OPINION & ORDER

R. ALLAN EDGAR, District Judge.

Petitioner filed this § 2254 petition for writ of habeas corpus challenging the validity of his state court conviction for violations of his constitutional rights. In 2009, a jury convicted Petitioner of four counts of criminal sexual assault in the first degree (MICH. COMP. LAWS § 750.520b), and one count of kidnapping-custodial interference (MCL § 750.350a1). PageID.46. Petitioner was sentenced from 270 to 420 months concurrent for four counts of sexual assault, and a concurrent one year sentence for the kidnapping conviction. PageID.9, 46. Petitioner remains in the custody of the Michigan Department of Corrections (MDOC).

After his conviction, Petitioner filed an application for leave to appeal in the Michigan Court of Appeals with appointed counsel. PageID.47. The Court of Appeals denied his application and affirmed his convictions on June 8, 2012. Id. Petitioner then filed an application for leave to appeal to the Michigan Supreme Court, which was denied on October 11, 2012. Id.

Petitioner did not file a motion for relief from judgment in the state trial court, nor did he appeal to the United States Supreme Court. PageID.48-49. Instead, he filed a habeas application in this Court on August 23, 2013. ECF No. 1. Petitioner also filed an amended application on October 9, 2013. ECF No. 3. Petitioner maintains that his convictions were based on violations of his state and federal rights. Petitioner sets forth the following claims for relief:

PageID.2, 51-52, 54 Respondent filed a response to Petitioner's habeas application on May 2, 2014. ECF No. 7. Petitioner has not filed a reply. The matter is now ready for a decision.

I.

Petitioner filed this petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone, 535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas "retrials" and ensures state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas application by a person in state custody shall not be granted in regards to any claim that has previously been adjudicated on the merits in state court unless the adjudication:

28 U.S.C. § 2254(d)(1)-(2).

This Court may only consider "clearly established holdings" of the Supreme Court, not lower federal courts, in analyzing a petitioner's claim under § 2254. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5) it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey, 271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).

A federal habeas court may not find a state adjudication to be "unreasonable" simply because that court decides, in its own judgment, that the relevant state decision applied federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the state court's application of clearly established federal law was "objectively unreasonable"). This Court defers to state court decisions when the state court addressed the merits of petitioner's claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510, 534 (2003) (allowing review of habeas application de novo when state court clearly did not reach the question). When applying AEDPA to state factual findings, factual issues by state courts are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.

After applying the standards under AEDPA to Petitioner's case, this Court concludes that Petitioner has not provided clear and convincing evidence that the state court improperly applied clearly established federal law to the facts of Petitioner's case.

II.

Petitioner raises three claims demonstrating that his constitutional rights to a fair trial, due process of the law, and effective assistance of counsel have been violated. Each is considered individually. While Respondent raises the issue of procedural default, the Court will decide Petitioner's claims on the merits. See Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997) ("Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law."), and Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir. 1997) (deciding against the petitioner on the merits even though the claim was procedurally defaulted)); see also 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").

A. Evidentiary Rulings

Petitioner's first claim is that "[t]he trial judge made multiple erroneous evidentiary rulings which denied Mr. Hammond his due process right to a fair trial." PageID.13. Specifically, Petitioner claims that the judge "abused his discretion by permitting the prosecution to present other bad acts evidence that was not relevant and more prejudicial than probative." PageID.13. The alleged "other acts" include: (1) testimony from Mr. Hammond's cousin claiming that he attempted to have intercourse with her eighteen years prior to the trial date (PageID.17); (2) testimony from Mr. Hammond's sister claiming that he touched her inappropriately years before his trial (PageID.18); and (3) evidence showing Mr. Hammond was convicted of attempted second degree criminal sexual conduct with his sister (PageID.19).

The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly admitted or improperly excluded under state law "is no part of the federal court's habeas review of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Id. at 67-68. Rather, "[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. State-court evidentiary rulings cannot rise to the level of due process violations unless they offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.), cert. denied, 540 U.S. 930 (2003). "[C]ourts have defined the category of infractions that violate fundamental fairness very narrowly." Bugh, 329 F.3d at 512 (internal quotations and citations omitted). Because Petitioner's state law evidentiary claims do not rise to a constitutional level, as required for habeas review, these claims are denied.

To the extent that Petitioner claims his due process rights to a fair trial were violated due to these evidentiary rulings, these claims also fail. The Michigan Court of Appeals reviewed this precise issue, and denied it:

People v. Hammond, No. 296055, 2011 WL 2518932, at *1 (Mich. Ct. App. June 23, 2011). The Michigan Court of Appeals' decision on this issue is thorough and complete, and it does not improperly apply or interpret federal law when applying it to the facts of Petitioner's case. Bailey, 271 F.3d at 655.

According to MCL 768.27a, the prosecutor is permitted to introduce evidence "that the defendant committed another listed offense against a minor" as long as it is relevant. As the appellate court noted, Petitioner's prior "bad acts" with minors were relevant as it showed his propensity to molest children. Hammond, 2011 WL 2518932, at *1. Moreover, "[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence." Bugh, 329 F.3d at 512 (citing Estelle, 502 U.S. at 75 (noting the Court did not hold that admitting prior injury evidence violated due process, meaning habeas relief on that issue was not warranted)), and Spencer v. Texas, 385 U.S. 554, 563-64 (1967) (noting the Court rejected the idea that the Due Process Clause requires excluding prejudicial evidence)). As a result, Petitioner's bad acts claims fail.

B. Prosecutorial Misconduct

Petitioner's next claim is that the prosecutor improperly: (1) "ask[ed] the jury to draw an inculpatory inference from Mr[.] Hammond's failure to deny the sexual assault allegations during direct examination," (2) "ask[ed] Mr. Hammond to comment on the credibility of another witness," (3) "ask[ed] the complainant's biological mother to vouch for her credibility," (4) "suggested that the jury could convict Mr. Hammond of sexual misconduct based on acts that took place after the complainant turned sixteen," (5) "referred to Mr. Hammond as a `registered sex offender,'" (6) "engaged in misconduct by attacking Mr. Hammond's credibility based on his failure to inform jail personnel that he had a tattoo on his penis," and finally that (7) "the cumulative effect of the prosecutor's misconduct denied Mr. Hammond due process of law." PageID.32, 36-39.

Prosecutorial misconduct may, at times, rise to the level of a due process violation, thereby entitling a petitioner to habeas review. Lundy v. Campbell, 888 F.2d 467, 474 (6th Cir. 1989). In order for a petitioner to be entitled to habeas relief on the basis of prosecutorial misconduct, the petitioner must demonstrate that the prosecutor's improper conduct "`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) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982)). In evaluating the impact of the prosecutor's misconduct, a court must consider the extent to which the claimed misconduct tended to mislead the jury or prejudice the petitioner, whether it was isolated or extensive, and whether the claimed misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12 (1985). The court also must consider the strength of the overall proof establishing guilt, whether the conduct was objected to by counsel and whether a curative instruction was given by the court. See id. at 12-13; Darden, 477 U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United States, 295 U.S. 78, 84-85 (1935).

The Michigan Court of Appeals was the last court to review Petitioner's claims of prosecutorial misconduct, which it ultimately denied:

Hammond, 2011 WL 2518932, at **2-4 (citations omitted). The Michigan Court of Appeals' decision denying Petitioner's prosecutorial misconduct claims is thorough and complete; and it does not improperly apply or interpret federal law when applying it to the facts of Petitioner's case. Bailey, 271 F.3d at 655.

Petitioner has not demonstrated that the prosecutor's statement during trial or closing arguments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 180-81 (quoting Donnelly, 416 U.S. at 643) (noting, for example, that calling a defendant an "animal" in closing arguments was not prosecutorial misconduct). "[I]t `is not enough that the prosecutors' remarks were undesirable or even universally condemned"; rather, "[t]he relevant question is whether the prosecutors' comments" infected the trial with unfairness. Darden, 477 U.S. at 181 (citations omitted); see also Wilson v. Mitchell, 250 F.3d 388, 398 (6th Cir. May 14, 2001) (noting the Sixth Circuit "has been reluctant to grant habeas petitions based on improper prosecutorial statements at closing argument."). Here, the prosecutor did not misstate the evidence, and he even informed the jury during opening statements that they can only take the testimony as evidence—not his opinions. PageID.672-673. As a result, Petitioner has failed to show that the prosecutor's statements during trial or closing argument were fundamentally unfair, which means his prosecutorial misconduct claims fail.

C. Ineffective Assistance of Counsel

In Petitioner's final claim, he asserts that his trial attorney was ineffective by failing to object to the aforementioned evidentiary rulings and instances of prosecutorial misconduct. PageID.40-42. In addition, Petitioner claims that his trial attorney was ineffective because he failed to impeach Petitioner's niece in a particular way. PageID.41.

To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691.

Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen v. Pinholster, 563 U.S. 170, 190 (2011); Premo v. Moore, 562 U.S. 115, 122 (2011). In those circumstances, the question before the habeas court is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 89; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the "Supreme Court has recently again underlined the difficulty of prevailing on a Strickland claim in the context of habeas and AEDPA . . . .") (citing Harrington, 562 U.S. at 102).

Again, the Michigan Court of Appeals considered these claims of ineffective assistance of counsel, and denied them on Petitioner's direct appeal:

Hammond, 2011 WL 2518932, at **4-5 (citations omitted). The appellate court did not misapply federal law to the facts of Petitioner's case, or misinterpret federal law when denying Petitioner's claims of ineffective assistance of counsel. Bailey, 271 F.3d at 655.

Petitioner claims that by failing to object to several situations at trial, his attorney prejudiced Petitioner's defense. PageID.40-42. However, Petitioner has failed to first show that his attorney performed deficiently. To constitute deficient performance for a failure to object, defense counsel must so consistently fail to use objections, despite clear reasons for doing so, that counsel's failure to object cannot reasonably have been said to be trial strategy. Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010) (citing Lundgren v. Mitchell, 440 F.3d 754, 774-75 (6th Cir. 2006)). Moreover, in regard to deficient performance as it relates to impeachment or cross-examination of a witness, "courts generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel." Mitchell v. Vasbinder, 644 F.Supp.2d 846, 862 (E.D. Mich. June 11, 2009) (quoting Millender v. Adams 187 F.Supp.2d 852, 870 (E.D. Mich. 2002)). "Impeachment strategy is a matter of trial tactics, and tactical decisions are not ineffective assistance of counsel simply because in retrospect better tactics may have been available." Id. (quoting Dell v. Straub, 194 F.Supp.2d 629, 651 (E.D. Mich. 2002)).

Here, counsel's decision not to object at various times during trial, and not to impeach Petitioner's niece in a certain way, did not constitute ineffective assistance of counsel. The record clearly demonstrates that counsel adequately cross-examined Petitioner's niece (PageID.510-512 (noting counsel asked the niece if she made other allegations of improper sexual contact in the past, to which she responded affirmatively)), and objected numerous times throughout Petitioner's trial (see, e.g., PageID.307-308, 331, 334, 408, 413, 421, 501, 506, 508, 516, 531, 548, 566, 588, 645, 649, 652). As a result, Petitioner has not demonstrated that counsel's performance fell outside the scope of acceptable trial strategy. Strickland, 466 U.S. at 687-88; see also Mitchell, 644 F. Supp. 2d at 862.

Even if he had, Petitioner has not shown that his attorney's performance prejudiced the outcome of his trial. Id. There were twelve witnesses testifying against Petitioner at his trial. ECF No. 8-2; ECF No. 8-3. Moreover, there were two hundred pages of emails that corroborated the prosecution's theory of the case against Petitioner. PageID.635-644. As a result, even if Petitioner's attorney did perform deficiently, Petitioner has not shown that the outcome of his case would have been different given the amount of evidence against Petitioner. Strickland, 466 U.S. at 687-88. Consequently, Petitioner's ineffective assistance of counsel claims fail.

III.

Overall, this Court concludes that all of Petitioner's claims are without merit. Should Petitioner choose to appeal this action, the Court must determine whether a certificate of appealability may be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Each issue must be considered under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484. The Court examined each of Petitioner's claims under the Slack standard and concludes that reasonable jurists could not find that a dismissal of each of Petitioner's claims was debatable or wrong. Therefore, this Court DENIES A CERTIFICATE OF APPEALABILITY as to each issue raised by Petitioner.

For the same reasons the Court dismissed this action, the Court will certify that any appeal by Petitioner from the Court's decision and judgment would be frivolous and not taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any application by Petitioner for leave to proceed in forma pauperis on appeal is hereby DENIED.

In summary, Petitioner's habeas application (ECF No. 3), filed pursuant to 28 U.S.C. § 2254, is DISMISSED WITH PREJUDICE. A judgment consistent with this Opinion and Order will be entered.

SO ORDERED.