NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1266n.06
No. 11-1232 FILED
Dec 10, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JEFFREY D. TURNER, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
CINDI CURTIN, )
)
Respondent-Appellee. ) OPINION
)
Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*
ROGERS, Circuit Judge. Criminal defendant Jeffrey Turner appeals the denial of
his request for federal habeas relief under 28 U.S.C. § 2254. Following a jury trial, Turner
was convicted of first-degree premeditated murder, felony murder, assault with intent to
commit murder, first-degree home invasion, and felony firearm for the shooting death of his
ex-girlfriend as well as the shooting of her current boyfriend. The district court dismissed
all of Turner’s habeas claims, and certified one matter for appeal—whether the prosecutor’s
comments allegedly alluding to Turner’s failure to testify violated Turner’s constitutional
rights to a fair trial and due process. The district court determined that because Turner did
not object at trial he procedurally defaulted his claim. Moreover, without proof of prejudice,
Turner could not establish cause—namely, ineffective assistance of counsel—to overcome
*
The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
Turner v. Curtin, #11-1232
procedural default. On this basis, the district court properly denied Turner’s request for
habeas relief.
The events giving rise to this case occurred during the early morning hours of August
21, 2000. At that time, Felicia Watson was dating Aradondo Collins. Turner had known
Watson for several years, and the two had previously dated. Watson’s children, who were
in the house at the time of the murder, testified at Turner’s trial. Ten-year-old Charlotte
Watson testified that on the morning that her mother was murdered, both Charlotte and her
mother were asleep in their bedrooms, separated only by a hanging sheet. Charlotte testified
that she saw Turner peek into the bedroom, that she heard four gunshots, and that she then
saw Turner chase Collins out of the house. Chonte Watson, who was eight years old at time
of trial, testified similarly that on the morning of the shooting she saw Turner climbing the
stairs to the bedrooms and that she heard three gunshots.
Aradondo Collins testified that he came over around 11:00 or 11:30 p.m. on the night
of the shootings. While asleep in Watson’s bed, he heard noise from the stairs leading to the
bedrooms. A moment later, Turner confronted Collins and Watson in Watson’s bedroom.
After Watson pushed Turner in an attempt to keep him away from Collins, Turner went
downstairs. A few moments later, Turner returned with a gun and began shooting. Collins
was struck by three bullets as he attempted to leave the house, with Turner following him.
Collins also testified that he saw Turner shoot Watson. Watson was killed by two shots fired
at close range.
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Turner v. Curtin, #11-1232
A jury convicted Turner of first-degree premeditated murder, felony murder, assault
with intent to commit murder, first-degree home invasion, and felony firearm. He was
sentenced to life in prison for the first-degree murder conviction, 30 to 50 years for the
assault conviction, 10 to 20 years for the home invasion conviction, and 5 years for the
felony-firearm conviction.
Turner filed a direct appeal with the Michigan Court of Appeals, raising a number of
claims, including that: (1) “the prosecutor ma[de] improper comment[s] to the jury in [his]
opening statement and closing argument by making comment[s] unsupported by evidence,
commenting on [Turner]’s trial silence, and shifting the burden of proof,” and (2) “[Turner]
was deprived of effective assistance of counsel by trial counsel’s . . . failure to object to
various improper arguments.” R.10-14, Michigan Court of Appeals decision, Page ID #910.
The Michigan Court of Appeals affirmed Turner’s convictions, People v. Turner, No.
237038, 2003 WL 1387056, at *1 (Mich. Ct. App. Mar. 18, 2003), reviewing Turner’s
relevant prosecutorial misconduct claim on appeal for plain error because Turner did not
object during trial. Without much discussion, the Court of Appeals determined that it was
“unlikely that any of the prosecutor’s statements affected the outcome of the trial.” Id. at *2.
The Court of Appeals also held that, with regard to Turner’s ineffective assistance of counsel
claim as it related to counsel’s failure to object to instances of alleged prosecutorial
misconduct, Turner “failed to show prejudice and his claim of ineffective assistance must
fail” because “the prosecutor’s conduct was either proper or had no impact on the outcome
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Turner v. Curtin, #11-1232
of trial.” Id. at *3. The Michigan Supreme Court denied leave to appeal. R. 10-15, Michigan
Supreme Court Decision, Page ID #946.
Turner filed a petition for writ of habeas corpus alleging, among other things, that the
prosecutor committed misconduct during his closing argument by noting Turner’s failure to
testify. In his habeas petition, Turner points to the following three statements as evidence
of the prosecutor’s improper comments about Turner’s failure to testify:
(1) [T]his case is uncontested in terms of the facts of the case and what
happened. R. 10-11, Trial Tr., Page ID #756.
(2) I mean, he’s got to say something. He’s got to come of [sic] with some
excuse. R.10-12, Trial Tr., Page ID #802.
(3) You know, he can make any argument if he [Mr. Feinberg, defense
counsel] wants on behalf of Mr. Turner, but at the end of the day, provides
no evidence in terms of his comments to you. Id., Page ID #803.
The district court held that, because Turner did not object to the prosecutor’s
allegedly improper comments at trial, his claim was procedurally defaulted. R. 22, District
Court Opinion, Page ID #1205-1206. The district court further determined that Turner could
not establish sufficient cause—namely, ineffective assistance of counsel—to excuse the
default. Although the comments were “inappropriate,” and did “not fall within a gray area
between proper and improper,” the district court held that “because the evidence against
[Turner] was overwhelming . . . the Court finds that the state court’s finding that no prejudice
resulted is not an unreasonable application of Strickland.” Id., Page ID #1212. As Turner
also could not demonstrate that the failure to consider his claim would “result in a
fundamental miscarriage of justice,” id. (quoting Coleman v. Thompson, 501 U.S. 722, 750
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Turner v. Curtin, #11-1232
(1991)), federal habeas review was denied. R. 22, District Court Opinion, Page ID #1212.
However, the district court granted a certificate of appealability on this claim.
We need not decide the extent to which AEDPA deference applies in this case to the
prejudice analysis, because an independent review of the record shows Turner was not
prejudiced by defense counsel’s failure to object to the prosecutor’s comment. Turner’s
prosecutorial misconduct claim was therefore procedurally defaulted. Turner’s trial counsel
failed to object to the prosecutor’s comments at trial as required by Michigan’s
contemporaneous-objection rule, and because Turner did not preserve his objection, the
Michigan Court of Appeals reviewed his claim for plain error. Turner, 2003 WL 1387056,
at *1. Because Michigan courts follow the contemporaneous-objection rule, an “adequate
and independent” ground upon which Michigan state courts may rely to foreclose review,
Turner defaulted his claim by failing to follow this applicable procedural rule. See Lancaster
v. Adams, 324 F.3d 423, 436-37 (6th Cir. 2003) (citing Greer v. Mitchell, 264 F.3d 663, 672-
73 (6th Cir. 2001)).
Turner cannot overcome the procedural default of his prosecutorial misconduct claim
because he is unable to establish cause and prejudice or that a fundamental miscarriage of
justice would occur if this court did not hear his claim on habeas review. Even if Turner
established cause “through a showing of counsel’s ineffectiveness in failing to properly
preserve a claim for review in state court,” Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir.
2009) (citing Ege v. Yukins, 485 F.3d 364, 378 (6th Cir. 2007)), he has not shown that he
suffered prejudice or that the outcome of his trial would have been different. “The prejudice
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analysis for . . . procedural default and the prejudice analysis for the ineffective assistance
of counsel argument are sufficiently similar to treat as the same in this context,” Vasbinder,
563 F.3d at 237; thus, “establishing Strickland prejudice likewise establishes prejudice for
purposes of cause and prejudice.” Joseph v. Coyle, 469 F.3d 441, 462-63 (6th Cir. 2006).
Because Turner has not shown ineffective assistance of counsel because he has not shown
prejudice, he also has not established sufficient prejudice to overcome procedural default.
Defense counsel was not ineffective because, even assuming without deciding that
the failure to object to the prosecutor’s comments constituted deficient performance, this
failure did not prejudice Turner’s trial. “[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.” Strickland v. Washington, 466 U.S. 668, 697 (1984). To
establish prejudice under Strickland, Turner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. In this case, the district court correctly found that “because the
evidence against [Turner] was overwhelming,” Turner was unable to prove ineffective
assistance of counsel sufficient to overcome his procedural default.
In light of the overwhelming evidence against Turner, the prosecutor’s comments did
not undermine the jury’s guilty verdict. The victim’s two daughters, who were in their
bedrooms at the time of their mother’s murder and whose rooms were separated from hers
only by a sheet, knew Turner and testified against him. One daughter stated that she saw
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Turner v. Curtin, #11-1232
Turner chase Collins down the stairs immediately following the shooting. Collins, who was
shot by the intruder, also testified against Turner, as did several others. While there may
have been some inconsistencies in the testimony, these were minor and all of the witnesses
agreed that Turner was the shooter. R. 22, District Court Opinion, Page ID #1211. This
overwhelming evidence undermines Turner’s claim that, without the prosecutor’s comments,
there was a reasonable probability that the jury could have found him not guilty. Turner’s
case stands in contrast to two cases where the prosecutor’s comments constituted
misconduct, Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007), and Eberhardt v. Bordenkircher,
605 F.2d 275 (6th Cir. 1979), as the prosecutors’ comments in Girts and Eberhardt could
have made a difference. In Girts, the evidence was “weak and limited,” 501 F.3d at 757,
including inconsistent physical evidence as well as an alibi that the defendant was out of state
at the time of the victim’s death. Similarly, in Eberhardt, the evidence was “far from
‘overwhelming,’” as it relied heavily on eyewitness testimony in a “brief robbery in which
none of the parties knew each other.” 605 F.2d at 279.
Turner is also unable to “demonstrate that failure to consider [his] claim[ ] will result
in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Turner argues that the
prosecutor’s comments on his silence violated his constitutional rights to a fair trial and due
process. Appellant Br. at 6-7. “When a petitioner makes a claim of prosecutorial
misconduct, the touchstone of due process analysis . . . is the fairness of the trial, not the
culpability of the prosecutor. On habeas review, [this court’s] role is to determine whether
the conduct was so egregious as to render the entire trial fundamentally unfair.” Serra v.
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Turner v. Curtin, #11-1232
Mich. Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir. 1993) (citation and internal quotation
marks omitted). That is not the case here. Even if the comments were improper, an issue
we do not decide, the comments were not so egregious as to render the “entire trial
fundamentally unfair,” especially in light of the overwhelming—and consistent—evidence
against Turner.
Because Turner has not shown that defense counsel’s failure to object to the
prosecutor’s comments prejudiced the outcome of his trial, his ineffective assistance of
counsel claim fails. Turner thus cannot establish cause to overcome his procedural default.
For the foregoing reasons, the district court’s denial of Turner’s habeas petition is
affirmed.
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