NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0956n.06

                                            No. 12-1451

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Nov 06, 2013
RONALD PIONTEK,                                    )
                                                   )                       DEBORAH S. HUNT, Clerk
       Petitioner-Appellant,                       )
                                                   )   ON APPEAL FROM THE UNITED
v.                                                 )   STATES DISTRICT COURT FOR THE
                                                   )   EASTERN DISTRICT OF MICHIGAN
CARMEN PALMER, Warden,                             )
                                                   )
       Respondent-Appellee.                        )
                                                   )

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Ronald Piontek, presently confined at the

Michigan Reformatory in Ionia, Michigan, appeals the district court’s denial of his petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. Piontek challenges his convictions of four counts

of first-degree criminal sexual assault, Mich. Comp. Laws § 750.520b, and one count of second-

degree criminal sexual assault, Mich. Comp. Laws § 750.520c. On direct appeal, the Michigan

Court of Appeals rejected Piontek’s claim of ineffective assistance of trial counsel. Because the

district court properly held that the state court’s determination was neither contrary to, nor involved

an unreasonable application of, Strickland v. Washington, 

(1984), we affirm the

judgment of the district court.

                                                  I.
       On direct appeal, the Michigan Court of Appeals set forth the following underlying facts.1

               “This case arises out of allegations that Piontek sexually assaulted the
       complainant, his niece. Sometime in 1999, when the complainant was nine years
       old, her cousin sexually abused her. Several months after this occurred, the
       complainant told Piontek about the incident because she trusted him. A short time
       after telling Piontek about this abuse, the complainant was spending the night at
       Piontek’s house when he took her to the bathroom in the basement and placed his
       fingers and tongue into her vagina. The complainant stated that these sexual
       encounters occurred on at least five different occasions when she would spend the
       night at Piontek’s house.” People v. Piontek, No. 268048, 

, at *1
       (Mich. Ct. App. Apr. 26, 2007).

               “The complainant also stated that during these encounters, Piontek would
       unzip his pants and force her to rub his penis with her hands. Moreover, the
       complainant stated that on another occasion, after accompanying Piontek to work,
       he tried to have anal sex with her after they returned home, but stopped when she
       began crying.” 

2005, the complainant’s parents discovered her journals, which
       contained information about Piontek sexually abusing her. The complainant [later]
       testified that, in addition to the information about Piontek, the journals contained
       entries to an imaginary friend to whom the complainant would write about addictions
       to pain, sex, and drugs. The complainant’s mother confronted her about the
       information concerning Piontek, and the complainant confirmed how Piontek abused
       her. The complainant’s mother reported Piontek’s sexual abuse to the police[, and
       t]he complainant later participated in a forensic interview.” 

stated that [in 2002,] nearly three years before learning of
       Piontek’s sexual abuse of the complainant, she had learned of the 1999 sexual abuse
       involving the cousin during a conversation with the complainant. . . . [T]he mother
       reported this incident to police [and the complainant subsequently participated in a
       forensic interview regarding the sexual abuse involving the cousin.]” 

admitted in . . . [that 2002] forensic interview . . . that the only person
       who had sexually assaulted her was her cousin.” 

“[The mother] did not
       seek counseling for the complainant because the complainant did not want to see a
       counselor. The mother also stated that sometime in 2004, she learned that the
       complainant had been cutting herself. The complainant explained that during that


       1
          Piontek has not challenged the state court’s factual findings. Therefore, we presume this
statement of facts to be correct. See 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.”)

                                                -2-
       time, she would often cut her arms in order to ‘release pain’ and that she began
       seeing a counselor at school because someone had told the counselor about the cuts.”
        

               “[At trial], the complainant admitted that, although she initially testified that
       Piontek had sexually assaulted her in 2002, she indicated to . . . [the] forensic
       interviewer at that time that no one had sexually assaulted her besides her cousin.
       The complainant made this admission after having her recollection refreshed by the
       police report of the forensic interview.” 

“[T]he complainant [also]
       admitted that she lied to the [2005] forensic interviewer about how often Piontek
       would abuse her.” 

“The complainant testified that she was afraid to
       disclose Piontek’s abuse because she did not want to see the same devastation in her
       family, which occurred when she disclosed her cousin’s abuse, happen to Piontek
       who had a newborn baby. Also, the complainant said that she waited to disclose
       Piontek’s abuse because she was afraid she would get into trouble with her mother
       and because Piontek was a ‘good person’ when he was not abusing her.” 

       A Wayne County, Michigan circuit court jury convicted Piontek of two counts of first-degree

criminal sexual conduct (“CSC”) under Mich. Comp. Laws § 750.520b(1)(a) (sexual penetration

with another person under 13 years of age), two counts of first-degree CSC under §

750.520b(1)(b)(ii) (sexual penetration with a person at least 13 but less than 16 years of age who is

a relation), and one count of second-degree CSC under § 750.520bc(1)(b)(ii) (sexual contact with

a person at least 13 but less than 16 years of age who is a relation). 

“The trial court

sentenced Piontek as a second habitual offender to 20 to 40 years imprisonment for each of his four

CSC I convictions and 10 to 22 years imprisonment for his CSC II conviction.” 

and moved to remand. Piontek made several claims on appeal: “that the

trial court erred in failing to review and admit the complainant’s counseling records into evidence,”

“that the trial court erred in denying an adjournment where the police officer who Piontek

subpoenaed was unavailable,” 

that remand was required “on account of newly discovered

evidence . . . because, while preparing for appeal, [Piontek] consulted with an expert . . . whose

testimony would undercut the complainant’s credibility,” 

and “that the trial court

                                                 -3-
misscored his sentencing guidelines,” 

Piontek also argued that the state appellate court

should remand for a hearing under People v. Ginther, 

(Mich. 1973), “so that a

record may be developed to determine whether he was denied the effective assistance of counsel.”

Piontek claimed on appeal “that he was denied the effective assistance of counsel because

of his trial counsel’s failure to consult a psychiatric expert concerning problems with the

complainant’s disclosure and memory of the abuse.” 

argued that other grounds

established ineffective assistance of counsel: “that trial counsel failed to consult or call a psychiatric

expert to determine whether Piontek fit the profile of a sexual predator,” 

“that trial counsel

failed to ‘work up’ the case file,” id.; and “that defense counsel failed to object to the entry of the

complainant’s journals into evidence,” 

Court of Appeals affirmed Piontek’s

convictions and sentence. 

        Piontek then filed an application for leave to appeal in the Michigan Supreme Court,

asserting the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court

denied the application because it was “not persuaded that the questions presented should be

reviewed.” People v. Piontek, 

, 701–02 (Mich. 2007). Piontek then filed a petition

for habeas relief in the United States District Court for the Eastern District of Michigan pursuant

to 28 U.S.C. § 2254. In his petition, Piontek made three claims for relief. First, Piontek claimed that

the trial court violated his rights to a fair trial and due process of law, to present a defense, and to

confront his accuser by denying his request to release the school and phsychiatric records of the

complainant. Second, Piontek claimed that the trial court violated his right to present a defense and

right to effectively confront his accuser by denying an adjournment when a properly defense-

subpoenaed police officer chose not to appear at trial. Third, Piontek claimed that his trial counsel


                                                   -4-
denied him effective assistance of counsel when she failed to consult with forensic psychologists

since the case involved a disputed allegation of sexual abuse made by a psychologically disturbed

complainant, and since, according to Piontek, such psychologists would have testified that the

complainant’s disclosures were unreliable. The district court denied habeas relief on all of Piontek’s

claims. Piontek v. Palmer, No. 08-15074, 

, at *1 (E.D. Mich. Mar. 20, 2012). The

district court granted a certificate of appealability (“COA”) on Pointek’s claim for ineffective

assistance of counsel, but denied a COA on his remaining claims. Order, Piontek v. Palmer, No. 08-

15074 (E.D. Mich. Mar. 20, 2012). Piontek appealed. Our review is limited to Pointek’s claim for

ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 

,

336 (2003) (finding a COA a “jurisdictional prerequisite”); Seymour v. Walker, 

, 561

(6th Cir. 2000) (holding that the court may not consider claims for which no COA was issued).

                                                     II.

       “This court reviews a district court’s decision in a habeas corpus proceeding de novo.” West

v. Seabold, 

, 84 (6th Cir. 1996). The amendments to 28 U.S.C. § 2254, enacted as part

of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214, “circumscribe” the standard of review federal courts must apply when considering a

petition for a writ of habeas corpus raising constitutional claims, including claims of ineffective

assistance of counsel. Wiggins v. Smith, 

, 520 (2003). 28 U.S.C. § 2254(d) provides:

       An application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the claim--
               (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


                                                     -5-
               (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.

standard of review, “[i]n order for a federal court to find a state court’s application

of our precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous.” 

(citing Lockyer v. Andrade, 

, 75 (2003)). Rather,

“[t]he state court’s application must have been ‘objectively unreasonable.’” 

(citing

Williams v. Taylor, 

, 409 (2003)); see also Franklin v. Francis, 

, 433 (6th

Cir. 1998). Further, “[i]n 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.” 28 U.S.C. § 2254(e)(1); see also 

(“The court gives complete deference to state court findings of historical fact unless they are

clearly erroneous.”).

       In Williams v. Taylor, 

(2003), the Supreme Court interpreted the operative

clauses of 28 U.S.C. § 2254(d)(1)—the “contrary to” clause and the “unreasonable application of”

clause. See 

First, the Court explained the proper application of the “contrary to”

clause, employing the federal law of ineffective assistance of counsel as an example:

       A state-court decision will certainly be contrary to our clearly established precedent
       if the state court applies a rule that contradicts the governing law set forth in our
       cases. Take, for example, our decision in Strickland v. Washington. If a state court
       were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds
       that the prisoner had not established by a preponderance of the evidence that the
       result of his criminal proceeding would have been different, that decision would be
       ‘diametrically different,’ ‘opposite in character or nature,’ and ‘mutually opposed’
       to our clearly established precedent because we held in Strickland that the prisoner
       need only demonstrate a ‘reasonable probability that . . . the result of the proceeding
       would have been different.’ A state-court decision will also be contrary to this
       Court’s clearly established precedent if the state court confronts a set of facts that are
       materially indistinguishable from a decision of this Court and nevertheless arrives
       at a result different from our precedent. Accordingly, in either of these two

                                                  -6-
        scenarios, a federal court will be unconstrained by § 2254(d)(1) because the state-
        court decision falls within that provision’s ‘contrary to’ clause.

(internal citations omitted). Second, the Court explained that “a federal habeas court

making the ‘unreasonable application’ inquiry should ask whether the state court’s application of

clearly established federal law was objectively unreasonable.” 

The Court emphasized

that “the most important point is that an unreasonable application of federal law is different from

an incorrect application of federal law.” 

This distinction between an incorrect

application and an unreasonable application of Supreme Court precedent sets a higher bar for

obtaining relief than the bar for obtaining relief under de novo review. The Court has recently

explained that “[a] state court’s determination that a claim lacks merit precludes federal habeas relief

so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington v. Richter, 

, 786 (2011) (quoting Yarborough v. Alvarado, 

,

664 (2004)). “Under § 2254(d), a habeas court must determine what arguments or theories

supported or . . . could have supported, the state court’s decision; and then it must ask whether it is

possible fairminded jurists could disagree that those arguments or theories are inconsistent with the

holding in a prior decision of this Court.” 

imposes a highly deferential standard

for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the

doubt.” Renico v. Lett, 

, 773 (2010) (internal quotation marks omitted); see also Peak

v. Webb, 

, 472 (6th Cir. 2012) (“[T]he Supreme Court has very recently made

abundantly clear that the review granted by AEDPA is even more constricted than AEDPA’s plain

language already suggests.” (citing 

)), cert. denied, 

(2013).

“Therefore, if it is possible for a fairminded jurist to believe that the state court’s rationale comports

with the holding in [Strickland], then [this court] must deny relief.” 

a very high

                                                   -7-
standard.” 

this standard is difficult to meet, that is because it is meant to be.”

.

       The two-pronged test set forth in Strickland v. Washington, 

(1984), governs

our analysis of ineffective-assistance-of-counsel claims. Towns v. Smith, 

, 258 (6th Cir.

2005). The first prong requires a claimant “to prove that his trial counsel’s representation was

deficient in that it ‘fell below an objective standard of reasonableness.’” 

466

U.S. at 688). This court “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged conduct might be considered sound trial

strategy.” 

466 U.S. at 689). The second prong requires a claimant “to

demonstrate that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of [his trial] would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.’” 

original) (quoting 

). Although a petitioner must prove both deficient performance and prejudice, “there is no

reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order

or even to address both components of the inquiry if the defendant makes an insufficient showing

on one[.]” 

.

       “Surmounting Strickland’s high bar is never an easy task[,]” 

(internal quotation marks omitted); however, “[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.” 

Court

recently explained the interaction between Strickland and § 2254(d):

       The standards created by Strickland and § 2254(d) are both highly
       deferential, and when the two apply in tandem, review is doubly so. The

                                              -8-
       Strickland standard is a general one, so the range of reasonable applications
       is substantial. Federal habeas courts must guard against the danger of
       equating unreasonableness under Strickland with unreasonableness under §
       2254(d). When § 2254(d) applies, the question is not whether counsel’s
       actions were reasonable. The question is whether there is any reasonable
       argument that counsel satisfied Strickland’s deferential standard.

(quotation marks omitted). Furthermore, “because the Strickland standard

is a general standard, a state court has even more latitude to reasonably determine that a defendant

has not satisfied that standard.” Knowles v. Mirzayance, 

, 123 (2009). “[E]valuating

whether a rule application was unreasonable requires considering the rule’s specificity.”

Yarborough v. Alvarado, 

, 664 (2004). “The more general the rule, the more leeway

courts have in reaching outcomes in case-by-case determinations.” 

that he was denied the effective assistance of counsel because his trial

counsel did not consult with or call a psychological witness concerning the complainant. In support

of this claim, Piontek has cited a report by Terrence Campbell, Ph.D., which analyzes the

complainant’s testimony in relation to other claims of childhood sexual abuse; a childhood sexual

abuse accommodation syndrome (“CSAAS”) study; and an affidavit by appellate counsel opining

that Piontek should have retained a psychiatric expert. The state court discussed this claim and held

that it failed each prong of the Strickland test. Since the state court considered both prongs, its

conclusion with respect to each is subject to deferential review under § 2254(d). Cf. 

(finding that “review is not circumscribed by a state court conclusion with respect to

prejudice, as neither of the state courts below reached this prong of the Strickland analysis”).

       First, the state court found that, “assuming psychiatric experts would testify consistent with

Piontek’s arguments,” the expert testimony that Piontek’s trial counsel failed to proffer “would

appear inadmissible under MRE 702 because they are not the product of reliable principles and

                                                -9-
methods.” People v. Piontek, No. 268048, 

, at *6 (Mich. Ct. App. Apr. 26, 2007).

Michigan Rule of Evidence 702 provides:

       If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to
       determine a fact in issue, a witness qualified as an expert by knowledge, skill,
       experience, training, or education may testify thereto in the form of an
       opinion or otherwise if (1) the testimony is based on sufficient facts or data,
       (2) the testimony is the product of reliable principles and methods, and (3)
       the witness has applied the principles and methods reliably to the facts of the
       case.

Mich. R. Evid. 702. The state court found Piontek’s CSAAS study unreliable because the study

concluded “that further study is needed in circumstances presented in cases such as this.” 

state court found “to the extent Piontek would present his CSAAS study to determine

whether the abuse actually occurred, this would also be improper.” 

v. Peterson,

, 867 (Mich. 1995) (holding CSAAS evidence is not admissible to show whether

sexual abuse actually occurred)). As to Campbell’s findings about the complainant’s disclosure of

Piontek’s abuse, the state court found that “to the extent Campbell’s findings attack the

complainant’s recollection of events . . . this would arguably amount to an improper attack on the

complainant’s credibility.” 

537 N.W.2d at 866). Since Piontek’s proffered

expert testimony was likely foreclosed by Michigan Rule of Evidence 702 and Peterson, the state

court concluded that trial counsel’s failure to proffer psychiatric expert testimony “cannot be said

to have risen to a level of deficient performance.” 

a petition for the writ, ‘[t]he federal courts must defer to a state court’s

interpretation of its own rules of evidence and procedure.’” Shahideh v. McKee, 488 F. App’x 963,

965 (6th Cir. 2012) (quoting Miskel v. Karnes, 

, 453 (6th Cir.2005)); see also

Bradshaw v. Richey, 

, 76 (2005) (“We have repeatedly held that a state court’s

                                                -10-
interpretation of state law, including one announced on direct appeal of the challenged conviction,

binds a federal court sitting in habeas corpus.”). Acknowledging the deference this court owes to

the state court, its determination that Michigan Rule of Evidence 702 and Peterson foreclose

Piontek’s proffered expert testimony is unimpeachable.

       Although the federal district court denied Piontek’s petition, it found that the state court’s

conclusion regarding the inadmissibility of Campbell’s findings “likely is incorrect.” Piontek v.

Palmer, No. 08-15074, 

, at *8 (E.D. Mich. Mar. 20, 2012). We disagree. The

district court based its conclusion on People v. Beckley, 

(Mich. 1990), which states

that “aspects of [CSAAS] which specifically relate to the particular behaviors which become an

issue in the case are admissible.” 

The “issue” that Beckely refers to, however, is

inapposite in this case. Beckley held “that evidence of behavioral patterns of sexually abused

children is admissible for the narrow purpose of rebutting an inference that a complainant’s

postincident behavior was inconsistent with that of an actual victim of sexual abuse, incest or rape.”

(internal citations omitted) (internal quotation marks omitted). That holding was

reaffirmed in Peterson:

       [W]e reaffirm our holding in Beckley that (1) an expert may not testify that the sexual
       abuse occurred, (2) an expert may not vouch for the veracity of a victim, and (3) an
       expert may not testify whether the defendant is guilty. However, we clarify our
       decision in Beckley and now hold that (1) an expert may testify in the prosecution’s
       case in chief regarding typical and relevant symptoms of child sexual abuse for the
       sole purpose of explaining a victim’s specific behavior that might be incorrectly
       construed by the jury as inconsistent with that of an actual abuse victim, and (2) an
       expert may testify with regard to the consistencies between the behavior of the
       particular victim and other victims of child sexual abuse to rebut an attack on the
       victim’s credibility.

Peterson, 

, 859 (Mich. 1995). The Beckley holding supports, not impugns, the state

court’s conclusion that evidence regarding CSAAS proffered by Piotnek would have been

                                                -11-
inadmissible. It would have been incomprehensible for any defense counsel to proffer the study to

rebut an attack on complainant’s credibility, and the study was inadmissible for any other purpose.

See 

; 

. As such, the state court concluded

that Piontek’s trial counsel’s failure to proffer likely inadmissible expert testimony “cannot be said

to have risen to a level of deficient performance.” Piontek, 

, at 6. This

conclusion is a reasonable application of the first prong of Strickland. Defense counsel does not

perform deficiently under Strickland by failing to undertake futile tasks or raise meritless claims.

See McAuliffe v. United States, 514 F. App’x 542, 549 (6th Cir. 2013).

        The state court also held that Piontek did not show prejudice as required under Strickland’s

second prong. “Strickland’s test for prejudice is a demanding one,” Storey v. Vasbinder, 

, 379 (6th Cir. 2011), and requires a petitioner to prove that the “likelihood of a different result”

is “substantial, not just conceivable,” 

. Even assuming arguendo that trial

counsel was deficient, Piontek must show “that counsel’s errors were so serious as to deprive [him]

of a fair trial,” 

, and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different,” 

Piontek claims that expert testimony would have not only helped the jury to understand the

complainant’s “process of recall and disclosure,” but also altered the verdict. The state court

rejected this argument, finding that trial counsel’s failure to call an expert psychological witness

“was not outcome determinative in light of defense counsel’s effective cross-examination of the

complainant during which the complainant admitted inconsistencies in her recollection and

disclosure of events regarding Piontek’s abuse.” Piontek, 2007 WL1227705, at *6.




                                                 -12-
       Trial counsel subjected the complainant to sustained cross-examination regarding her

motives, her recall of the sexual assaults, and the consistency and reliability of her disclosures. For

instance, trial counsel elicited from the complainant an admission that her journals contained

commingled passages of observations, fiction, and lyrics and were partly addressed to imaginary

friends. Trial counsel also elicited the complainant’s admission that only one of her three journals

mentioned Piontek and that the journals expressed disdain for several of the complainant’s family

members and acquaintances.         Trial counsel further drew out inconsistencies between the

complainant’s accounts of the frequency of and circumstances under which the sexual assaults took

place. Then, during closing arguments, trial counsel vigorously contended that the complainant’s

testimony was unreliable; that the complainant had alternative motives for the allegations of sexual

assault; that the diaries were unreliable as to the complainant’s experiences and, in particular, to her

relationship with Piontek; and that the details of the complainant’s disclosure and testimony

regarding the sexual assaults were too sparse to be trustworthy. The state court determined that

defense counsel’s cross-examination defeated any argument that Piontek was denied a fair trial

because of the want of expert testimony. Applying the deference and latitude required by § 2254(d),

the state court provided a “reasonable argument” that Piontek was not prejudiced by trial counsel’s

performance.

       In sum, the state court made reasonable determinations that Piontek cannot satisfy either

prong of Strickland’s standard for ineffective assistance of counsel. See 

.

Accordingly, the district court’s denial of habeas relief to Piontek is affirmed.




                                                     -13-