise to a

constitutional violation. Similarly the two cases relied upon in this Circuit—United States v. Lucas

and Bey v. Bagley— are also inapposite to the case before us. In both cases this Circuit conducted

a balancing analysis pursuant to Rule 404(b) to determine whether the probative value of the other

bad acts evidence substantially outweighed the danger of any prejudicial effect. In Lucas, this

Circuit rejected the defendant’s attempted use of a third party’s prior drug conviction because the

evidence was to be used for purposes of proving the third party’s propensity to sell drugs and was

therefore prejudicial. United States v. Lucas, 357 F.3d 599, 606 (6th Cir. 2004). In this case, the

prosecutor’s use of the evidence is not for purposes to prove propensity but to impeach Petitioner’s

credibility. In Bey, this Circuit held that although the admission of the defendant’s other acts

evidence was prejudicial to his defense, it was not unfairly prejudicial because the evidence was

highly probative to prove the murderer’s identity and therefore could be admitted at trial. Bey v.

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Bagley, 500 F.3d 514, 522 (6th Cir. 2007). In this case, the trial court mitigated any potential

prejudice to the Petitioner through its instruction to the jury. Because the trial court’s admission of

Petitioner’s “other acts” evidence was not prejudicial or offensive to “some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as fundamental” Montana v.

Egelhoff, 518 U.S. 37, 43 (1996) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977))

(citations omitted), Petitioner cannot prove an unreasonable application of federal law necessary to

warrant habeas relief.

B. Joinder of T.E. and K.W.’s Cases

In his second claim for habeas relief, Petitioner argues that the prosecution abused its

discretion when it joined T.E and K.W.’s cases together in one information, denying him a fair trial.

Petitioner further claims that trial counsel’s failure to timely object and move for severance

constituted ineffective assistance of counsel and also denied Petitioner the right to a fair trial.

Petitioner, however, procedurally defaulted this claim. There are two ways in which a claim

may be procedurally defaulted. First, a petitioner may fail “to comply with state procedural rules in

presenting his claim to the appropriate state court.” Williams v. Anderson, 460 F.3d 789, 806 (6th

Cir. 2006). Second, a petitioner may fail “to raise a claim in state court, and pursue that claim

through the state’s ordinary appellate review procedures.” Id. (internal quotation marks and citation

omitted).

In this case, Petitioner admitted that he procedurally defaulted his claim after he conceded

to the Michigan Court of Appeals that he did not raise this issue to the Michigan trial court. Emerick,

2002 WL 31947932, at *2. Petitioner acknowledged to the court that he did not file a motion to

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sever the two cases and he further does not present any argument that the Michigan Court of Appeals

decision, which found that in the absence of a motion to sever there was no abuse of discretion by

the prosecution to permit joinder of the two cases, was contrary to clearly established federal law.

The Michigan Court of Appeals concluded that Petitioner failed to show a “court rule violation, or

prosecutorial abuse of discretion” and declined to review the claim on the merits. Id. Although

Petitioner may overcome a procedural default by a showing of cause for the default and prejudice,

he has not demonstrated either standard to excuse the default. See Coleman v. Thompson, 501 U.S.

722, 735 (1991). Because we may not grant a habeas petition if a Petitioner fails to exhaust “the

remedies available in the courts of the State,” 28 U.S.C. § 2254(b)(1), we are thus barred from

federal habeas review.

Petitioner also asserts that his trial counsel rendered ineffective assistance by failing to file

a motion to sever. While the Michigan Court of Appeals declined to address Petitioner’s claim to

sever the two charges on the merits, on the issue of ineffective assistance of counsel, the state court

of appeals found that “[d]efendant had not established that counsel was ineffective in not filing a

motion to sever.” Emerick, 2002 WL 31947932, at *2. The court of appeals reasoned that

Petitioner’s counsel’s decision not to file a motion to sever may have been a strategic decision but

nonetheless determined that Petitioner’s counsel was not ineffective for failing to move for severance

of the two cases. Id.

Ineffective assistance of counsel claims are governed by the framework set forth in Strickland

v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court stated that a Defendant must

first show that:

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counsel’s performance was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process that renders the result
unreliable.

466 U.S. at 687. Under the first prong of the analysis, we must determine whether Petitioner’s

“counsel’s performance was deficient.” Id. Petitioner has the burden to “identify the acts or

omissions of counsel that are alleged not to have been the result of reasonable professional

judgment.” Strickland, 466 U.S. at 690. Under the second prong of the Strickland analysis, we must

find a “reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.” Black v. Bell, 664, F.3d 81, 103 (6th Cir. 2011) (citing

Strickland, 466 U.S. at 694). Actions or omissions by counsel that “might be considered sound trial

strategy” do not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 689 (internal

quotation marks omitted). “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in the same way.”

Id.

In the habeas context, we apply the Strickland framework and conduct a “doubly deferential

judicial review” to evaluate an ineffective assistance of counsel claim “under the § 2254(d)(1)

standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). “The pivotal question is whether the

state court’s application of the Strickland standard was unreasonable.” Harrington, 131 S.Ct. 770,

785 (2011). Thus, in light of Harrington, our analysis is limited to whether the Michigan Court of

Appeals decision constituted “an unreasonable application of federal law.” Id.

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The state appellate court’s decision in this case was not an unreasonable application of

federal law. Petitioner’s counsel’s decision to permit joinder of the two child abuse cases did not

amount to ineffective assistance of counsel. The Michigan Court of Appeals held that Petitioner’s

counsel’s failure to move for a severance may have reflected a strategic judgment. Specifically,

counsel may have concluded that “rather than face two trials, [Petitioner] would be better off trying

to create reasonable doubt in one jury, resulting in an acquittal of all charges.” Emerick, 2002 WL

31947932, at *2. This holding does not constitute an unreasonable application of Strickland under

the extraordinary deferential standard of review applicable here. See Lockyer v. Andrade, 538 U.S.

63, 75 (2003) (noting that even “[t]he gloss of clear error fails to give proper deference to state courts

by conflating error (even clear error) with unreasonableness.”) (citations omitted). Therefore,

Petitioner cannot prevail on his ineffective assistance of counsel claim.

C. Prosecutorial Misconduct

Finally, Petitioner argues that his constitutional right to a fair trial was violated by the

prosecutor’s misconduct during closing argument. Petitioner contends that the prosecutor

improperly interjected Petitioner’s character into her remarks, thereby unfairly prejudicing the jury

against him.

In evaluating a claim of prosecutorial misconduct, “[t]he relevant question is whether the

prosecutors’ comments so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotations

omitted).

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In this case, Petitioner challenges the prosecutor’s comments at closing argument and

contends that the prosecutor “sought to persuade the jury that he lived in a sex-charged and

alternative lifestyle, inappropriate and different than ‘everybody else.’” (Pet’r’s Br. 32.) At closing

argument, the prosecutor made the following statements:

Now, the fact that he had a girlfriend and he got her pregnant in the Rawlins house
while they’re sharing a bedroom with the wife and the husband, hey, may be
interesting information, maybe lends context to this whole scenario, but do I need to
prove that beyond a reasonable doubt? No. . . .

The fact that they lived in the Rawlins house and then on 12th Street and that they
were part of almost communal living, it sounds like, sharing beds and people coming
into bedrooms in the middle of the night and all this other stuff, although it helps you
understand what the heck’s going on, it’s not my requirement to prove it beyond a
reasonable doubt.

(6/22/01 Trial Tr., Page ID # 832–33.)

Petitioner’s counsel refuted the prosecutor’s accusations concerning Petitioner’s living

situation and stated to the jury that a person may not be convicted of a crime on the basis of their

living situation. On rebuttal, however, the prosecutor again referenced Petitioner’s living situation

as something beyond a “dysfunctional family” and a place where there are “no appropriate

boundaries.”

We agree with the Michigan Court of Appeals conclusion that the prosecutor’s remarks at

closing arguments regarding Petitioner’s living situation were improper because the comments were

unrelated to the criminal sexual conduct charges. But any misconduct by the prosecution does not

satisfy the Darden test for a due process violation as none of the statements were “so flagrant as to

warrant reversal.” Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005). In addition, none of the

statements were directed at witness credibility nor did these statements express the prosecutor’s

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personal belief in Petitioner’s guilt. See Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005) (finding

that “it is patently improper for a prosecutor either to comment on the credibility of a witness or to

express a personal belief that a particular witness is lying”). In reviewing the prosecutor’s closing

argument, it is clear from the record that the prosecutor primarily kept the focus of the statements

on proving the elements of the alleged crimes. The statements set forth above were not comments

on the credibility of the witnesses and thus did not deprive Petitioner of a fair trial. The prosecutor’s

misconduct did not “so infect [] the trial with unfairness as to make the resulting conviction a denial

of deu process.” Darden, 477 U.S. at 181 (internal quotation marks omitted). The state court’s

determination that the prosecutor’s misconduct did not deprive Petitioner of a fair trial was not

unreasonable.

In summary, Petitioner is unable to demonstrate that the trial court violated clearly

established law when it permitted testimony concerning his 1985 Florida no-contest plea on a child

molestation charge for purposes of determining Petitioner’s credibility. Further, Petitioner

procedurally defaulted his claim to sever the two cases and thus his claim is not cognizable on

habeas review. In addition, Petitioner’s counsel’s refusal to sever the two cases did not constitute

ineffective assistance of counsel. Finally, the prosecutor’s conduct during closing argument did not

deny Petitioner a right to a fair trial. Therefore, the state appellate court’s rejection of his claims was

not an unreasonable application of clearly established federal law as determined by the Supreme

Court or an unreasonable determination of the facts; and Petitioner is not entitled to habeas relief on

any of his claims.

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CONCLUSION

For these reasons, we AFFIRM the district court’s order denying the petition for writ of

habeas corpus.

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