RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0359p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                        X
                                  Petitioner-Appellant, -
 ROBERT GIRTS,
                                                         -
                                                         -
             v.
                                                         -
                                                                 No. 05-4023

                                                         ,
 CHRIS YANAI, Warden,                                     >
                                  Respondent-Appellee. -
                                                        N

                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
                  No. 02-00264—Kathleen McDonald O’Malley, District Judge.
                                       Argued: June 6, 2007
                              Decided and Filed: September 5, 2007
                  Before: MARTIN, BATCHELDER, and CLAY, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Hope E. Redmond, THOMPSON HINE, Cleveland, Ohio, for Appellant. Thelma T.
Price, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF:
Hope E. Redmond, Robert F. Ware, THOMPSON HINE, Cleveland, Ohio, for Appellant. Bruce
D. Horrigan, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.
    CLAY, J., delivered the opinion of the court, in which MARTIN, J., joined.
BATCHELDER, J. (p. 16), delivered a separate dissenting opinion.
                                        _________________
                                            OPINION
                                        _________________
        CLAY, Circuit Judge. Petitioner Robert Girts appeals the district court’s denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that his
conviction for aggravated murder violated his Fifth and Sixth Amendment rights because the
prosecution improperly commented on his right to remain silent during closing argument, and his
trial counsel was ineffective in failing to object to the prosecutor’s statements. For the reasons that
follow, we REVERSE the district court’s decision, conditionally GRANT the writ of habeas corpus
petition, and REMAND this case to the district court.




                                                  1
No. 05-4023           Girts v. Yanai                                                           Page 2


                                         BACKGROUND
I.     Procedural History
        On February 9, 1993, Petitioner was indicted for aggravated murder, under Ohio Revised
Code (“O.R.C.”) § 2903.01, by a grand jury in Cuyahoga County, Ohio. At the ensuing trial,
Petitioner testified in his defense. Petitioner was convicted of aggravated murder by a jury in the
Cuyahoga County Court of Common Pleas (“trial court”) on June 3, 1993. The Ohio Court of
Appeals, Eighth District (“Eighth District”) reversed the conviction. State v. Girts, No. 65750, 

, at *12 (Ohio Ct. App. 8th Dist. July 28, 1994) (holding that “[t]he state’s questioning
[on cross-examination] . . . was not founded in good faith and materially prejudiced the defense”).
The case was re-tried before a different judge. Petitioner did not testify during the second trial.
         During the second trial, the prosecution made three statements concerning Petitioner’s failure
to testify in his closing argument. The prosecutor stated:
               Again these are his words. And the words that you heard from these
               folks supplied by him are unrefuted, and they are uncontroverted.
               There has been no evidence offered to say that these people are
               incorrect. None at all.
(J.A. 1284). The prosecution asserted that “with respect to the source [of the cyanide], the defendant
had no less than three occasions to tell the police that he had ordered the cyanide.” (J.A. 1285)
Last, the prosecutor stated:
               Ladies and gentlemen, we don’t have to tell you how it was
               introduced into her system. We know that it was ingested. And there
               is only one person that can tell you how it was introduced, and that’s
               the defendant.
(J.A. 1287) Petitioner’s counsel did not object to the prosecutor’s statements. Petitioner was again
convicted of aggravated murder by a jury on August 9, 1995.
       Petitioner filed two notices of appeal with the Eighth District challenging his conviction.
The two appeals were consolidated, and the Eighth District affirmed the trial court’s judgment on
June 12, 1997. Petitioner filed a motion for reconsideration with the Eighth District, which was
denied on July 24, 1997. State v. Girts, 

(Ohio Ct. App. 8th Dist. July 24, 1997).
On July 25, 1997, Petitioner filed a pro se motion for leave to appeal which the Ohio Supreme Court
denied on October 15, 1997. State v. Girts, 

(Ohio 1997). Petitioner’s motion for
reconsideration was denied on December 10, 1997. State v. Girts, 

(Ohio 1997).
        On January 22, 1996, Petitioner filed an application for post-conviction relief with the trial
court alleging ineffective assistance of counsel, which was denied on November 27, 1997. The
Eighth District affirmed the trial court’s decision on December 4, 2000. Petitioner appealed to the
Ohio Supreme Court, but the motion for leave to appeal was denied.
        Petitioner filed a petition for a writ of habeas corpus in the United States District Court for
the Northern District of Ohio on February 12, 2002. Petitioner maintained that his “due process
rights and [ ] right to a fundamentally fair trial were violated when the prosecutor improperly
commented on Petitioner’s right to remain silent,” and that he was denied effective assistance of
counsel. (J.A. 10) A magistrate judge issued a report and recommendation on May 29, 2003,
recommending that the writ of habeas corpus petition be denied. Petitioner filed objections to the
report and recommendation. On July 12, 2005, the district court found that the prosecutor
improperly commented on Petitioner’s right to remain silent and that trial counsel was ineffective
No. 05-4023           Girts v. Yanai                                                            Page 3


in failing to object to the prosecution’s statements, but held that Petitioner failed to show prejudice
and denied the petition for writ of habeas corpus. See Girts v. Yanai, No. 02CV0264, 

, at *1 (N.D. Ohio July 12, 2005). Petitioner filed a timely notice of appeal on August 3,
2005.
II.    Substantive Facts
        This Court relies on the facts as they were found by the state appellate court on direct review.
See, e.g., Bell v. Bell, 

, 743 (6th Cir. 2006); see also 28 U.S.C. § 2254(e)(1) (“In a
proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”). In this case, the facts as stated by the Ohio Court
of Appeals are as follows:
              . . . [D]efendant and decedent lived in a house that adjoined the funeral
              home where defendant worked as a funeral director and embalmer. On
              the morning of September 2, 1992, defendant and several others began
              driving back from Chicago to Parma after having assisted in moving
              defendant’s brother. Decedent remained at home, being scheduled to
              work at noon that day. When she did not arrive at work on time, a co-
              worker telephoned the funeral home and expressed her concern over
              decedent’s unusual tardiness. A funeral home employee noticed
              decedent’s car in the driveway, so he checked the house. The
              employee found the screen door open and called into the house. When
              decedent failed to respond, he entered the house and discovered her
              body slumped over in the bathtub.
              The police found no evidence of foul play nor any obvious sign of
              suicide. A razor floating on the bath water, a hot curling iron resting
              on a nearby dressing table, and the couples’ dog roaming in the yard
              led the police to conclude that decedent had died suddenly while
              bathing. Because the police could not readily determine a cause of
              death, they transported the body to the coroner’s office for an autopsy.
              During the autopsy, the coroner’s office noted no obvious cause of
              death. The coroner did find an undigested meal of pasta salad in
              decedent’s stomach, and recognized lividity or reddening of the skin
              which would typically be found in a person exposed to carbon
              monoxide. Carbon monoxide testing, however, showed no significant
              levels. The coroner listed no cause of death.
              Around September 20, 1992, defendant telephoned the police and told
              them that he had found a note, hand-written by decedent, which might
              explain her death. The undated note stated, “I hate Cleveland. I hate
              my job. I hate myself.” Defendant explained that he found the note
              underneath some papers in his brief case. He told police that decedent
              had been despondent over their recent move to the Cleveland area. She
              had difficulty finding work and worried that she had a weight
              problem. Defendant also told the police that decedent suffered three
              miscarriages and had been trying to come to grips with the thought
              that she might not be able to bear children.
No. 05-4023           Girts v. Yanai                                                     Page 4


              At about the same time, the coroner ordered department toxicologists
              to perform additional tests on body fluids taken from decedent,
              specifically asking them to detect the presence of any poisons. An
              initial test for the presence of potassium cyanide had to be discarded
              when the toxicologist discovered that reagents used in the testing
              process had been compromised. New reagents were obtained and the
              toxicologist obtained a positive result for cyanide at about twice the
              minimum lethal dose. The coroner verified this result by asking the
              Franklin County Coroner’s Office to test for the presence of cyanide
              by using a different methodology. The Franklin County Coroner
              obtained virtually identical results. The coroner then listed the cause
              of death as homicide.
              The police returned to defendant’s house and executed a search
              warrant, pointedly telling defendant that they were looking for cyanide
              or other poisons. Defendant cooperated with the search, but the police
              found nothing. The police questioned the funeral home operators
              about the possible use of cyanide in the embalming process, but found
              no evidence that the funeral home had received cyanide from any of
              its suppliers. A funeral home director later recalled a conversation
              with defendant in which they discussed how the police investigated
              funeral home supply shipments for deliveries containing cyanide and
              defendant said, “That is not where I got it from.”
              The evidence did not show that the police had any suspects until they
              broadcast a plea for assistance with a television crime watch service.
              As a result of that broadcast, defendant’s commanding officer in the
              Army reserves came forward in January 1993 with information that
              she had sent defendant two grams of potassium cyanide. She explained
              that defendant knew that she worked as a chemist in her civilian job
              and that in the spring of 1992, he asked her if she could supply him
              with a small amount of cyanide for use in controlling groundhogs on
              his property. The commanding officer did not immediately send the
              cyanide. She later discovered that defendant had left his business card
              on her desk. A notation on the card, in defendant's handwriting stated,
              “Thank you for your help.” In the lower corner of the card defendant
              wrote “KCN,” the chemical abbreviation for potassium cyanide. The
              card reminded the commanding officer of defendant’s request, so she
              sent “a couple of grams” of cyanide to the funeral home address listed
              on defendant’s business card. The commanding officer explained that
              she came forward with the information after learning that defendant’s
              wife had died as a result of cyanide poisoning.
              When confronted with evidence that he had obtained cyanide,
              defendant told the police that he had used the cyanide to control
              groundhogs on the property. A funeral home employee, however,
              insisted that he had no knowledge of a groundhog problem, and
              produced records showing that squirrels were the only pest control
              problem on the property. The city pest control officer stated that he
              had no complaints about groundhogs. A representative from a pest
              control company conceded that cyanide might have been used for pest
              control well in the past, but that in ten years of business, she had not
              used any products containing cyanide.
No. 05-4023           Girts v. Yanai                                                     Page 5



              Other persons came forward with information that soon corroborated
              police suspicion on defendant. A business associate recalled a
              conversation in which defendant abruptly interrupted her to ask if she
              could show him the measurement of a gram. When the business
              associate asked why he needed this information, defendant said that
              he needed to measure some medicine for his dog’s food. Defendant's
              veterinarian, however, stated that he prescribed no medication for the
              dog that would require any kind of measuring.
              A colleague at the funeral home described a conversation in which he
              said that defendant had told him that decedent committed suicide.
              When the colleague wondered how decedent could procure cyanide,
              defendant responded that “she probably got it down on West 25th
              Street where she worked because she came in contact with a lot of low
              lifes.” In a subsequent conversation, the colleague again wondered
              how decedent could have obtained the cyanide, and this time
              defendant said, “Someone at the coroner’s office probably spilled
              some of it because they keep it there.”
              Another funeral home colleague testified that when the ambulance
              came to transport decedent’s body, defendant yelled to the drivers that
              they should take the body to Parma General Hospital. The police
              learned that defendant had previously worked for the Lorain County
              Coroner. His experience there would tell him that all deaths occurring
              without any known natural cause would ordinarily be investigated by
              the coroner’s office, which ordinarily performed more complete
              autopsies than hospitals.
              The police also began to question decedent’s motivation to commit
              suicide. Several close friends told the police that they had spoken with
              decedent shortly before her death and found her in good spirits. The
              friends found nothing unusual about her behavior and noted that
              decedent was looking forward to moving into a house she and
              defendant recently purchased. One friend did, however, say that she
              had met with defendant shortly before decedent’s death and he told her
              that decedent was depressed about living in Cleveland. This statement
              contradicted the friend’s perceptions. Just three days before her
              conversation with defendant, the friend spent the weekend with
              decedent and defendant and found nothing unusual about decedent’s
              demeanor.
              The state settled on two factors motivating the murder. First, it
              discovered that defendant had had a fitful affair with another woman
              who would not continue the affair as long as defendant remained
              married. Defendant and the woman first became involved for a short
              period in 1980, but the woman broke off the affair because she had
              discovered defendant lying about his marital status with a previous
              wife. The affair resumed briefly in either 1985 or 1986, but ended
              shortly by mutual agreement. It resumed again in February 1992.
              Defendant told the woman that he was married, but that he and his
              wife were divorcing and expected to finalize the divorce in July 1992.
              The intimate portion of their relationship ended in late May 1992,
No. 05-4023            Girts v. Yanai                                                        Page 6


              although they remained in contact for several more months. Defendant
              stipulated that he was not a party to any divorce action.
              Defendant called this woman shortly after decedent’s death and
              informed her that decedent had died from an aneurysm. They spoke
              twice thereafter and, in the early part of October 1992, the woman
              received an early morning telephone call from defendant in which he
              said, “Miss Bethea, this is Robert Girts. We’ll have to put the
              decorating of my house on hold. Something really bizarre has
              happened.” When the woman asked what happened, defendant replied,
              “I’m being investigated for my wife’s death.” He then hung up. The
              woman found this conversation unusual because defendant had never
              referred to her as “Miss” and because, while she had worked as an
              interior designer, she had not discussed decorating the interior of
              defendant’s house.
              The woman then called the police and informed them of her
              conversation with defendant. Defendant telephoned her late that
              evening. When he heard that she had telephoned the police and that
              they would be coming to question her, he said there was no harm in
              her doing design work for him and she should “be brief” during questioning.
              The second motivating factor arose from defendant’s financial status.
              Defendant stipulated that he had received just over $50,000 as
              proceeds from life insurance policies taken on decedent's life. The
              state tied this money to defendant’s purchase of a house and his desire
              to invest $10,000 and become a silent partner in another funeral home.
              Defendant’s case consisted primarily of evidence showing that he had
              been in Chicago at the time of decedent’s death (a fact the state did not
              dispute) and expert testimony rebutting the state’s findings relating to
              the manner and cause of death.
              Defendant’s sister-in-law testified that she ate from a bowl of pasta
              salad she had found in defendant’s refrigerator and suffered no ill effects.
              Defendant’s expert testified that he would have listed the cause of
              death as “undetermined” because in his opinion the level of cyanide
              found in decedent’s body did not correspond with the classic signs of
              cyanide poisoning that he would have expected to find. The expert
              testified that cyanide basically poisons all the cells in the body to the
              point where they cannot use oxygen. Because the cells cannot use
              oxygen, the blood becomes superoxygenated, thus giving the body its
              reddish appearance. The cyanide victim can breathe, but nonetheless
              experiences the sensation and effects of asphyxiation. The onset of
              cyanide poisoning is marked by dizziness or faintness with rapid
              breathing. Convulsions, palpitations, or seizures may follow before the
              victim falls into a coma and dies.
              The outward indicia of cyanide ingestion include burning around the
              mouth and throat area, uniform lividity of other major internal organs,
              petechiae or small bleeding points usually found in the stomach,
              involuntary release of both urine and fecal matter, and collection of
     No. 05-4023           Girts v. Yanai                                                        Page 7


                   fluid in the lungs. Of these signs, only the lividity and collection of
                   fluid in the lungs were present. The expert thought that the lividity and
                   collection of fluid, however, could be explained by other factors, such
                   as the immediate refrigeration of the body after being taken from
                   warm water.

.
                                               DISCUSSION
I.       Standard of Review
        “In a habeas corpus proceeding, this Court reviews the district court’s legal conclusions de
novo and its factual findings for clear error.” Miskel v. Karnes, 

, 451 (6th Cir. 2005)
(citation omitted).
II.      Legal Framework
        Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a writ of habeas corpus
petition may be granted if a state court decision:
                   was contrary to, or involved an unreasonable application of, clearly
                   established Federal law, as determined by the Supreme Court of the
                   United States; or [ ] 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 Supreme Court has found that
                   A state-court decision involves an unreasonable application of
                   [Supreme] Court[ ] precedent if the state court identifies the correct
                   governing legal rule from th[e] [Supreme] Court’s cases but
                   unreasonably applies it to the facts of the particular state prisoner’s
                   case. Second, a state-court decision also involves an unreasonable
                   application of th[e] [Supreme] Court’s precedent if the state court either
                   unreasonably extends a legal principle from our precedent to a new
                   context where it should not apply or unreasonably refuses to extend
                   that principle to a new context where it should apply.
Williams v. Taylor, 

, 407 (2000) (citation omitted); see also Early v. Packer, 

, 7-8 (2002); Hill v. Hofbauer, 

, 716 (6th Cir. 2003).
         “A federal court is generally barred from considering an issue of federal law arising from the
judgment of a state court if the state judgment ‘rests on a state-law ground that is both ‘independent’
of the merits of the federal claim and an ‘adequate’ basis for the [state] court’s decision.’” Frazier v.
Huffman, 

, 790 (6th Cir. 2003) (quoting Harris v. Reed, 

, 260 (1989)); see
also Coleman v. Thompson, 

, 729-30 (1991). “In general, a federal court may not
consider a claim for habeas corpus relief if the claim was procedurally defaulted in state court– i.e.,
if the last state court to render a judgment in the case rejected the claim because it was not presented
in accordance with the state’s procedural rules.” Hargrave-Thomas v. Yukins, 

, 387 (6th
Cir. 2004) (citing 

).
        “A procedurally defaulted claim may be considered in federal habeas corpus proceedings only
if the petitioner either shows ‘cause’ for his failure to comply with the state’s procedural rules and
  No. 05-4023           Girts v. Yanai                                                           Page 8


‘prejudice’ resulting from the alleged violation of federal law or shows that the federal court’s refusal
to consider the claim will result in a ‘fundamental miscarriage of justice.’” 

501
U.S. at 750). “The district court’s application of the ‘cause and prejudice’ rules must be reviewed de
novo.” 

v. O’Dea, 

, 416 (6th Cir. 1999).
        To determine whether a claim has been procedurally defaulted, this Court applies a four-part
test:
                First, the court must determine that there is a state procedural rule that
                is applicable to the petitioner’s claim and that the petitioner failed to
                comply with the rule . . . . Second, the court must decide whether the
                state courts actually enforced the state procedural sanction . . . . Third,
                the court must decide whether the state procedural forfeiture is an
                “adequate and independent” state ground on which the state can rely
                to foreclose review of a federal constitutional claim . . . . Once the
                court determines that a state procedural rule was not complied with
                and that the rule was an adequate and independent state ground, then
                the petitioner must demonstrate . . . that there was “cause” for him to
                not follow the procedural rule and that he was actually prejudiced by
                the alleged constitutional error.
Maupin v. Smith, 

, 138 (6th Cir. 1986) (footnotes and citations omitted) (formatting and
emphasis added); see also Deitz v. Money, 

, 808 (6th Cir. 2004) (same). In the instant
case, since Petitioner concedes that “the first two prongs of the foregoing test are satisfied,” only the
last two prongs of the test will be discussed below. (Pet. Br. at 21)
III.    Procedural Default
        A.      Adequate and Independent State Ground
        This Court has found that “a procedural default does not bar consideration of a federal claim
on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly
and expressly’ states that its judgment rests on a state procedural bar.” 

(citation omitted). To constitute an “adequate and independent state procedural rule,” a rule must be
“firmly established and regularly followed,” and cannot rely on federal law. Smith v. Ohio Dep’t of
Rehab. & Corrs., 

, 431 (6th Cir. 2006). “[I]f it fairly appears that the state court rested
its decision primarily on federal law, this Court may reach the federal question on review unless the
state court’s opinion contains a plain statement that [its] decision rests upon adequate and independent
state grounds.” 

(internal quotation marks and citations omitted); see also
Clinkscale v. Carter, 

, 450 (6th Cir. 2004); Bowling v. Parker, 

, 498 (6th
Cir. 2003).
        In Clinkscale, a case where the state court decision did not clearly and expressly indicate
reliance on a state procedural rule, this Court found that
                [a]lthough the decision unquestionably mention[ed] [the state
                procedural rule] and its requirements, it also emphasize[d] and relie[d]
                upon the fact that [petitioner’s] ineffective assistance claim had already
                been raised on direct 

. This Court held that “[i]t [was] unclear on what ground, or grounds, the [state]
court’s judgment rested,” and that “[u]nder th[ose] circumstances, [this Court] [is] unable to say that
the [state court] decision ‘clearly and expressly states that its judgment rests on a state procedural
  No. 05-4023           Girts v. Yanai                                                             Page 9


bar.’” Id. (quoting 

). The Court concluded that the claim was not procedurally
defaulted and addressed the merits of the claim.
         Similarly, in Bowling, this Court found that “[t]he language used by the [state court] in its
opinion reveal[ed] that it did not clearly rely on [petitioner’s] procedural default to dismiss the claims
raised in his supplemental 

. “After noting that the claims were raised only
in the struck supplemental pleadings, the [state court in Bowling] . . . consider[ed] the merits of those
claims, stating, ‘Notwithstanding that his supplemental motion was struck by the trial court, in the
interest of judicial economy we will review the seven additional claims of ineffective assistance of
counsel raised in the motion.’” 

This Court found that the state court opinion
was ambiguous and vague with respect to the procedural bar, and proceeded to consider the
petitioner’s claims on the merits. The Court found that “there must be unambiguous state-court
reliance on a procedural default for it to block our review.” 

v. Parker, 

,
321 (6th Cir. 2000); see also 

n.13 (noting the fact that “the state court clearly
went on to reject the federal claim on the merits” makes it less clear that the state court actually relied
on the procedural bar). If “the adequacy and independence of any possible state law ground is not
clear from the face of the [State court’s] opinion,” this Court “[may] presume that there is no
independent and adequate state ground for [the] state court decision.” 

(internal quotation marks and citations omitted).
         In the instant case, Eighth District’s opinion appears to be ambiguous. While the judgment
appears to rest on a state procedural bar, see 

, the court expressly found
that a federal constitutional right was involved and cited Griffin v. California, 

(1965),
for the proposition that “the state may not comment on an accused’s failure to testify at trial,” 

(citations omitted). As in Clinkscale and Bowling, it is not clear whether the
opinion expressly states that the judgment is based on an adequate and independent state law ground.
However, we do not have to make a determination with respect to the adequacy and independence of
a possible state law ground because Petitioner conceded at oral argument that the state court conducted
only a plain error review of the underlying claims. This concession is significant. This Court has
found that “plain error review [by a state appellate court] does not constitute a waiver of state
procedural default rules.” Seymour v. Walker, 

, 557 (2000) (citation omitted). Petitioner
attempts to distinguish this case from Seymour arguing that, unlike Seymour, this case involves a
federal constitutional claim. Even assuming arguendo that the claims in Seymour were exclusively
based on Ohio substantive law, the proposed distinction between federal and state claims is
unsupported by case law. Petitioner cannot point to case law that supports distinguishing between
claims based on state substantive law or federal constitutional law. Simply put, there is no exception
to Seymour for cases concerning federal constitutional claims. Since Petitioner conceded that the state
court performed a plain error review, in light of Seymour, we cannot find a waiver of the state
procedural default rules. Therefore, we find Petitioner’s underlying due process claim to be
procedurally defaulted.
        B.      Cause and Prejudice
        This Court has found that a procedural default may be overcome by “demonstrat[ing] cause
for the [procedural] default and actual prejudice as a result of the alleged violation of federal law, or
demonstrat[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.”
Smith v. Ohio Dep’t of Rehab. & 

(internal quotation marks and citation
omitted); see also Ege v. Yukins, 

, 378 (6th Cir. 2007). For the reasons set forth below,
we find that Petitioner meets the cause and prejudice exception to the procedural default because his
trial counsel was ineffective in failing to object to the prosecution’s statements during closing
argument.
 No. 05-4023            Girts v. Yanai                                                        Page 10


               1.      The Prosecutor’s Statements
        In this case, the prosecutor made three statements during closing argument about Petitioner’s
failure to testify. In pertinent part, the prosecutor stated:
               Again these are his words. And the words that you heard from these
               folks supplied by him are unrefuted, and they are uncontroverted. There
               has been no evidence offered to say that these people are incorrect.
               None at all.
(J.A. 1284) (emphasis added). This comment points directly to Petitioner’s failure to testify and
suggests to the jury that Petitioner had an affirmative obligation to refute witness testimony. The
statement suggests that the exercise of the Fifth Amendment right to remain silent negatively impacted
the evidence presented at trial – namely, witness testimony went “unrefuted” and “uncontroverted.”

        The prosecutor also stated that “with respect to the source [of the cyanide], the defendant had
no less than three occasions to tell the police that he had ordered the cyanide.” (J.A. 1285) (emphasis
added). Again, this statement focused on Petitioner’s Fifth Amendment right to remain silent.
       Last, the prosecutor stated:
               Ladies and gentlemen, we don’t have to tell you how it was introduced
               into her system. We know that it was ingested. And there is only one
               person that can tell you how it was introduced, and that’s the
               defendant.
(J.A. 1287) (emphasis added). As the district court noted, this “statement is anything but a comment
on the evidence.” (J.A. 1230) By indicating that Petitioner was the “only one person” who could
explain the crime to the jury, the prosecutor highlighted the fact that Petitioner did not testify, and
attached a negative connotation to the exercise of the Fifth Amendment right to remain silent.
         The prosecutor’s three statements were improper, misleading and highly prejudicial because
they implied that Petitioner was obligated to testify and to speak to the police. In the words of the
district court, the prosecution cannot “take the deficiencies in its own case, which the defense has
every right – indeed, every obligation – to point out, and utilize those deficiencies against
[Petitioner].” 

counsel failed to object to the prosecutor’s improper statements
during closing argument. The failure to object to the improper and prejudicial statements constitutes
ineffective assistance of counsel.
               2.      Ineffective Assistance of Counsel
        “When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the
defendant must show that counsel’s representation fell below an objective standard of reasonableness.”
Strickland v. Washington, 

, 688 (1984); see also Keith v. Mitchell, 

, 682 (6th
Cir. 2006); United States v. Foreman, 

, 503 (6th Cir. 2003). “The defendant 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.” 

; see also 

;

.
       “In order to avoid second-guessing trial counsel’s strategic decisions,” review of counsel’s
performance is highly deferential. 

. “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional assistance;
  No. 05-4023                 Girts v. Yanai                                                                            Page 11


that is, the defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” 

(internal quotation marks
and citation omitted). “A reviewing court must judge the reasonableness of counsel’s actions on the
facts of the defendant’s case, viewed from counsel’s perspective at the time,” Higgins v. Renico, 

, 631-32 (6th Cir. 2006), and “strategic choices must be respected if they were made after
thorough investigation of law and facts relevant to plausible options,” 

(internal quotation
marks and citations omitted). “[A] defendant has the burden of proving, by a preponderance of the
evidence, that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,’” 

466 U.S. at 687).
“Unless the accused receives the effective assistance of counsel, a serious risk of injustice infects the
trial itself.” United States v. Cronic, 

, 656 (1984) (internal quotation marks and citation
omitted).
        Under Strickland, Petitioner must establish prejudice to bring a successful ineffective
assistance of counsel 

. “[Petitioner] 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.”

demonstrate that “counsel’s errors were serious enough to deprive [him] of a
proceeding the result of which was reliable.” Glenn v. Tate, 

, 1210 (6th Cir. 1995).
“[T]he prejudice prong is satisfied if there is a reasonable probability that at least one juror would have
struck a different balance.” Hamblin v. Mitchell, 

, 493 (6th Cir. 2003) (internal quotation
marks and citation omitted). Prejudice may be presumed “if petitioner’s counsel ‘entirely fails to
subject the prosecution’s case to meaningful adversarial testing[.]’” Millender v. Adams, 

, 524 (6th Cir. 2004) (quoting 

).
        In this case, trial counsel’s failure to object allowed the prosecutor’s improper and prejudicial
statements to reach the jury uncontested and without the proper admonition from the trial court. This
inaction simply cannot be characterized as litigation strategy. There was no conceivable benefit to
be derived from failing to challenge the prosecutor’s improper statements. “[T]he prejudice resulting
from [counsel’s] lawyering is [ ] patent.” Groseclose v. Bell, 

, 1170 (6th Cir. 1997).
“[Counsel’s] performance was so inept as to amount to a constructive denial of counsel, relieving
[Petitioner] of the need to show prejudice.” 

counsel had raised an objection, the trial court
would have reprimanded the prosecutor and issued a prompt curative instruction to the jury. In turn,
the jury would have heard from the judge that the prosecutor’s comments called for an improper and
impermissible negative inference for Petitioner’s exercise of his Fifth Amendment rights. Certainly,
if an objection had been raised to the prosecutor’s first statement, the prosecutor would not have been
permitted to continue to overstep with subsequent comments. Trial counsel’s failure to object
exacerbated the prejudicial effect of the prosecutor’s statements. We find that there is a strong
likelihood that at least one juror would have changed his mind if the improper and prejudicial
statements would not have been made, especially because the prosecutor presented weak and limited
evidence at trial. Trial counsel1clearly rendered ineffective assistance of counsel by failing to object
to the prosecutor’s statements.

           1
              In this case, the state court found that the prosecutor’s statements were not improper or prejudicial and that
  “nothing in the record suggests that, but for the[ ] [improper prosecutorial] comments, the verdict would clearly have
  been different.” (J.A. 1240) Although the district court found that the statements were prejudicial, the court deferred
  to the state court’s conclusion and denied the writ of habeas corpus petition. (J.A. 1240) Case law clearly indicates that
  this Court does not give deference to a state court’s conclusion that Strickland was not violated if the state court
  improperly concludes that the prosecutor’s statements were not prejudicial. When a state court fails to “recognize[ ] the
  clear predicate problem itself, the trial court’s conclusion that [trial counsel] did not violate Strickland by failing to object
  to that problem is . . . inherently flawed.” Washington v. Hofbauer, 

, 705 (6th Cir. 2000). Since the state
  court found that the prosecutor’s statements were not improper or prejudicial, it failed to recognize the “predicate
  problem itself.” 

characterize [the state court’s] conclusion as an ‘objective reasonable’ application of
  Strickland would be to dilute our review under the AEDPA to a generous apology for the clearest of errors.” 

05-4023                Girts v. Yanai                                                    Page 12


        This Court has recognized that ineffective assistance of counsel may be used to satisfy the
“cause” prong of the procedural default exception. See, e.g., 

; see also

. Attorney error may constitute cause if it rises to the level of constitutionally
ineffective assistance of counsel. Gravley v. Mills, 

, 785 (6th Cir. 1996); see also 

(noting that “attorney error can only be considered cause if the error meets the
threshold of ineffective assistance of counsel in violation of the Sixth Amendment”). Because trial
counsel’s failure to object rises to the level of ineffective assistance of counsel, Petitioner has
established “cause” to overcome the state procedural bar. Petitioner has also established “prejudice”
to overcome the state procedural bar. As discussed above, trial counsel’s failure to object prejudiced
Petitioner and aggravated the prejudicial effect of the prosecutor’s improper and highly prejudicial
statements. 

. Since Petitioner presents a successful ineffective assistance of
counsel claim, and has established cause and prejudice to overcome the state procedural bar, we will
address the merits of the Petitioner’s claims below.
IV.     The Prosecutor’s Statements Violated Petitioner’s Fifth Amendment Rights and Were
        Sufficiently Flagrant to Warrant Reversal of Petitioner’s Conviction Despite Trial
        Counsel’s Failure to Object
        The prosecutor’s improper statements constitute prosecutorial misconduct because Petitioner’s
silence cannot be used against him as substantive evidence. In Combs v. Coyle, a police officer
questioned defendant at the scene of a crime, and defendant told the police officer to “talk to my
lawyer,” the prosecution commented on defendant’s silence during closing argument:
                  Talk to my lawyer. Talk to my lawyer. Does that sound like someone
                  who’s so intoxicated he doesn’t know what is going on? Isn’t that
                  evidence that he realizes the gravity of the situation and at this time
                  gave that particular comment or response to [the police officer]?

, 279 (6th Cir. 2000) (citation omitted). This Court recognized that
                  [t]he Supreme Court has given the privilege against self-incrimination
                  a broad scope, explaining that “[i]t can be asserted in any proceeding,
                  civil or criminal, administrative or judicial, investigatory or
                  adjudicatory; and it protects against any disclosures that the witness
                  reasonably believes could be used in a criminal prosecution or could
                  lead to other evidence that might be so used.”

v. United States, 

, 444-45 (1972)). This Court expressly found that
the Fifth Amendment “is not limited to persons in custody or charged with a crime” and that the
privilege “may also be asserted by a suspect who is questioned during the investigation of a crime.”

(quoting Coppola v. Powell, 

, 1565 (1st Cir. 1989)); see also Wainwright v.
Greenfield, 

, 295 n.13 (1986) (finding that “silence does not mean only muteness; it
includes the statement of a desire to remain silent as well as of a desire to remain silent until an
attorney has been consulted”). The Court indicated that “[i]n a prearrest setting as well as in a post-
arrest setting, it is clear that a potential defendant’s comments could provide damaging evidence that
might be used in a criminal prosecution.” 

. As in Combs, in the instant case,
“the use of a defendant’s prearrest silence as substantive evidence of guilt violates the Fifth
Amendment’s privilege against self-incrimination.” Id.; see also Ohio v. Leach, 

, 340-
41 (Ohio 2004) (holding “that the use of [defendant’s] pre-arrest silence in the state’s case-in-chief



 district court erred in deferring to the state court’s finding.
  No. 05-4023            Girts v. Yanai                                                               Page 13


as substantive evidence of guilt subverts the policies behind the Fifth Amendment”) (emphasis in
original).
        In this case, the prosecutor’s improper statements were “sufficiently flagrant to warrant
reversal of [Petitioner’s] conviction despite his counsel’s failure to object . . . at trial.” (Pet. Br. at 39)
This Court employs a two-part test to determine whether prosecutorial misconduct warrants a new
trial. United States v. Carter, 

, 783 (6th Cir. 2001) (citing United States v. Carroll, 

, 1385-87 (6th Cir. 1994)). “Under this approach, a court must first consider whether the
prosecutor’s conduct and remarks were improper,” and “then consider and weigh four factors in
determining whether the impropriety was flagrant and thus warrants reversal.” 

26 F.3d at 1387). The four factors which this Court considers include:
                (1) whether the conduct and remarks of the prosecutor tended to
                mislead the jury or prejudice the defendant; (2) whether the conduct or
                remarks were isolated or extensive; (3) whether the remarks were
                deliberately or accidentally made; and (4) whether the evidence against
                the defendant was strong.

26 F.3d at 1385); see also Boyle v. Million, 

, 717 (6th Cir. 2000);
United States v. Collins, 

, 1039 (6th Cir. 1996). “When reviewing challenges to a
prosecutor’s remarks at trial, [this Court] examine[s] the prosecutor’s comments within the context
of the trial to determine whether such comments amounted to prejudicial error.” 

(citing United States v. Young, 

, 11-12 (1985)). If “defense counsel made no objection
to the prosecutor’s statements at trial, this court will review for plain error only.” 

78 F.3d at 1039). Nevertheless, “prosecutorial misconduct may be so exceptionally flagrant that it
constitutes plain error, and is grounds for reversal even if the defendant did not object to it.” Id.
(quoting 

n.6).
                1.       The Prosecutor’s Statements Were Prejudicial
        “The first [flagrancy] factor focuses on the effect of the improper arguments at issue; namely
whether they were misleading or otherwise prejudicial to the defendant.” United States v. Modena,

, 635 (6th Cir. 2002). This Court has found that prosecutorial statements may have a
“great[ ] potential for misleading the jury,” 

, and impacting jury deliberations
“because a jury generally has confidence that a prosecuting attorney is faithfully observing his
obligations as a representative of a sovereignty,” 

(quoting 

).
       Instead of proffering evidence that directly connected Petitioner to his wife’s death, the
prosecutor told the jury that Petitioner was the “only one person” who could explain his wife’s death.
The prosecutor’s comments were prejudicial because they concerned central issues in the case –
namely, how Petitioner’s wife allegedly ingested cyanide; how Petitioner allegedly obtained the
cyanide; and what Petitioner allegedly said about his wife’s death.
        Since trial counsel did not object to the statements, the prosecutor was not admonished for the
comments. See, e.g., United States v. Galloway, 

, 633 (6th Cir. 2003) (finding that
court’s admonition expressing specific disapproval of prosecutor’s improper comment is sufficient
to constitute curative instruction). Although the jury was instructed on Petitioner’s Fifth Amendment
right, a routine jury instruction at the conclusion of the trial is not sufficient to cure a prosecutor’s
improper comments. See, e.g., 

(holding that general instruction given at the
end of trial, rather than when comments were made, did not cure misconduct). The trial court failed
to provide a prompt, curative instruction in response to the highly prejudicial statements. Therefore,
we find that there is very strong likelihood that prosecutor’s prejudicial statements misled the jury.
 No. 05-4023            Girts v. Yanai                                                           Page 14


               2.      The Prosecutor’s Statements Were Not Isolated
         This Court is charged with considering “whether the improper arguments made by the
prosecutor were isolated” in nature. United States v. Modena, 

, 635 (6th Cir. 2002). This
Court has found that “[i]t only takes a single comment . . . to remind a jury that the defendant has not
testified and to fix in the jurors’ minds the impermissible inference that the defendant has not testified
and to fix in the jurors’ minds the impermissible inference that the defendant is guilty merely because
of his exercise of that right.” Eberhardt v. Bordenkircher, 

, 279 (6th Cir. 1979) (finding
that even a “[r]elatively brief and [un]repeated comment” may have prejudicial effect if a judge does
not give a strong and timely curative instruction); see also United States v. Smith, 

, 297
(6th Cir. 1974). Thus, while a single improper comment may be sufficient to create a constitutional
violation, the frequency and cumulative effect of multiple improper comments magnifies the
prejudicial effect of the statements.
        In this case, the prosecutor commented on Petitioner’s silence three times during closing
argument. The multiple statements strongly suggests that Petitioner’s silence was a central theme in
the prosecutor’s closing argument. The comments came in relatively close sequence and were some
of the last statements heard by the jury before deliberations. Since the prosecutor’s comments were
not isolated, the statements had a profoundly prejudicial effect. The multiple statements amplified the
prejudicial effect.
               3.      The Prosecutor’s Statements Were Deliberate
         This Court also considers whether the prosecutor deliberately placed the improper comments
before the jury. 

. Petitioner maintains that “[t]he very repetition of the
improper comments reveals that such comments were not accidentally placed before the jury.” (Pet.
Br. at 45) “[R]epeated comments [ ] demonstrate that the errors were not inadvertent” because
“clearly, we are not dealing with a spontaneous comment that could be regretted but not retracted.”
United States v. Smith, 

, 935 (9th Cir. 1992). The prosecutor made repeated references
to Petitioner’s silence and failure to testify in the closing argument. The statements were simply not
a response to trial counsel’s arguments because trial counsel “never mentioned anything in his opening
statement about [Petitioner] testifying or not testifying.” (Pet. Br. at 45) As the district court
indicated, “the prosecutor intended to comment (especially with regard to the third statement) on
[Petitioner’s] failure to testify and that the jury likely understood the comments to have been offered
for that purpose.” (J.A. 1230) (citing Gall v. Parker, 

(6th Cir. 2000)). Therefore, we find
that the prosecutor deliberately placed the statements before the jury.
               4.      The Strength of the Evidence Against Petitioner Was Not Overwhelming
        Last, the Court considers the strength of the evidence against Petitioner to assess the
impropriety of the prosecutor’s comments. 

. In this case, the district court
noted that the evidence against Petitioner was not overwhelming. The record shows that Petitioner
was out of state when his wife died. The prosecutor also had little, if any, evidence concerning the
alleged ingestion of cyanide. More specifically, during the first autopsy, the toxicology test for
cyanide did not yield a positive result. Although the second toxicology test yielded a positive result
for cyanide, Petitioner’s wife did not exhibit physical symptoms of cyanide poisoning. (J.A. 1281-82)
The evidence in this case is insufficient to overcome the prosecutor’s improper comments. Given the
facts in this case, there is a strong likelihood that the prosecutor strategically made the prejudicial
statements at the end of the trial to focus the jury’s attention on Petitioner’s silence, and away from
the limited evidence presented at trial. The improper statements in this case constitute flagrant
prosecutorial misconduct and are grounds for reversal even if trial counsel did not raise an objection.
Therefore, we grant Petitioner’s petition for a writ of habeas corpus on the grounds of flagrant
prosecutorial misconduct and ineffective assistance of counsel.
 No. 05-4023            Girts v. Yanai                                                         Page 15


                                           CONCLUSION
        For the foregoing reasons, the district court’s decision is REVERSED. We conditionally
GRANT the writ of habeas corpus petition, and REMAND this case to the district court with
instructions to order Petitioner’s release from custody unless the State of Ohio grants Petitioner a new
trial within 180 days.
 No. 05-4023            Girts v. Yanai                                                           Page 16


                                         __________________
                                              DISSENT
                                         __________________
       ALICE M. BATCHELDER, Circuit Judge, dissenting. The majority deems the prosecutor’s
comments inherently prejudicial and concludes that Girts is entitled to a new trial. I must respectfully
disagree.
        In a habeas proceeding, a claim of prosecutorial misconduct must be reviewed for harmless
error, Spisak v. Mitchell, 

, 713 (6th Cir. 2006) (citations omitted); it “is not enough that
the prosecutors’ remarks were undesirable or even universally condemned.” Darden v. Wainwright,

, 181 (1986). “The relevant question is whether the prosecutors’ comments ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’” 

v. DeChristoforo, 

, 642 (1974)); accord Angel v. Overberg, 

, 608
(6th Cir. 1982) (en banc). And this question must be answered on the totality of the circumstances;
“taken as a whole and within the context of the entire record.” Lundy v. Campbell, 

, 472-
73 (6th Cir. 1989). The majority’s supposition that the prosecutor’s comments were inherently
prejudicial, without demonstrable proof of prejudice, is patently wrong.
         Prosecutorial misconduct claims are analyzed under a two-step approach, in which the court
first determines whether the challenged statements were improper, and if so, determines “whether the
impropriety was flagrant and thus warrants reversal.” United States v. Carter, 

, 783 (6th
Cir. 2001). Even assuming all three statements were improper — a proposition with which I do not
agree — I cannot agree they were flagrant. Flagrancy is measured by four factors: (1) whether the
statements tended to mislead the jury or prejudice the defendant; (2) whether the statements were
isolated or among a series of improper statements; (3) whether the statements were deliberately or
accidentally before the jury; and (4) the total strength of evidence against the accused. 

powerful of these factors in this case is the fourth factor: whether the evidence
against Girts was strong — the evidence against Girts was overwhelming. Moreover, the prosecutor’s
comments had no bearing on the theory of the case. Diane Girts died suddenly and unexpectedly from
a lethal dose of cyanide, without leaving any evidence of accident or suicide, thus creating a
reasonable inference that she had been murdered. Girts had obtained a lethal dose of cyanide prior
to Diane’s death and had hidden this fact from the police. He had motive for killing her. And, he had
offered certain witnesses’ inconsistent, contradictory, and incriminating stories, all of which created
a reasonable (and powerful) inference that Girts was the murderer.
        The prosecution’s statement regarding Girts’s pre-arrest secrecy in not telling the police about
his purchasing cyanide is not even a Fifth Amendment issue, it is part of the prosecution’s theory of
the case, insomuch as Girts — prior to any arrest or Miranda warning — withheld information critical
to the police investigation. The statement regarding the government-witness-testimony’s being
unrefuted is not improper either, it is merely a summary of the evidence. The statement that only Girts
could explain how the cyanide got into Diane’s system, however, could be interpreted as a comment
on Girts’s decision not to testify at trial. But if this statement had any effect on the jury at all — and
I do not believe that it did — then the only reasonable conclusion from the totality of the evidence is
that the effect was minimal. There is no basis to conclude that, but for this statement, the jury’s
decision would have been different.
       The district court should be affirmed.