NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0135n.06

                                              No. 09-1199

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                      FILED
                                                                                        Mar 03, 2010
OMAR WARLICK,                                                                     LEONARD GREEN, Clerk

               Petitioner-Appellant,
                                                       ON APPEAL FROM THE
v.                                                     UNITED STATES DISTRICT
                                                       COURT FOR THE EASTERN
KENNETH ROMANOWSKI, Warden                             DISTRICT OF MICHIGAN

            Respondent-Appellee.
____________________________________/

BEFORE: SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Omar Warlick (“Warlick”) is a Michigan inmate

convicted of felony-murder and sentenced to life in prison. We AFFIRM the district court’s denial

of his petition for writ of habeas corpus.

                                             I. Background

       This petition arises out of the murder of Bryan Fortune (“Fortune”), the owner of the Beehive

Lounge in Detroit. He was killed during a robbery or attempted robbery just before 6:00 a.m. on

September 4, 2002, in his apartment that sits above the Beehive Lounge. According to the testimony

of Erin Walker (“Walker”), Fortune’s girlfriend, two men entered the apartment through a door that

leads to the roof. She saw that one man had a gun, but she could not tell if the second one was

armed. When the men entered, she ran out the front door of the apartment. Upon leaving, she heard

two gunshots and called 911 from a gas station across the street. The police arrived shortly thereafter

and found Warlick hiding in the Beehive Lounge’s DJ booth about twenty feet from the murder
weapon—a nine-millimeter gun. The police placed Warlick under arrest at approximately 6:30 a.m.

Witnesses saw a second man, who was never caught, exit the building and flee the scene.

       At 8:50 a.m., Warlick began speaking with Officer Anthony Jackson (“Officer Jackson”).

At 10:00 a.m., after speaking with Officer Jackson for over an hour, Warlick agreed to provide a

signed statement recounting his version of the events that morning. The police performed a gunshot

residue test on Warlick at some point during this conversation.

       According to his statement, Warlick did not shoot Fortune. A man named Spoon shot

Fortune with a nine-millimeter owned by Spoon. Spoon drove a 2000 red Cherokee Sport. Spoon

picked Warlick up early that morning around 12:30 a.m. or 1:00 a.m. Spoon said to him, “that old

girl put him on a lick,” and that they needed to get a ladder so they could climb on a roof. Spoon left

to get a ladder, and once he returned, they went to the Beehive Lounge, where they waited and

watched as people left. After a few people had departed, they leaned the ladder against the building

and climbed onto the roof. Once on the roof, they looked inside the apartment and observed the

owner of the bar and a girl arguing. The girl looked out the door, saw Warlick, and ran. At that

point Spoon walked into the apartment and Warlick followed in after him. Spoon told the man to

get to the floor, the man “came at” them, and Spoon shot him. They then began looking for the safe,

eventually going into the bar portion of the Beehive Lounge. There, Warlick grabbed the cash

register, and Spoon kept looking for the safe. Eventually, they noticed that the police had arrived.

They ran to the back of the bar to flee but could not exit the building. Warlick then hid in the DJ

booth, and Spoon ran out the front door. Warlick did not know what Spoon did with the gun or who

the girl was who set up the lick. He speculated that it was the girl in the room with Fortune. He

stated that the plan was “to go in there, hit the club, get the money and get out. The girl left all of


                                                  2
the doors open.” He did not know that Spoon had a gun, and he never would have participated in

the robbery if he had known Spoon would shoot someone.

       The State charged Warlick with first-degree felony murder. The alternative theories of the

State’s case were that Warlick either shot Fortune or aided and abetted the shooter. The trial court

held an evidentiary hearing prior to trial, where Warlick and Officer Jackson testified, to consider

whether to suppress Warlick’s statement. The judge held that the statement was admissible.

       At trial, the State’s witnesses included Walker and multiple police officers who were

involved in the investigation. Warlick’s statement was entered into evidence, as were the results of

the gunshot residue tests administered on Warlick and Walker. Residue was found on Warlick’s

forehead, face, hands, and clothing. Expert testimony was presented that the residue indicated that

Warlick either shot Fortune or was in very close proximity to the gun when it was fired.

       The only defense witness was Officer Michael Carter. He testified that he examined a red

Jeep Cherokee, found some latent fingerprints and a live nine-millimeter bullet in the console

between the two front seats, and took photographs of the vehicle. The officer did not know who

owned the vehicle or whether the fingerprints were traceable. Warlick did not testify. The

statements of two res gestae witnesses were entered into the record by stipulation: both witnesses

said they heard two gun shots. One of the two witnesses said he saw someone flee in “a red truck,

Jeep, Jimmy or something.”

       The jury convicted Warlick of first-degree felony murder, and he was sentenced to life in

prison. The Michigan Court of Appeals upheld his conviction on direct appeal, People v. Warlick,

No. 247213, 

(Mich. Ct. App. Jul. 29, 2004), and the Michigan Supreme Court

declined to review the decision. People v. Warlick, 

(Mich. 2005) (table).


                                                 3
       Warlick then filed this nine-claim habeas petition before the Eastern District of Michigan

pursuant to 28 U.S.C. § 2254. The district court dismissed three of Warlick’s claims for failure to

exhaust state appeals. The claims dismissed were improper (1) jury instruction, (2) endorsement of

a State witness, and (3) admission of a 911 tape. The district court later denied his six other claims

after the case was transferred to a new judge. Warlick v. Romanowski, No. 06-10252, 

(E.D. Mich. Jan. 14, 2009). Warlick appeals. He alleges (1) insufficiency of convicting

evidence, (2) improper admission of his statement to police, (3) improper withholding of evidence,

(4) prosecutorial misconduct and ineffective assistance of counsel, (5) deprivation of his right to

testify and ineffective assistance of counsel, and (6) erroneous dismissal of three claims for failure

to exhaust available state appeals.

                                           II. Analysis

                                      A. Standard of Review

       Warlick’s petition is subject to review under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). He is entitled to the writ of habeas corpus if the state court’s adjudication

of his claim on the merits either:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or
       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The decision of a state court is contrary to clearly established federal law when

the state court reaches an opposite conclusion than the one decided by the Supreme Court on a

question of law, or when the state court decides a case differently than the Supreme Court on a set

of materially indistinguishable facts. Williams v. Taylor, 

, 405 (2000). A state court


                                                  4
has made an unreasonable determination of the facts when it identifies the correct governing

principle from the Court’s decisions but unreasonably applies the principle to the facts of the case.

In an appeal of a federal habeas proceeding, this court reviews the district court’s legal

conclusions de novo and its factual findings for clear error. Lucas v. O'Dea, 

, 416 (6th

Cir. 1999).

                              B. Sufficiency of Convicting Evidence

        Warlick argues that the State presented insufficient evidence at trial to sustain a conviction,

in violation of Jackson v. Virginia, 

(1979). Under the Jackson standard, a due process

violation has occurred “if it is found that upon the record evidence adduced at the trial no rational

trier of fact could have found proof of guilt beyond a reasonable doubt.” 

To determine

whether Warlick merits habeas relief, this court must employ deference at two different levels:

“First, deference should be given to the trier-of-fact’s verdict, as contemplated by Jackson; second,

deference should be given to the Michigan Court of Appeals’ consideration of the trier-of-fact's

verdict, as dictated by AEDPA.” Tucker v. Palmer, 

, 656 (6th Cir. 2008) (citing

Parker v. Renico, 

, 448 (6th Cir. 2007)).

        This court must analyze Warlick’s claim with explicit reference to the substantive elements

of the criminal offense. 

n.16. The elements of felony murder in Michigan

are:

        (1) the killing of a human being, (2) with the intent to kill, to do great bodily harm,
        or to create a very high risk of death or great bodily harm with knowledge that death
        or great bodily harm was the probable result [i.e., malice], (3) while committing,
        attempting to commit, or assisting in the commission of any of the felonies
        specifically enumerated in [the statute, including armed robbery].

People v. Carines, 

, 136 (Mich. 1999) (quoting People v. Turner, 

,


                                                   5
732 (Mich. Ct. App. 1995)).

       Warlick’s argument fails because the State presented sufficient evidence to support the jury’s

verdict under either theory of the case, and the Michigan Court of Appeals’ consideration of this

issue reasonably applied the principles found in Jackson. First, the jury could have believed that

Warlick shot Fortune, which would indicate that he had an intent to kill. The evidence presented at

trial supported this theory: Warlick admitted that he participated in the robbery, the police found him

hiding close to the murder weapon, and the gunshot residue test revealed residue on his hand, face,

and clothes.

       Second, the jury could have inferred that Warlick possessed malice under the aiding and

abetting theory. The facts and circumstances of a killing can give rise to an inference of malice. 

a felony murder case, the Michigan Supreme Court held that a jury can infer that a

defendant acted with malice, even if the defendant did not personally use the murder weapon, if the

“defendant set in motion a force likely to cause death or great bodily harm.” 

admitted

participant in the planning and execution of the robbery, the jury could have reasonably inferred that

Warlick knew Spoon would be armed. At a minimum, the jury could have deduced that Warlick saw

a gun in his partner’s hands right before they entered the apartment since Walker testified that a gun

was drawn when they entered.

                         C. The Admissibility of Warlick’s Confession

       Warlick argues that his statement was a product of coercion. For his statement to have been

admissible, Warlick had to “voluntarily, knowingly and intelligently” waive his right to remain

silent. Miranda v. Arizona, 

, 444 (1966). To make this determination, this court must

look at the totality of the circumstances to ascertain whether Warlick made an uncoerced choice and


                                                  6
whether he possessed the required level of comprehension. Moran v. Burbine, 

, 421

(1986) (quoting Fare v. Michael C., 

, 725 (1979)). Factors to consider in this analysis

include “the age, education and intelligence of the suspect; whether the suspect was advised of his

Miranda rights; the length of the questioning; and the use of physical punishment or the deprivation

of food, sleep or other creature comforts.” Jackson v. McKee, 

, 433-34 (6th Cir. 2008)

(citing Schneckloth v. Bustamonte, 

, 226 (1973)).

       The Michigan courts reasonably determined that Warlick’s statement was not a product of

coercion. At the suppression hearing on this issue, Officer Jackson and Warlick testified about the

events that led to the statement. Warlick testified that he was promised that the police would

mention his help to the prosecutor if he cooperated. Officer Jackson testified that no threats,

coercion, or promises were made to gain Warlick’s cooperation. Based on this testimony and the

judge’s own observations, the judge decided that the statement was admissible. The judge noted that

Officer Jackson thoroughly instructed Warlick of his rights, Warlick’s demeanor and educational

level made it appear that he was knowledgeable about his rights, and Warlick gave his statement

freely, voluntarily, and knowingly. The Michigan Court of Appeals deferred to the trial judge’s

credibility determination and employed a reasonable analysis under Miranda and its progeny to

support the admittance of Warlick’s statement.

                                  D. Suppression of Evidence

       Warlick argues that the State suppressed evidence in violation of Brady v. Maryland, 

(1963). To prevail on his Brady claim, Warlick must demonstrate that (1) the evidence in

question is favorable, (2) the State suppressed the relevant evidence, and (3) the State’s actions

resulted in prejudice. Strickler v. Greene, 

, 281-82 (1999). To support his Brady claim,


                                                 7
Warlick contends that a delay in turning over material encompassed by a discovery order inhibited

his counsel’s ability to provide an effective defense. While it is true that a discovery order for

supplemental discovery was granted on November 4, 2002, and that the State did not fully comply

with the terms of the order, Warlick’s claim fails to the extent that he suggests that the violation of

the discovery order itself supports his Brady claim. See Colston v. Burke, 

, 125 (6th

Cir. 2002) (holding that a violation of a state discovery order is not a cognizable habeas claim).

Warlick does not articulate which pieces of evidence within the discovery order support his Brady

claim. Even assuming that it would be some or all of the evidence encompassed by the discovery

order, Warlick’s claim still fails because the Michigan Court of Appeals reasonably applied Brady

to hold that Warlick had not established that any of the evidence in question was favorable to his

case.

        Additionally, the Michigan Court of Appeals reasonably determined that Warlick had failed

to establish that he was prejudiced by the failure to turn over evidence, as required by Brady. None

of the evidence encompassed by the discovery order, even when considered collectively, suggests

that the proceedings would have been different if the evidence had been disclosed earlier. See

Johnson v. Bell, 

, 475 (6th Cir. 2008) (noting the Supreme Court’s requirement to

consider evidence collectively, and not item by item, to determine whether a Brady violation

occurred). Specifically, the record indicates that the trial judge was sensitive to many of the issues

raised by the State’s failure to fully comply with the discovery order and made accommodations to

avoid any prejudice to Warlick’s defense.

                                   E. Prosecutorial Misconduct

        Warlick argues that the State engaged in prosecutorial misconduct at several points during


                                                  8
his trial. The Michigan Court of Appeals reviewed this argument under the plain error standard, and

its determination is subject to AEDPA deference. Fleming v. Metrish, 

, 532 (6th Cir.

2009). To sustain a prosecutorial misconduct violation under AEDPA, Warlick must first

demonstrate that the prosecutor’s remarks were improper. Johnson v. Mitchell, 

, 936

(6th Cir. 2009). Specifically, Warlick “must show that any prosecutorial misconduct ‘so infected

the trial with unfairness as to make the resulting conviction a denial of due process.’” Henley v. Bell,

, 389 (6th Cir. 2007) (quoting Donnelly v. DeChristoforo, 

, 643 (1974)).

If this court determines that the remarks were improper, then a four-factor test is applied to ascertain

whether the statements in question were flagrant, and thus in violation of the defendant’s due process

rights. 

. To meet this high burden, Warlick argues that 1) the prosecutor

appealed to the civic duty of the jurors, 2) the prosecutor shifted the burden of proof to the defendant,

3) the prosecutor’s cumulative conduct denied Warlick of his due process rights.

        Warlick’s argument is procedurally defaulted because his counsel did not object to the

prosecutor’s conduct at trial. Three elements must be satisfied for a procedural default to exist:

        1) the petitioner failed to comply with a state procedural rule that is applicable to the
        petitioner's claim; (2) the state courts actually enforced the procedural rule in the
        petitioner's case; and (3) the procedural forfeiture is an "adequate and independent"
        state ground foreclosing review of a federal constitutional claim.

Willis v. Smith, 

, 744 (6th Cir. 2003) (citing Maupin v. Smith, 

, 138 (6th

Cir. 1986)). All three elements are met in this case. First, Michigan has a state procedural rule that

generally requires defendants to preserve all constitutional and nonconstitutional claims by first

raising them at trial. People v. Grant, 

, 128 (Mich. 1994). Second, the Michigan

Court of Appeals, the last reasoned opinion of the state courts, enforced this rule in its decision. See



                                                   9
Hinkle v. Randle, 

, 244 (6th Cir. 2001) (citing Ylst v. Nunnemaker, 

, 803

(1991)) (“In determining whether state courts have relied on a procedural rule to bar review of a

claim, we look to the last reasoned opinion of the state courts and presume that later courts enforced

the bar instead of rejecting the defaulted claim on its merits.”). Third, the procedural rule was an

adequate and independent state ground which foreclosed review because it was “firmly established

and regularly followed by the time as of which it [was] to be applied.” Rogers v. Howes, 

, 992 (6th Cir. 1998) (quoting Ford v. Georgia, 

, 423-24 (1991)). See generally

Strickland v. Pitcher, 

, 520 (6th Cir. 2006) (holding that a prosecutorial misconduct

claim was procedurally defaulted where the defendant’s counsel failed to object when the prosecutor

made the statements).

       This court can only excuse the procedural default if Warlick can demonstrate “cause for the

default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v.

Thompson, 

, 750 (1991). To establish cause for the default, Warlick submits that his

trial counsel provided him with ineffective assistance of counsel. Ineffective assistance of counsel

that surpasses the constitutional threshold may be cause for a procedural default, but attorney error

that falls short of this high standard is not cause. McCleskey v. Zant, 

, 494 (1991)

(quoting Murray v. Carrier, 

, 486-88 (1986)). Accordingly, this court must consider

the constitutional standard for ineffectiveness of counsel to make its determination. An ineffective

assistance of counsel claim by a habeas petitioner is a mixed question of law and fact considered de

novo on appeal from the district court. 

. To prove constitutionally ineffective

assistance of counsel, Warlick must show that 1) his counsel’s performance was deficient, and 2)


                                                 10
the deficient performance prejudiced his defense. Strickland v. Washington, 

, 687

(1984).

          Warlick has failed to establish that the Michigan Court of Appeals unreasonably held that

his counsel was not defective in any of the circumstances he raises. Warlick’s civic duty argument

fails because the prosecutor never made such an argument in his closing statement. Likewise, the

prosecutor did not make any statements that shifted the burden of proof. Perhaps in acknowledgment

of these deficiencies, Warlick argues that the cumulative misconduct of the prosecutor also forms

the basis for his due process claim. There is some disagreement in this court as to whether a

defendant, post-AEDPA, can cumulate constitutional errors. Compare Alexander v. Smith, 311 F.

App'x 875, 891 (6th Cir. 2009) (per curiam) (“[E]ven when no one error may in itself be reversible,

the totality of the error can deny a defendant his right to due process.”), with Moore v. Parker, 

, 256 (6th Cir. 2005) (“But we have held that, post-AEDPA, not even constitutional errors

that would not individually support habeas relief can be cumulated to support habeas relief.”). To

support his cumulation argument, Warlick refers to case law on other established types of

prosecutorial misconduct—in addition to the civic duty and burden of proof claims arguments

already discussed—but he does not argue that the prosecutor engaged in any of the misconduct

discussed in those cases. As a result, the resolution of whether a cumulative claim can be made post-

AEDPA is inconsequential because “[m]any of [Warlick’s] claims appear to be novel, frivolous, or

unpersuasive. Cumulating them therefore does not alter the analysis.” 

. Given the frivolity of Warlick’s claims, defense counsel could not have erred in not objecting

to the prosecutor’s conduct.

          This court does not need to consider the prejudice prong of the Strickland test because


                                                 11
Warlick has failed to identify any misconduct by his attorney. Strickland v. 

. In view of Warlick’s inability to demonstrate that his counsel rendered constitutionally

defective assistance, his prosecutorial misconduct claim fails unless he can prove that he has

experienced a miscarriage of justice. Only in exceptional circumstances will a miscarriage of justice

exist when the cause and prejudice requirements have not been met. 

. In

this exceptional scenario, a “constitutional violation has probably resulted in the conviction of one

who is actually innocent.” 

produced no evidence that suggests that he is actually

innocent of the crime. On the contrary, he has admitted that he participated in the robbery, and

ample evidence was presented at trial that he either shot the victim or aided and abetted the shooter.

Therefore, his prosecutorial misconduct claims fail.

                                         F. Right to Testify

        Warlick argues that his trial counsel deprived him of his constitutional right to testify. See

Rock v. Arkansas, 

, 51-52 (1987). Only a defendant can knowingly and voluntarily

relinquish his right to testify; counsel’s role in this decision must be advisory. United States v.

Webber, 

, 550 (6th Cir. 2000). It is presumed that Warlick waived his right to testify

unless the record states otherwise. 

(citing United States v. Joelson, 

, 177 (9th

Cir. 1993)). Furthermore, this court has expressly declined to require that a waiver of the right to

testify be made on the record. 

defendant wishes to testify against his counsel’s wishes, he

can insist on testifying, communicate the desire to testify to the trial court, or discharge his counsel.

7 F.3d at 177). Warlick did none of these actions. The record is silent on this

issue; consequently, Warlick has failed to rebut the presumption that he knowingly and voluntarily

waived his right to testify.


                                                   12
         Warlick blames the ineffective assistance of his trial counsel for the failure to raise this issue

on the record. He claims that his counsel recommended not testifying, warning him that if he did

testify, he would be impeached with his 1993 conviction for carrying a concealed weapon. Warlick,

however, has not established that his counsel was constitutionally ineffective. Warlick’s counsel is

“strongly presumed to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” 

. In addition, it is

presumed that the defendant assented to the decision not to testify when the decision was tactical.

. Here, according to Warlick, the decision to not testify was tactical because

Warlick’s counsel was concerned about impeachment with the prior conviction. In light of these

strong presumptions in favor of Warlick’s counsel, rebutted only by Warlick’s present allegations,

his claim fails because the Michigan Court of Appeals reasonably determined that his counsel was

not ineffective in not obtaining an express waiver of his right to testify. See Hodge v. Haeberlin, 

, 639 (6th Cir. 2009) (“[The defendant’s] present allegations that he wanted to testify and

was prevented from doing so do not suffice to overcome the presumption that he assented to the

tactical decision that he not testify.”).

        Moreover, even if it is assumed that Warlick’s counsel did not permit him to make the

decision not to testify, Warlick has failed to satisfy the prejudice prong of the Strickland test. See

. Nowhere in Warlick’s argument does he suggest how this decision

prejudiced him at trial. See 

. Particularly, he does articulate what his

testimony would have consisted of or how his testimony would have impacted the jury’s verdict.




                                                    13
       Next we turn to the three claims that the district court held to be unexhausted.1

                                  G. Improper Jury Instruction

       Warlick argues that the district court improperly dismissed his first habeas claim—alleging

a due process violation with regard to the jury instruction on the intent requirement for felony

murder—for failure to exhaust state court remedies. A prisoner must exhaust available state

remedies to give the state the “‘opportunity to pass upon and correct’ alleged violations of its

prisoners’ federal rights.” Baldwin v. Reese, 

, 29 (2004) (quoting Duncan v. Henry, 

, 365 (1995) (per curiam)). “To provide the State with the necessary ‘opportunity,’ the

prisoner must ‘fairly present’ his claim in each appropriate state court (including a state supreme

court with powers of discretionary review), thereby alerting that court to the federal nature of the

claim.” 

513 U.S. at 365-66).

        Warlick argues that he appropriately raised this claim for the first time before the Michigan

Supreme Court because he could not bring a new claim to the Michigan Court of Appeals after it had

rendered its decision. However, a defendant has failed to “fairly present” an issue when it is raised

for the first time when review is discretionary. Castille v. Peoples, 

, 351 (1989).

Specifically, this court has found that an issue has not been fairly presented when it is raised for the

first time to the Michigan Supreme Court, and that court declines to exercise its right to discretionary

review. See, e.g., Farley v. Lafler, 

, 549 (6th Cir. 2006).

                            H. Late Endorsement of a State Witness

       Warlick argues that his due process rights were violated by the trial court’s late endorsement



       1
         Because we dispose of these three claims on other grounds, we do not consider the
State’s waiver argument.

                                                  14
of State witness Don Dent (“Dent”)—the evidence technician that conducted the gunshot residue test

on Warlick. Because the Michigan Court of Appeals only considered the merits of this claim on

state law grounds, this court considers this issue de novo. Danner v. Motley, 

, 376 (6th

Cir. 2006). Dent was left off of the State’s original witness list—apparently inadvertently—but the

judge nevertheless allowed him to testify at trial. Warlick contends that this decision violated his

federal due process rights.

        The district court refused to consider this claim because it believed that Warlick had failed

to put the Michigan courts on notice that a federal due process claim was being raised. Even if the

district court erred in dismissing Warlick’s claim as unexhausted, his claim still fails on the merits.

A decision regarding the endorsement of a witness generally constitutes a state law matter within the

trial court's discretion, and Warlick has not presented a legitimate reason for disturbing the trial

judge’s ruling, which has already been deemed proper under Michigan state law. See Warlick, 

, at *3 (Mich. Ct. App. Jul. 29, 2004); see also Daniels v. Romanowski, No.

07-CV-10462, 

, at *4 (E.D. Mich. Jan. 29, 2009). It is well-settled that there is no

general constitutional right to discovery in a criminal case. Weatherford v. Bursey, 

,

559 (1977). Thus, for an evidentiary ruling to violate due process and warrant habeas relief, it must

be “so egregious that it results in a denial of fundamental fairness.” Bugh v. Mitchell, 

,

512 (6th Cir. 2003) (citing Coleman v. Mitchell, 

, 542 (6th Cir. 2001), and Seymour v.

Walker, 

, 552 (6th Cir. 2000)).

       The trial court’s endorsement of Dent falls far below this high threshold, especially because

Warlick should have reasonably anticipated that someone would present testimony about

administering the gunshot residue test. Additionally, Warlick was not prejudiced by the decision to


                                                  15
allow Dent to testify because he had ample opportunity to cross-examine Dent and explain his

testimony. See Mayes v. Gibson, 

, 1292 (10th Cir. 2000) (holding that the late

endorsement of a prosecution witness did not prejudice the defendant because defense counsel

conducted an adequate cross-examination and had a meaningful opportunity to explain the evidence

offered).

                          I. Improper Authentication of the 911 Call

       Warlick claims that his federal due process rights were violated by the trial judge’s decision

to admit Walker’s 911 call to the police. Because the Michigan Court of Appeals only considered

the merits of this claim on state law grounds, this court considers this issue de novo. 

. Warlick argues that this phone call was not sufficiently authenticated, despite Walker's

testimony that identified the tape as a recording of her phone call to 911. Again, even if the district

court erred in dismissing Warlick’s claim as unexhausted—as determined by the district court—his

claim still fails on the merits. The authentication of the 911 tape did not threaten the fundamental

fairness of Warlick’s trial, especially since Walker authenticated the tape and the contents of the 911

call were not instrumental to Warlick’s conviction. See 

.

                                          III. Conclusion

       For the foregoing reasons, we AFFIRM.




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