BALDOCK, Circuit Judge.
A 1998 neighborhood shooting in Detroit, Michigan resulted in the death of an eighteen year old male bystander, Kenneth Tinsley, and injury to two other bystanders, a twenty-one year old male, Michael Hearn, and a nine year old female, Tiffany Smith. A year later, a Michigan state court jury found then twenty-two year old Petitioner Roy Blackmon responsible and convicted him of second-degree murder, using a firearm during the commission of a felony, and two assaults with intent to do great bodily harm. The state court sentenced Petitioner to between forty and sixty years imprisonment on the murder count, concurrent three to ten year terms on the assault counts, and a consecutive two year term on the firearm count. Eleven years of legal wrangling later, a federal district court on collateral review pursuant to 28 U.S.C. § 2254 held Michigan had deprived Petitioner of his right to a fair trial in violation of the Fourteenth Amendment's Due Process Clause. Blackmon v. Booker, 762 F.Supp.2d 1031 (E.D.Mich. 2010). The district court granted Petitioner a conditional writ of habeas corpus and told Michigan to retry him. The State appealed pursuant to § 2253(a). The issue, as framed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is: Whether the Michigan Court of Appeals holding — namely, that the state prosecution's (1) elicitation of,
On habeas review pursuant to § 2254, a "court faced with a record of historical facts that supports conflicting inferences [and a fortiori findings] must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (2010) (internal quotations omitted). Accordingly, in Part I.A. we summarize the record evidence in a light most favorable to the State, accounting, of course, for the gang-related testimony on which Petitioner bases his claims of unconstitutional prejudice. With that evidence in hand, we next recite in Part I.B. the challenged portions of the prosecution's opening and closing statements within the context of the defense's own statements to the jury. In Part II we trace the case's procedural history. Finally in Part III of our opinion, we assess Petitioner's claims under the deferential AEDPA standard. That standard requires Petitioner to show "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing [Supreme Court precedent] beyond any possibility for fairminded disagreement." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).
During the early evening hours of Easter Sunday, April 12, 1998, while still daylight, twenty-one year old Duane Harris, also known as Jimmy Crost (Crost), stopped by to visit twenty year old Nancy Ellis at her house on Woodmont Street in Detroit. Nancy, her twenty-one year old sister Adrienne Ellis, and their cousin Tiffany Coggans (presumably of similar age) were inside the house. Crost, accompanied by his two year old daughter, parked the Grand Prix he was driving in the driveway. Nancy described Crost and Petitioner as friends. Nancy also described Crost and herself as friends. But twenty-two year old Autumn Taylor, Adrienne's best friend, knew Crost and Nancy as "more than friends." Appellant's Appendix (Aplt's App.) at 506. Adrienne said "I guess they kick it." Id. at 559. Nancy testified she had "just broken up" with Kenyatta Simons "like a week before." Id. at 410. Simons testified, however, that he had been going out with Nancy since "like ninth grade" and was "still going out with" Nancy "at the time." Id. at 600-01.
Simons, who lived down the street from Nancy, showed up at her house moments after Crost arrived. Nancy met Simons outside near the porch steps. Crost stood in the front door where Simons could see him. Adrienne testified Simons "push[ed] [her] sister's face." Id. at 562. Nancy testified Simons told her to tell Cross that when he "come outside he getting bust at, meaning shot at." Id. at 415. Crost testified he heard Simons say "when he come out the house, tell him I'm going to pop him." Id. at 665. At that point, Crost went back inside Nancy's house and upstairs
Id. at 417-18.
The record suggests Nancy was not particularly forthcoming in her trial testimony. She admitted she did not "want to involve [herself] ... in this matter at all." Id. at 441. Nancy testified that shortly after Crost hung up the phone, a burgundy Impala stopped on Woodmont Street near the end of the driveway south of her house. Nancy said she saw no one get in or out of the vehicle. But she did see Crost walk toward the vehicle. At the same time, she saw a person wearing a red shirt approach Crost. Nancy then heard five gunshots in rapid succession, but testified she did not see the shooter.
During her testimony, the prosecution presented Nancy with three signed statements she gave to police investigators following the shooting. Nancy testified that each of those statements were true. See id. at 434, 436-37. She told investigators:
Nancy's sister Adrienne was by record appearance an even more difficult witness. Adrienne testified she was on the front porch when she too heard Simons threaten to shoot Crost. Adrienne saw an Impala pull into the alley south of the house moments later. Crost was "running or walking towards the car" with his daughter. Id. at 543. Adrienne then saw a black male wearing a red shirt and wielding a gun get out of the passenger's side of the
Id. at 588.
Tiffany Coggans testified she was "[i]n the back room" of Nancy's house during the course of events and, other than hearing gunshots, had no knowledge of what occurred. Id. at 480. Coggans responded no when asked whether Nancy or Adrienne had identified the shooter to her. The prosecution impeached Coggans with her previous statements to investigators that (1) Adrienne said "a guy named Roy pulled a gun and started shooting," and (2) Nancy said "she didn't think they were going to do anything because Jimmy had his daughter." Id. at 490, 492. The trial court instructed the jury to consider Coggans' prior statements only for the purpose of assessing her credibility.
Adrienne's friend Autumn Taylor testified she was on her way to visit Adrienne when the shooting occurred. Taylor was near the end of the house's walkway when she heard the gunfire. "[A] whole street full of people" was nearby. Id. at 508. Taylor crawled from the end of the sidewalk onto the porch, and into the house with Nancy and Adrienne. Taylor testified that Nancy had not identified the gunman to her. In her statement to investigators, however, she indicated Nancy "identified the actual shooter." Id. at 513.
Michael Hearn, a victim of the shooting, "lived down the street" from Nancy. Id. at 186. Although under subpoena, Hearn expressed a willingness to testify. Hearn testified he knew both Crost and Petitioner from the nearby "Grand River, Greenfield" neighborhood, or what Hearn also referred to as the "Schoolcraft Greenfield area." Id. at 181-82. Over defense counsel's continuing objection, Hearn testified to Petitioner's gang affiliation:
Id. at 183-84. Hearn identified that "one" as "[h]im, Roy." Id. at 256.
Describing the events of April 12, 1998, Hearn testified that moments prior to the shooting "a whole bunch of people [was] out in the street" three or four houses from where Nancy lived on Woodmont. Id. at 193. Hearn's friend Kenyatta Simons stood a few feet further down the street. Hearn described the houses as "close together." Id. at 201. Hearn testified he saw a burgundy Impala pull up in front of Nancy's driveway and Crost come out of her house. Hearn further testified he saw Petitioner get out of the passenger's side of the Impala. The Impala then "backed in the alley." Id. at 198. Hearn described Petitioner as wearing a red shirt and a red hat with "little braids hanging out his hat." Id. at 196. Hearn testified to what happened next:
Id. at 200-01. Hearn estimated he was standing about a thirty-second walk or thirty-five feet from Petitioner, but was "able to still see him clearly." Id. at 202. Meanwhile, Kenneth Tinsley, who was fatally wounded in the shooting, stood about four feet from Hearn "in the line of fire." Id. at 210. According to Hearn, Simons also stood where he might "have been struck by bullets." Id. at 215. Hearn testified Petitioner fired "six to eight" shots. Id. at 203. One shot struck Hearn in the right bicep and a second struck him in the neck behind the left ear. After stumbling a few steps, Hearn collapsed.
Another shot struck nine year old Tiffany Smith in the hip while she was riding her bicycle in front of her house. Tiffany testified "I fell off my bike and my mama dragged me up the steps." Id. at 379. She said she heard shots coming from both the alley and the street, but did not see anyone actually shooting a gun. Tiffany further testified that some time after the shooting someone marked the slide on the playground at her school with "a whole
Id. at 384.
Nineteen year old Arthur Anderson lived "[t]hree or four houses down" from Nancy. Id. at 301. Anderson indicated he was friends with the two male victims, Michael Hearn and Kenneth Tinsley. Anderson also stated he had known Jimmy Crost and Petitioner since high school. He identified both Crost and Petitioner as members of the Schoolcraft Boys and stated their gang membership made him fearful of testifying:
Id. at 293. In fact, the court had ordered Anderson detained pending trial because he earlier failed to appear for a related court hearing:
Id. at 287-88.
Anderson testified he had just come out the front door of his house on Woodmont Street when he heard gunshots. Anderson looked towards Nancy Ellis's house in the direction of the shots. He did not see Crost or the Impala, but did see Petitioner wearing a red hat:
Id. at 299-302. After identifying Petitioner as the shooter, Anderson again expressed his reluctance to testify:
Id. at 356-59.
The prosecution called Kenyatta Simons as its final witness. Simons admitted seeing Crost at Nancy's house shortly before the shooting, but denied threatening him. Contrary to his prior statement to investigators, Simons also denied confronting Nancy about the situation. Simons testified he was standing on the sidewalk talking to Michael Hearn and others when he saw a "dark-skinned" man wearing "a bunch of red," including a red hat, "in front of [Nancy's] house." Id. at 605-06, 622.
Id. at 607-09.
Crost and Petitioner testified on behalf of the latter's defense. Crost stated he was friends with Nancy Ellis and Petitioner, and acknowledged being at Nancy's house shortly before the shooting. Crost witnessed an argument between Nancy and Simons and heard Simons threaten to shoot him. Crost denied taking Simons' threat seriously or calling anyone on the phone for assistance. Rather, Crost testified he did not want to become involved so he decided to leave. As he was stepping off the porch, he heard shots coming from
Given the fact-intensive nature of Petitioner's claim that the prosecution violated his right to federal due process by eliciting testimony regarding his gang affiliation, and the need to consider the record as a whole, we necessarily have reviewed in some detail the entirety of the inconsistent and conflicting trial testimony. Given Petitioner's additional claim that the prosecution's characterization of such testimony before the jury similarly violated his right to due process, we now necessarily turn for much the same reasons to a detailed recitation of those germane portions of both the prosecution's and defense's opening and closing statements.
Mindful of the testimony to come, both the prosecution and defense in their opening statements to the jury emphasized witness credibility, and referred to how Petitioner's and Crost's alleged gang affiliation might bear upon the truth. The prosecution stated:
Id. at 158-60. Meanwhile, the defense stated:
Aplt's App. at 168-69.
In its closing statement, the prosecution returned to the topic of witness credibility. The prosecution asked the jury what motivation Michael Hearn and Arthur Anderson, the two witnesses who identified Petitioner as the shooter, would have to lie. But as for a number of the prosecution's other witnesses, "[s]omething is causing these witnesses to hedge." Trial Transcript (Trial Tr.) at 754.
Id. at 768.
Id. at 757-58.
The prosecution also relied on the testimony of Nancy Ellis to suggest a motive for the shooting, i.e., the reason why Petitioner showed up on Woodmont Street and fired into the crowd shortly after Simons threatened Crost:
Id. at 760-61, 769, 771.
For its part, the defense criticized the prosecution's characterization of many of its own trial witnesses as liars and purveyors of half-truths who falsely claimed "the police picked on them." Id. at 782. If everyone is a liar, the defense asked, why should the jury believe Nancy Ellis's testimony that Crost made a phone call from her house shortly before the shooting when Crost denied the fact?
Id. at 783-85. Further into its closing statement, the defense again brought the character of its witnesses into focus, criticizing the evidence of Petitioner's and Crost's gang affiliation as nothing more than the prosecution's efforts to portray them as bad apples:
Id. at 792-95. The defense did not stop there. The defense subsequently used the word "gangster(s)" no less than one half dozen times and made facetious statements such as:
Id. at 807-11. The prosecution next attacked Petitioner's testimony that he was not a member of the Schoolcraft Boys or any other gang:
Id. at 812. The prosecution concluded: "Jimmy Crost ... started the whole progression of what happened. [Defense counsel] can ignore, argue it doesn't happen on behalf of his client. I don't know anything about this gang stuff and I can be naive. That's in this case. That's what this case is about." Id. at 816.
On direct appeal, Petitioner argued among other things that the trial court wrongly permitted the prosecution as a matter of state law to elicit and comment upon "irrelevant and prejudicial testimony" regarding Petitioner's affiliation with
Id. at *3 (internal brackets omitted). The Michigan Supreme Court denied Petitioner leave to appeal. People v. Blackmon, 467 Mich. 851, 649 N.W.2d 78 (2002).
After unsuccessfully seeking post-conviction relief in state court, Petitioner sought a writ of habeas corpus pursuant to § 2254 in federal district court. This time Petitioner claimed the errors recognized by the Michigan Court of Appeals deprived him of his due process right to a fair trial in violation of the Fourteenth Amendment. The district court held the trial court's admission of gang-related testimony and the prosecution's statements before the jury about Petitioner's gang membership deprived him of a fair trial. The court granted Petitioner a conditional writ. Blackmon v. Booker, 312 F.Supp.2d 874 (E.D.Mich.2004). The State appealed and we reversed without reaching the constitutional questions. We instructed the district court to dismiss the petition for failure to exhaust because Petitioner had not fairly presented his federal constitutional claims to the state courts, and still had an opportunity to do so. Blackmon v. Booker, 394 F.3d 399 (6th Cir.2004).
To make an already long story shorter, Petitioner was back before the Michigan Court of Appeals four years later after the state trial court again denied him post-conviction relief. The appellate court couched Petitioner's constitutional claims
Id. The Michigan Supreme Court again denied review. People v. Blackmon, 483 Mich. 1022, 765 N.W.2d 338 (2009).
Petitioner thereafter renewed his § 2254 application for a writ of habeas corpus before the federal district court. In his amended petition, Petitioner once again claimed the state trial court deprived him of the right to a fair trial in violation of the Due Process Clause by permitting the prosecution to (1) introduce irrelevant and highly prejudicial testimony regarding his gang affiliation and (2) comment repeatedly on that testimony. See Blackmon, 762 F.Supp.2d at 1038. Contrary to the Michigan Court of Appeals' decision, the district court held the state trial court's admission of testimony regarding Petitioner's gang affiliation rendered his trial fundamentally unfair within the meaning of the Fourteenth Amendment:
Id. at 1042. The court further held the prosecution's comments regarding Petitioner's alleged gang ties constituted misconduct and likewise "rendered Petitioner's trial fundamentally unfair in violation of the Constitution." Id. at 1045.
The Supreme Court has observed that "[f]ederal habeas review of state convictions frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Harrington, 131 S.Ct. at 787. This is why AEDPA, much to the consternation of some courts, restricts habeas review of federal claims previously "adjudicated on the merits" in state court. As the district court here ostensibly recognized, the strictures of § 2254(d)(1) limit federal review of Petitioner's state convictions:
28 U.S.C. § 2254(d)(1). We may limit our review still further by distinguishing between (d)(1)'s references to state court decisions that are "contrary to," and those that involve an "unreasonable application of, clearly established Federal law, as determined by the Supreme Court:"
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Neither Petitioner nor the district court have ever seriously suggested the Michigan Court of Appeals' adjudication of Petitioner's constitutional claims resulted in a decision that was "contrary to ... clearly established" Supreme Court precedent. Nor, as we shall see, could they do so. To our knowledge, the Supreme Court has never held (except perhaps within the capital sentencing context) that a state trial court's admission of relevant evidence, no matter how prejudicial, amounted to a violation of due process. Cf. Dowling v. United States, 493 U.S. 342, 352-54, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (holding the admission of prior bad acts evidence that had "the potential to prejudice the jury" but was "at least circumstantially valuable in proving petitioner's guilt" did not violate due process); Estelle v. McGuire, 502 U.S. 62, 67-70, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding the admission of prior injury evidence tending to prove battered child syndrome did not violate due process). Accordingly, the only question before us is whether the Michigan state court's adjudication of Petitioner's constitutional claims "resulted in a decision that ... involved an unreasonable application of clearly established" Supreme Court law to the facts of this case. 28 U.S.C. § 2254(d)(1) (emphasis added).
Under AEDPA's "unreasonable application" clause, habeas relief is available only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Harrington, 131 S.Ct. at 786. A federal court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411, 120 S.Ct. 1495. Rather, to justify issuance of a writ, the state court's application of "clearly established" Supreme Court authority must be "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. And in making that determination, a federal court must not forget that the specificity of the legal principle to be applied affects the range of reasonable judgment in the principle's application to the facts of a particular case:
Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004).
On post-conviction review, the Michigan Court of Appeals framed the question as whether the prosecution's elicitation of, and comment upon, testimony regarding Petitioner's gang affiliation "so infected [Petitioner's] trial with unfairness as to make [his] resulting conviction[s] a denial of due process of law." Blackmon, 761 N.W.2d at 178. As framed, the state's court's inquiry undoubtedly reflects the general due process standard applicable to Petitioner's claim of prosecutorial misconduct. In Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), the Supreme Court held a prosecutor's
Endorsing a virtually identical due process standard by which to measure a trial court's admission of evidence, the Supreme Court in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), cited Darden exclusively. In holding victim impact evidence introduced at the penalty phase of a capital trial admissible, the Court cautioned: "In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id. at 825, 111 S.Ct. 2597 (citing Darden, 477 U.S. at 179-83, 106 S.Ct. 2464); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (holding the trial court's exclusion of testimony coupled with its refusal to permit cross-examination denied defendant "a trial in accord with traditional and fundamental standards of due process"). Undoubtedly, the Michigan Court of Appeals, consistent with "clearly established" Supreme Court precedent, properly identified the legal principle — fundamental fairness — applicable to Petitioner's constitutional claims.
Now that we have identified the legal principle applicable to Petitioner's due process claims, determining whether the state appellate court unreasonably applied that principle to the facts of his case is our remaining task. The Supreme Court has explained that "[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Dowling, 493 U.S. at 352, 110 S.Ct. 668. Accordingly, the Court has "defined the category of infractions that violate `fundamental fairness' very narrowly." Id. (emphasis added). In particular, the
In analyzing Petitioner's claim that the state trial court committed constitutional error by allowing the prosecution to elicit testimony regarding his membership in the Schoolcraft Boys, the district court cited a host of federal district and circuit court decisions discussing the admissibility of gang-related evidence. See Blackmon, 762 F.Supp.2d at 1040-42. The district court repeatedly prefaced its discussion by stating "federal courts have ruled," "[f]ederal courts have long-recognized," and "[f]ederal courts have found." Id. at 1040-41. Suffice to say "circuit [and district] precedent does not constitute `clearly established Federal law, as determined by the Supreme Court,' 28 U.S.C. § 2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA." Parker, 132 S.Ct. at 2155. Nor can Petitioner defend the district court's reliance on lower court precedents, including our own "on the ground that they merely reflect what has been `clearly established' by [Supreme Court] cases." Id. After referencing the constitutional standard of fundamental fairness, the district court cited two Supreme Court decisions in its discussion of Petitioner's evidentiary claim. But neither of these decisions suggests in the slightest that the Michigan Court of Appeals' application of Supreme Court authority was objectively unreasonable in this case.
The first case, United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984), did not even involve a constitutional claim of evidentiary error, but a claim arising under the Federal Rules of Evidence. And as the district court recognized, Abel stands for the unremarkable proposition that "the admission of gang affiliation testimony may be appropriate when it is probative of a witness's bias toward a defendant." Blackmon, 762 F.Supp.2d at 1040. Specifically, the Supreme Court held that "evidence showing [a witness's] and [defendant's] membership in the [same] prison gang was sufficiently probative of [the witness's] possible bias towards [defendant] to warrant its admission into evidence." Abel, 469 U.S. at 49, 105 S.Ct. 465. The Court reasoned:
Id. at 52, 105 S.Ct. 465 (emphasis added).
Given Abel's conclusion that the defendant's and witness's gang membership in that case could bear on the "accuracy and truth" of the witness's testimony, surely the apparent fear generated by Petitioner's and Crost's membership in the Schoolcraft Boys may have bore on the "accuracy and truth" of numerous witnesses' testimony
The record indicates that at least five Government witnesses, namely Nancy Ellis, Adrienne Ellis, Tiffany Coggans, Autumn Taylor and Kenyatta Simons, gave statements to the police within hours after the shootings. These statements to varying degrees tended to implicate Petitioner in the April 12 shootings on Woodmont Street. A year later, this time before a jury, Petitioner, and the public, those same witnesses were reluctant to confirm their initial version of events. In fact, each of those witnesses except Nancy Ellis denied the truth of his or her prior statements in whole or in part. The prosecution, through the testimony of Tiffany Smith and Arthur Anderson and the questioning of other witnesses, sought to attribute the change to its witnesses' fear of gang reprisal. Meanwhile, the defense on cross-examination suggested the police had strong-armed the prosecution's witnesses into implicating Petitioner. Which side to believe was the jury's call. Reweighing the evidence, the district court invaded the province of the jury when it discounted the prosecution's theory of witness bias in favor of the defense's under the auspices of a constitutional analysis.
The district court also cited the Supreme Court's decision in Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), to support its issuance of the writ on the basis of evidentiary error. In Dawson, the Court held the State violated a defendant's First Amendment right to association when it introduced evidence in a capital sentencing proceeding that defendant was a member of the Aryan Brotherhood, even though "the evidence ha[d] no relevance to the issues being decided in the proceeding." Id. at 160, 112 S.Ct. 1093 (emphasis added). On the record presented, the Court was "left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find [the gang's] beliefs morally reprehensible." Id. at 167, 112 S.Ct. 1093.
Where a specific guarantee of the Bill of Rights such as the First Amendment is involved, a federal court on habeas review must take "special care" to assure itself that the state court's alleged evidentiary error did not impermissibly infringe such guarantee as interpreted by the Supreme Court. Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. But Petitioner's evidentiary claim is that the prosecution's elicitation of gang-related evidence, and the trial court's admission thereof, so infected his trial with unfairness as to make the resulting conviction a denial of his right to due process. See id. Unlike a First Amendment claim, Petitioner's due process claim calls for the application of a general standard posing a "greater ... potential for reasoned disagreement among fair-minded judges," and thus much less likely to support issuance of a writ. Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1864, 176 L.Ed.2d 678 (2010).
Moreover, unlike the challenged evidence in Dawson, the evidence of Petitioner's gang affiliation most certainly was relevant, at least for purposes of federal due process analysis. See Blackmon, 761 N.W.2d at 183 (White, J., concurring) (recognizing the distinction between state evidentiary error and federal constitutional error). As we have just explained, the gang affiliation evidence tended to make the fact of witness bias in favor of Petitioner based on fear more probable. Of equal if not greater importance, such evidence also tended to make Petitioner's presence at the scene of the shootings, where at least two individuals clearly saw him fire a gun into the crowd, more likely "than it would be without the evidence." Fed. R.Evid. 401 (defining relevant evidence as that having a "tendency to make a fact more or less probable than it would be without the evidence"). This is a critical point the district court simply failed to grasp in its mischaracterization of the record:
Blackmon, 762 F.Supp.2d at 1040.
Notwithstanding uncontroverted evidence of the friendship between Petitioner
Blackmon, 761 N.W.2d at 182.
The point is this: Based on the record evidence, the Michigan Court of Appeals' decision upholding the prosecution's elicitation, and the trial court's admission, of evidence related to Petitioner's gang affiliation "was not objectively unreasonable." Renico, 130 S.Ct. at 1865. The Supreme Court has told us that in applying § 2254(d)(1), we first must determine what reasons "supported or ... could have supported the state court's decision." Harrington, 131 S.Ct. at 786. We have just explained that the Michigan Court of Appeals decided, or could have decided, the admission of gang-related evidence against
At this point, not much remains of Petitioner's additional claim that the prosecution's gang-related comments before the jury rendered his trial fundamentally unfair. The district court cited no Supreme Court decision, and we have found none, to support the proposition that notions of "fundamental fairness" prohibit the prosecution from emphasizing relevant evidence, regardless of its nature, bearing on either a witness's bias or a criminal defendant's motive, or both. Instead, the district court analyzed Petitioner's constitutional claim of prosecutorial misconduct under our own Sixth Circuit precedents and applied a multistep test "for determining whether prosecutorial misconduct violates a defendant's due process rights." Blackmon, 762 F.Supp.2d at 1045 (citing Macias v. Makowski, 291 F.3d 447, 452 (6th Cir.2002)). But because, in the Supreme Court's words, "[t]he highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden bears scant resemblance to the elaborate, multistep test employed by the Sixth Circuit," our test has no application on collateral review of a state court conviction under § 2254(d)(1).
In any event, the only prosecutorial comment to the jury that gives us momentary pause was that Petitioner would "take care of business later" and "should have wrote tombstones on [the witnesses'] front doors" because he had not "scare[d] these witnesses enough" to keep them from testifying against him. Trial Tr. at 812. Notably, this comment came in response to the defense's own series of comments, which we earlier recounted, suggesting the prosecution was seeking to convict Petitioner based on his suspect character. One such comment summarized the whole: "So the theory of this case from the prosecutor's standpoint is ... really what you ought to convict [Petitioner] for is for being in a gang." Id. at 794; see Darden, 477 U.S. at 182, 106 S.Ct. 2464 (explaining the "idea of `invited response'" was not designed to excuse improper comments "but to determine their effect on the trial
Darden held a closing statement that contained a series of inflammatory remarks did not warrant issuance of a writ:
Darden, 477 U.S. at 179-81, 106 S.Ct. 2464 (internal footnotes, citations, and quotations omitted). The Supreme Court's denial of habeas relief in Darden coupled with the fact that the "Darden standard is a very general one" satisfies us the district court had no business setting aside the Michigan Court of Appeals' decision on the basis that the prosecution's opening and closing statements rendered Petitioner's trial fundamentally unfair. Parker, 132 S.Ct. at 2155.
The district court's failure to adhere to the strictures of § 2254(d)(1), as construed by the Supreme Court, resulted in the court's "improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system." Harrington, 131 S.Ct. at 787. Accordingly, the district court's issuance of the writ of habeas corpus is reversed. This cause is remanded to the district court with instructions to deny the writ.
REVERSED and REMANDED.
Aplt's App. at 278.
Blackmon, 762 F.Supp.2d at 1040. We find nothing remarkable about the prosecution witnesses' reluctance to acknowledge fear of retribution from the Schoolcraft Boys, an alleged member of which was on trial for crimes of violence. Neither, obviously, did the jury.