Michael Maurino v. RICHARD JOHNSON , Warden

*The Honorable John D. Holschuh, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0144P (6th Cir.)
File Name: 00a0144p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M ICHAEL M AURINO ,
Petitioner-Appellant,
v.
R ICHARD J OHNSON , Warden,
Respondent-Appellee.
;>

1
No. 98-1332
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-71622—Lawrence P. Zatkoff, Chief District Judge.
Argued: September 20, 1999
Decided and Filed: April 24, 2000
Before: KENNEDY and NORRIS, Circuit Judges;
HOLSCHUH*, District Judge.
_________________
COUNSEL
ARGUED: James Sterling Lawrence, Detroit, Michigan, for
Appellant. Vincent J. Leone, OFFICE OF THE ATTORNEY
GENERAL, HABEAS CORPUS DIVISION, Lansing,

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2 Maurino v. Johnson No. 98-1332
Michigan, for Appellee. ON BRIEF: James Sterling
Lawrence, Detroit, Michigan, for Appellant. Vincent J.
Leone, OFFICE OF THE ATTORNEY GENERAL,
HABEAS CORPUS DIVISION, Lansing, Michigan, for
Appellee.
KENNEDY, J., delivered the opinion of the court, in which
NORRIS, J., joined. HOLSCHUH, D. J. (pp. 19-26),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
KENNEDY, Circuit Judge. Petitioner, Michael J. Maurino,
appeals the District Court’s denial of his request for a writ of
habeas corpus. Following a jury trial in the Detroit
Recorder’s Court, petitioner was found guilty of second-
degree murder, M.C.L. § 750.317, M.S.A. § 28.549, and
possession of a firearm during the commission of a felony,
M.C.L. § 750.227b, M.S.A. § 28.424(2). He was sentenced
to twenty-five to seventy-five years imprisonment for the
murder conviction plus two years consecutive imprisonment
for the felony-firearm conviction. Petitioner filed a motion
for a New Trial and a Motion to Set Aside the Sentence and
for Resentencing, which were denied. Petitioner, then
appealed to the Michigan Court of Appeals, which affirmed
his conviction. The Supreme Court of Michigan denied
petitioner’s request for leave to appeal. He then filed a habeas
petition in state court, which was denied, as were his
subsequent state appeals. After exhausting his state remedies,
petitioner filed a petition for a writ of habeas corpus in federal
court. The district court denied this petition and the petitioner
appealed. On appeal petitioner raises three issues: (1)
whether petitioner was denied a fair trial due to the bias of the
trial judge against defense counsel; (2) whether petitioner was
denied the effective assistance of counsel where a critical
defense witness was not called; and (3) whether the trial
prosecutor improperly acted as a witness depriving petitioner

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26 Maurino v. Johnson No. 98-1332
said the petitioner had given her a bullet with the
statement that “this one’s for Vicki,” thereby resulting in
a substantial and injurious influence on the verdict.
Since there is grave doubt as to whether the prosecutorial
misconduct created a substantial and injurious influence
on the verdict, the error was not harmless. Accordingly,
then, the Michigan Supreme Court engaged in an
unreasonable application of Chapman’s harmless error
test, and under § 2254(d), a writ of habeas corpus should
issue.
Also, even more recently, this Court held that an
inflammatory cross-examination of the defendant and an
improper closing argument (less egregious in my view than
the prosecutorial misconduct in the present case), required the
granting of a conditional writ of habeas corpus. In Boyle v.
Million, 201 F.3d 711 (6th Cir. 2000), this Court said:
It is true that the case against Boyle was relatively
straightforward and strong. Given the egregious and
inflammatory nature of the behavior and arguments of
the prosecutor throughout trial, however, we are left with
“grave doubt” as to whether the prosecutorial errors “had
a substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson,
507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed.2d 353
(1993)(quoting Kotteakos v. United States, 328 U.S. 750,
776, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)); see also
O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct. 992,
130 L. Ed.2d 947 (1995).
Id. at 717-18.
For the reasons stated above, I would reverse the judgment
of the District Court and order that a conditional writ of
habeas corpus be granted unless the State of Michigan
commences trial proceedings against Maurino within 180
days of this opinion.
No. 98-1332 Maurino v. Johnson 3
of his constitutional right to confrontation, by asserting
without evidence that petitioner told a waitress he intended to
kill the victim. Because we find that reasonable jurists could
find the state court’s decision to be a reasonable application
of Supreme Court law, we shall affirm.
I. Facts
On August 6, 1984, petitioner went to the Silver Cricket
Lounge to see the victim, Vicki Lynn Lee. Prior to arriving
at the lounge, petitioner consumed both cocaine and alcohol
and while at the lounge, petitioner continued to consume
alcohol. Petitioner and the victim left the lounge together
around 2:00 a.m. Approximately a half hour after leaving the
lounge, petitioner brought the victim to Westland Medical
Center because she had been shot. On September 2, 1984, the
victim died from the gunshot wound. Petitioner conceded
that he was with the victim when she was shot and that the
gun in his possession was the weapon which discharged the
bullet. Petitioner, however, contended that the incident was
an accident and that he was not aware that the gun was
loaded.
Petitioner made two verbal and one written statements to
police about the incident. The first statement occurred at the
hospital immediately following the shooting. Upon bringing
the victim into the hospital, the petitioner told the security
guard on duty that he had shot the victim and that it was an
accident. The police were called and petitioner was given
Miranda warnings. Petitioner admitted to shooting the victim
and stated that the gun discharged after he had racked the gun.
He said that he and the victim had been arguing and that he
had exited the car. The victim followed him in the car as he
walked and convinced him to get back inside the vehicle.
They began arguing again and the petitioner hit the
windshield three or four times. He then withdrew a handgun
from his jacket and racked the gun, removed the clip and
pointed the gun at her. He said to the victim, “You see how
mad you make me? You see what you make me do? See

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4 Maurino v. Johnson No. 98-1332
what you can make me do?” At that point, the gun
discharged.
He was arrested for investigation of a homicide and
transported to the police station. At the police station, the
petitioner was interrogated. In response to questioning by the
police, he gave a more detailed description of the events of
the evening. Prior to giving this statement he again was
advised of his Miranda rights. He also responded in the
affirmative to an inquiry as to whether he was intoxicated. In
this second statement, he explained that he had been at a
friend’s home drinking when he received a call from his
stepson indicating that his stepson knew where the
petitioner’s niece was located. The petitioner stated that he
had been looking for his niece for a couple of days and that he
intended to bring her home once he found her. Knowing that
the individual who was with his niece was a dangerous man,
the petitioner brought along a gun for protection. Before
going to find his niece, he stopped by the victim’s place of
employment to inform her of where he would be. The victim
requested that he stay until her shift ended and take her with
him. He complied and had a few drinks while he waited. The
victim and the petitioner left the lounge around 2:00 a.m. in
a Pontiac Firebird. He stated that he and the victim got into
an argument about the manner in which the victim danced at
her place of employment. He said that in response to his
comments, the victim lied to him and that this lying made him
stop the car in a bowling alley parking lot. Petitioner got out
of the car and proceeded to walk away from the victim.
While in the parking lot, petitioner fired a shot in the air. The
victim requested that the petitioner return to the car and the
petitioner agreed. Once back in the car the petitioner
attempted to unload the gun by removing the clip and racking
the gun, which expelled a bullet. The victim and the
petitioner continued to argue and the petitioner hit the
windshield a number of times. He also continued to play with
the gun by racking it. Sometime during the argument, the
petitioner pointed the gun at the victim and stated, “See how
mad you make me?” The petitioner then racked the gun and
the gun discharged. At the end of the interrogation, petitioner
No. 98-1332 Maurino v. Johnson 25
determining the jury’s verdict,” that error is not harmless.
And, the petitioner must win.
Id. at 436.
Citing O’Neal, this Court in the Barker case said:
Only if a federal habeas court can say with certainty
that a trial error had little to no impact on the judgment,
should the judgment stand. See id. at 435-38, 115 S.Ct.
at 994-995. In this matter, the only thing of which this
court is certain is that the erroneous jury instruction left
the door wide open. A reasonable juror could have very
well walked through the door and rejected Barker’s claim
for self defense because that juror believed that Madsen’s
assault would not have led to death or serious bodily
injury, thereby resulting in a substantial and injurious
influence on the verdict. Since there is grave doubt as to
whether the erroneous jury instruction created a
substantial and injurious influence on the verdict, the
error was not harmless. Accordingly, then, the Michigan
Supreme Court engaged in an unreasonable application
of Chapman’s harmless error test, and under § 2254(d),
a writ of habeas corpus should issue.
199 F.3d at 874.
With only slight paraphrasing, this same language applies
equally to this case:
Only if a federal habeas court can say with certainty
that a trial error had little to no impact on the judgment,
should the judgment stand. See O’Neal v. McAninch,
513 U.S. 432 at 435-38, 115 S.Ct. at 994-995. In this
matter, the only thing of which this court is certain is that
the prosecutorial misconduct left the door wide open. A
reasonable juror could have very well walked through the
door and rejected Maurino’s claim that he did not intend
to create a high risk of death or great bodily harm to his
girlfriend because that juror believed the prosecutor’s
representation that there was an impartial person who

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24 Maurino v. Johnson No. 98-1332
1999), in its interpretation of what must be shown to be an
“unreasonable application of federal law,” if a habeas
petitioner can demonstrate that the trial error meets the Brecht
standard, “he will surely have demonstrated that the state
court’s finding that the error was harmless beyond a
reasonable doubt – the Chapman standard – was outside the
realm of plausible credible outcomes, and therefore resulted
from an unreasonable application of Chapman.” Nevers at
371-372. In my view, this is such a case. The petitioner has
shown that: (1) there is no indication whatsoever that the
Michigan court applied the harmless error Chapman standard;
(2) the prosecutorial misconduct meets the test of Brecht, if
Brecht is to be applied, and was not harmless error; and (3)
the Michigan court’s decision therefore involved an
unreasonable application of clearly established federal law as
determined by the Supreme Court of the United States.
It is my belief that two very recent decisions by this Court
support the conclusion I have reached in this case. In Barker
v. Yukins, 199 F.3d 867 (6th Cir. 1999), the petitioner for a
writ of habeas corpus had been convicted of first degree
murder in Michigan. The defense was that petitioner killed
the decedent while resisting a rape. The error of the trial
court was in refusing to instruct the jury that petitioner was
entitled to use deadly force to resist an imminent rape. The
Michigan Supreme Court denied the petition on the ground
that the error was harmless because, under the evidence
presented at trial, no reasonable juror could have believed
deadly force was necessary to prevent a rape.
This Court reversed the district court’s denial of habeas
relief and ordered that a conditional writ of habeas corpus be
granted unless Michigan commenced a new trial within 180
days of the opinion. This Court recognized the Supreme
Court’s decision in O’Neal v. McAninch, 513 U.S. 432
(1995), in which the Supreme Court emphatically stated:
When a federal judge in a habeas proceeding is in grave
doubt about whether a trial error of federal law had
“substantial and injurious effect or influence in
No. 98-1332 Maurino v. Johnson 5
provided the police with a written statement which conformed
with the verbal statements he had made during the
interrogation.
At the preliminary exam, the prosecutor proffered an expert
witness to testify about the firearm used in this incident. The
witness testified that he racked the gun fifty times and that
this racking of the gun did not result in the discharge of the
gun. He also testified that when the base of the gun was
struck with a metal hammer four times the gun did discharge.
Petitioner was present at the preliminary examination when
this testimony was given.
At trial, the petitioner testified on his own behalf. His
version of the events differed from his previous statements in
some important ways. He stated that the first shot, in the
bowling alley parking lot, was an unexpected gun discharge.
He said that he was taking the gun out of his jacket when the
gun discharged. In a previous statement, he stated that he had
intentionally fired the gun in the air. He also clarified that he
racked the gun while the clip was still in the gun; thus,
explaining how the gun could eject one bullet from the
chamber while placing another in the chamber. In addition,
he stated that he could not remember how the gun discharged.
He did not know whether he was hitting the windshield with
the gun, but he did remember that he was playing with the
gun prior to the gun discharging. Petitioner’s testimony was
the only evidence presented by the defense.
The prosecution offered not only the petitioner’s prior
statements as evidence, but also presented the testimony of
numerous witnesses. The firearms expert testified to the same
information that he presented at the preliminary hearing. The
victim’s father testified that he witnessed bruises on the
victim’s wrist when he visited her in the hospital. The
prosecution, however, offered no medical testimony as to how
or when these bruises occurred. Finally, the prosecutor
presented the testimony of individuals who worked with the
victim. None of these individuals were questioned about or
testified to hearing the petitioner threaten the victim.

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6 Maurino v. Johnson No. 98-1332
Nevertheless, on cross-examination of the petitioner, and after
the prosecution had rested its case, the following exchange
between the prosecutor and the petitioner took place:
Q: And, when she [the victim] became a dancer, you
knew the kind of place it was, is that right?
A: Yes, I did.
Q: In fact, you had been in the bar at an earlier – earlier
times, when she was a waitress, isn’t that right?
A: Yes, I did.
Q: Did you ever deliver a bullet to her?
A: A what?
Q: A bullet?
A: No.
Q: Didn’t you in fact deliver a bullet to one of the
waitresses, and say to her that, “This one’s for
Vicki,” several – just a few months before this?
A: No.
Q: And, if someone came in, and testified to that effect,
that –
Mr. Strauss [defense counsel]: (Interposing) I’d
object, this is
improper cross-
examination.
The Witness: They’d be lying, because I’ve never
done anything like that.
Mr. Strauss: I’ll withdraw the objection.
Ms. Petito [prosecutor]: Okay.
Q: Now, let’s – you in fact –
A: (Interposing) Can I ask you something? How come
you insinuate something like this, that is an out-and-
out lie?
Ms. Petito: Well, your Honor –
Mr. Strauss: (Interposing) Your Honor –
No. 98-1332 Maurino v. Johnson 23
error. As the Supreme Court said in Kotteakos v. United
States:
The inquiry cannot be merely whether there was enough
to support the result, apart from the phase affected by the
error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.
328 U.S. 750, 765 (1946).
The majority states that if petitioner had been convicted of
first degree murder they would agree that the prosecutorial
misconduct had a substantial and injurious effect on the
outcome of the trial, but since petitioner was convicted of
second degree murder, the prosecutorial misconduct did not
have a substantial and injurious effect on the outcome of the
trial. I cannot, however, see that the distinction between first
degree murder and second degree murder is a sufficient basis
for denial of relief in this case. A defendant’s intent is a
critical element of both crimes under Michigan law, and the
prosecutorial misconduct involved proving that intent in an
egregious manner and, at the same time, impugning the
credibility of petitioner’s own testimony concerning his
intent. In my view, basic fairness, as well as the
constitutional right to due process, prohibits such conduct
and, regardless of the degree of the offense in question, such
conduct cannot avoid having a substantial and injurious effect
on the outcome of the trial.
The Michigan Court of Appeals, in finding harmless error,
was required to apply the test set forth in Chapman v.
California, 386 U.S. 18 (1967), i.e., whether the prosecutorial
misconduct was “harmless beyond a reasonable doubt.”
There is absolutely no indication in its opinion that it
followed this clearly established federal law as determined by
the Supreme Court of the United States. To the contrary, it
merely found that “it is unlikely that he (the defendant)
suffered any prejudice as a result” (of the prosecutorial
misconduct). J.A., Part 1, p. 51. Even under the high
requirement of Nevers v. Killinger, 169 F.3d 352 (6th Cir.

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22 Maurino v. Johnson No. 98-1332
2In Section II(D) of the majority opinion, Judges Kennedy and Norris
agree that “the prosecutor’s statements were egregious prosecutorial
misconduct.”
the grant of habeas relief even if it did not substantially
influence the jury’s verdict.”2
Third, even if the Brecht standard of harmless error is to be
applied and this case does not fall within the exception noted
in Brecht, I still would find that the defendant should be given
habeas relief. Contrary to the majority view, I do not believe
that simply because the state did not have to prove an intent
to kill, the prosecutorial misconduct did not have a
“substantial and injurious effect or influence in determining
the jury’s verdict.” The defense was based entirely on
defendant’s contention that the fatal shot was fired
accidentally without any intent to kill or injure his girlfriend
or to create a high risk of death or injury to her. The
defendant’s intent was a critical element of the charged
offense, and the defendant’s own testimony regarding his
intent was the foundation of his defense. The prosecutor’s
effort to destroy the defendant’s credibility before the jury and
to put before the jury a matter that was not in evidence – the
alleged testimony of a disinterested person that would prove
an intent by the defendant to kill his girlfriend – in violation
of defendant’s constitutional right to cross-examine such a
witness, could not, in my opinion, fail to have an influence on
the jury. As the majority opinion implicitly finds, the standard
cautionary instruction was inadequate to “unring the bell,”
and defendant’s reaction to the prosecutor’s statements, if
anything, only served to pit his credibility against the
credibility of a disinterested person who was not produced as
a witness and subjected to cross-examination.
The majority finds that, apart from the attempt by the
prosecutor to influence the jury in a totally improper way,
there was sufficient admissible evidence in the record, in the
form of petitioner’s statements to the police, to support the
jury’s verdict. This, I believe, is an improper approach to
determine whether the prosecutorial misconduct was harmless
No. 98-1332 Maurino v. Johnson 7
The Court: (Interposing) Now, just a moment.
Ms. Petito: I can make a showing.
The Court: Just a moment.
Ms. Petito: If we want to get into it.
The Court: The lawyers ask the questions, not the
witnesses. I have told the jury, at least
six times, anything the lawyers say,
either lawyer, is not evidence, it’s the
answers of the witnesses that provide
it. The mere fact that a lawyer, either
lawyer, says something, doesn’t make
it true.
The Witness: I apologize, your Honor.
The Court: All right.
Mr. Strauss: Your Honor, I have a motion. I ask
that you hold the prosecuting attorney in contempt of
court for this comment. She just rested her case, this
afternoon. And, if she had some competent
evidence that my client had sent a bullet, by a
waitress, just a couple of months before this death,
here, to this Vicki, while she was working, then she
should have presented it in her case-in-chief.
The Court: Now –
Mr. Strauss: (Interposing) And, I object, and move
it to be stricken, and move for a mistrial. And, you
can deny them all, if you want, but they are on the
record.
The Court: Anything the lawyers say is not
evidence, either what Mr. Strauss said, or Ms. Petito.
Let’s proceed with the case. Motions are denied.

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8 Maurino v. Johnson No. 98-1332
At the close of evidence, the court instructed the jury that
in order to find the defendant guilty of second-degree murder,
the jury had to find that the defendant had either (1) the intent
to kill; (2) the intent to inflict great bodily harm; or (3) the
intent to create a high risk of death or great bodily harm with
knowledge that such is the probable result. The defense
counsel requested that the court instruct the jury not only on
second-degree murder, but also on manslaughter. The court
complied with this request and the jury was released for
deliberation. The jury returned a verdict finding the petitioner
guilty of second-degree murder and guilty of possession of a
firearm in the commission or in the attempt to commit a
felony.
II. Discussion
A. Standard of Review
Because petitioner filed his petition for a writ of habeas
corpus after April 24, 1996 this court applies the standard of
review as set forth in 28 U.S.C. § 2254(d), as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).
This provision states as follows:
(d) 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
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (1994 & Supp. 1999).
Before applying this new standard to the case before the court,
this court must determine how this new standard differs from
No. 98-1332 Maurino v. Johnson 21
not have a substantial injurious effect on the outcome of the
trial. I have several problems with this.
First, the issue before us, under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), is whether the
decision of the Michigan Court of Appeals involved an
unreasonable application of clearly established federal law, as
determined by the Supreme Court of the United States. I
think it is clear from the state court’s opinion that it did not
apply the criteria set forth in Darden v. Wainwright, 447 U.S.
168, 181 (1985) or, for that matter, the Angel criteria adopted
in this Circuit, to determine whether the admitted
prosecutorial misconduct violated defendant’s constitutional
right to a fair trial. Furthermore, as discussed later, I think it
is also clear that the state court did not apply the Chapman
standard in its finding of harmless error. In my view,
applying the Supreme Court’s Darden criteria or the Angel
criteria of this Circuit, the result is that defendant’s
constitutional right to a fair trial was violated.
Second, even if the violation of defendant’s constitutional
right to a fair trial is subject to the Brecht standard of
harmless error, I believe that the prosecutorial misconduct in
this case was so outrageous that it falls within the exception
noted in the following footnote in Brecht:
Our holding does not foreclose the possibility that in an
unusual case, a deliberate and especially egregious error
of the trial type, or one that is combined with a pattern of
prosecutorial misconduct, might so infect the integrity of
the proceeding as to warrant the grant of habeas relief,
even if it did not substantially influence the jury’s
verdict. Cf. Greer v. Miller, 483 U.S.756, 769, 107 S.Ct.
3102, 3110, 97 L.Ed.2d 618 (1987) (STEVENS, J.,
concurring in judgment). We, of course, are not
presented with such a situation here.
507 U.S. at 638 n.9. In my opinion, the deliberate and
especially egregious prosecutorial misconduct in the present
case so infected “the integrity of the proceeding as to warrant

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20 Maurino v. Johnson No. 98-1332
deem the error as not being harmless and should reverse the
conviction. O’Neal v. McAninch, 513 U.S. 432, 436 (1995).
In Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999), the
Sixth Circuit set forth the criteria for determining whether
habeas relief should be granted for prosecutorial misconduct:
To grant relief in such cases as this, we must find that the
prosecutor’s comments constituted more than simply trial
error under state law. The misconduct must be “so
fundamentally unfair as to deny him due process,”
Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct.
1868, 40 L.Ed.2d 431 (1974), based on “the totality of
the circumstances” of the case, taking into account
the degree to which the remarks complained of have
a tendency to mislead the jury and to prejudice the
accused; whether they are isolated or extensive;
whether they were deliberately or accidentally
placed before the jury, and the strength of the
competent proof to establish the guilt of the accused.
Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en
banc) (quoting from United States v. Leon, 534 F.2d 667,
677 (6th Cir. 1976)).
175 F.3d at 445-46.
The majority opinion appears to apply the test for
determining whether the prosecutorial misconduct in this case
violated the defendant’s right to due process, as set forth in
Kincade and the earlier case of Angel v. Overberg, 682 F.2d
605, 608 (6th Cir. 1982) and, with the exception of the
prosecutorial misconduct being isolated, “every other prong
of the [Angel] test” has been satisfied. Opinion, Section
II(D). The majority nevertheless then applies the Brecht
standard for harmless error and, because a second degree
murder conviction in Michigan does not require an intent to
kill, and there was sufficient evidence to support a finding of
intent to create a high risk of death or bodily harm, the
conclusion is reached that the prosecutorial misconduct did
No. 98-1332 Maurino v. Johnson 9
the standard that this court previously applied on habeas
review.
In Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999), this
Circuit considered the appropriate interpretation of the
standard set forth in § 2254(d). The Nevers court reviewed
the interpretations of this provision as set forth by other
circuits. The court noted that other circuits viewed the
“contrary to” clause as encompassing a different challenge to
the state court decision than those challenges pursued under
the “unreasonable application” clause. For example, the Fifth
and Seventh Circuits contend that “[t]he ‘contrary to’ clause
in § 2254(d)(1) addresses questions of pure law; the
‘unreasonable application’ clause in § 2254(d)(1) addresses
mixed questions of law and fact; and § 2254(d)(2) addresses
questions of pure fact. Nevers, 169 F.3d at 358. The
Eleventh Circuit has adopted a two-prong test in which the
court first must “determine the ‘clearly established’ law at the
relevant time.” Neelley v. Nagle, 138 F.3d 917, 922 (11th
Cir. 1998). Then the court must apply either the “contrary to”
clause if it is a question of law and the “unreasonable
application” clause if it is a mixed question of law and fact.
Id. at 923-34. The First Circuit, however, has rejected the
classifications of the other circuits and instead has approached
the issue in the following manner:
First, the habeas court asks whether the Supreme Court
has prescribed a rule that governs the petitioner’s claim.
If so, the habeas court gauges whether the state court
decision is “contrary to” the governing rule. In the
absence of a governing rule, the “contrary to” clause
drops from the equation and the habeas court takes the
second step. At this stage, the habeas court determines
whether the state court’s use of (or failure to use) existing
law in deciding the petitioner’s claim involved an
“unreasonable application” of Supreme Court precedent.
O’Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998).
Although acknowledging that other circuits had taken a
variety of approaches in interpreting this provision, the

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10 Maurino v. Johnson No. 98-1332
1Although the petitioner argues that this case falls under the
“contrary to” clause because the lower court analyzed his claim under a
Seventh Circuit case that was overturned by the Supreme Court, he is
incorrect. The standard of review set forth in § 2254 (d) applies to this
court’s review of the state court decision, not our review of the district
court decision. This court reviews the district court’s legal conclusions
de novo and its factual findings for clear error. See Nevers, 169 F.3d at
357. Because the petitioner does not assert either (1) “that the facts
before the state trial court . . . were ‘essentially the same as those the
Supreme Court has faced earlier’ and that the state court reached a result
different than that reached by the Supreme Court” or (2) “that the state
courts failed to apply the correct legal standards” this court’s analysis
focuses on the “unreasonable application” prong. Tucker v. Prelesnik,
181 F.3d 747, 752 (6th. Cir. 1999).
2This Court avoids this issue because the Supreme Court has granted
certiorari and heard arguments in a case in which the issue before the
Court is the appropriate interpretation of the meaning of § 2254(d). See
Williams v. Taylor, 119 S. Ct. 1355, 143 L. Ed.2d 516 (1999).
Nevers court found that it did not have to chose which
specific approach it found most persuasive because the issue
in the case clearly fell under the unreasonable application
prong of the statute. The case before this court also falls
under the unreasonable application prong1, so this court finds
it unnecessary to choose which approach is most appropriate
to adopt.2
The Nevers court announced the standard of deference to
afford state court decisions under the “unreasonable
application” prong of § 2254(d). This standard requires this
court to uphold a state court’s determination unless the
“unreasonableness of a state court’s application of clearly
established Supreme Court precedent will not be ‘debatable
among reasonable jurists,’ Drinkard, 97 F.3d at 769, if it is ‘so
offensive to existing precedent, so devoid of record support,
or so arbitrary, as to indicate that it is outside the universe of
plausible, credible outcomes.’” 169 F.3d at 362. We believe
that it is appropriate to apply this standard to this case.
Applying the Nevers standard to the facts of this case, this
court must ask whether there is a clearly established law
No. 98-1332 Maurino v. Johnson 19
1Prosecutorial misconduct has not been considered a “structural
defect” in the trial proceedings that would require an automatic reversal.
See Arizona v. Fulminante, 499 U.S. 279 (1991). I, nevertheless, have
felt that if, in applying the criteria for determining whether prosecutorial
misconduct rises to the level of a violation of defendant’s constitutional
right to due process, see Darden v. Wainwright, 477 U.S. 168, 181
(1985); Swofford v. Detella, 101 F.3d 1218 (7th Cir. 1996), it is found
that this fundamental right to a fair trial has been violated, there should be
no place for a harmless error analysis. If, in applying that criteria, the
prosecutorial misconduct does not rise to the level of a constitutional
violation, there is no basis for habeas relief. Darden, 477 U.S. at 181
n.15. The misconduct in such a case can be deemed to be harmless error,
but this is not the result of a Brecht harmless error analysis. By applying
a harmless error analysis when there has been a constitutional violation,
egregious prosecutorial misconduct is permitted if the state’s case is
deemed to be sufficiently strong, a result that not only reflects adversely
on the judicial process in criminal cases, but also does not serve as a
deterrent to prosecutorial abuse. The Sixth Circuit, however, has
specifically held that, in cases involving prosecutorial misconduct, the
reviewing court must apply a harmless error analysis. Eberhardt v.
Bordenkircher, 605 F.2d 275 (6th Cir. 1979); Pritchett v. Pitcher, 117
F.3d 959 (6th Cir. 1997). I respect and, of course, am bound by those
decisions.
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
HOLSCHUH, District Judge, concurring in part and
dissenting in part. I concur with the majority opinion
regarding the issues of alleged judicial bias and ineffective
assistance of counsel. It is only the issue of prosecutorial
misconduct that causes me to dissent from the opinion of my
colleagues.
Initially, and as a matter of law, I must agree with the
majority that the prosecutorial misconduct in this case is
subject to the doctrine of harmless constitutional error as set
forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).1 If,
however, a reviewing court is in “grave doubt” as to the
constitutional error’s impact on the verdict, the court should

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18 Maurino v. Johnson No. 98-1332
that these statements did not have a substantial and injurious
effect on the outcome of the trial. Determining that
reasonable jurists could find the state court’s decision to be a
reasonable application of Supreme Court law, we deny
petitioner’s third claim for relief.
III. Conclusion
For the foregoing reasons, this court denies petitioner’s
request for a writ of habeas corpus and affirms the judgment
of the District Court.
No. 98-1332 Maurino v. Johnson 11
which has been violated. The petitioner raises three issues on
habeas. The first issue -- judicial bias -- is a structural error
and if found, requires automatic reversal. The other two
issues -- the prosecutorial misconduct and the ineffective
assistance of counsel claims -- are to be reviewed for harmless
error. Prior to the AEDPA amendments, the Supreme Court
held in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710,
123 L. Ed.2d 353 (1993), that federal courts should apply a
higher harmless error standard when reviewing habeas claims
than is appropriate on direct review. The Court held that
habeas relief should be granted when the error “ha[s a]
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714.
Because the AEDPA amendments were intended to restrict
further federal courts’ review of state courts’ determinations
this appeal raises the question of whether the changes to
§ 2254(d) require this court to adopt a new method for
reviewing harmless error determinations. The Nevers court,
however, has held that the Brecht standard continues to be the
appropriate standard to apply on habeas review. 169 F.3d at
371. Because there has been no intervening Supreme Court
decision invalidating that panel’s decision, this panel
conforms to the holding in Nevers and applies the Brecht
standard in its review of the state court’s determination of
harmless error.
Accepting that the analysis set forth by the Nevers court is
the appropriate method for reviewing petitioner’s claims, the
court must first determine whether there is a “clearly
established federal law” applicable to the petitioner’s claim.
If there is, then the court must assess whether the state court’s
application of this law was reasonable in light of the great
deference afforded state courts. This court can overturn a state
court determination only if it finds that the unreasonableness
of the state court’s application of the “clearly established law”
is not debatable among reasonable jurists because it is “so
offensive to existing precedent, so devoid of record support,
or so arbitrary, as to indicate that it is outside the universe of
plausible, credible outcomes.” Nevers, 169 F.3d at 362.

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12 Maurino v. Johnson No. 98-1332
B. Judicial Bias
Petitioner claims that the state trial court judge was biased
against his counsel; thus, infringing on his Sixth Amendment
right to counsel. Petitioner asserts that there were numerous
times during trial where the trial judge spoke harshly to his
counsel, but he offers one specific exchange intended to
demonstrate the trial court’s bias. In this exchange, the trial
court, outside the presence of the jury, inquired of the
defendant whether he would like to change his counsel. He
suggested to the defendant that his counsel could not count
and insinuated that he thought defense counsel was a jerk. He
then proceeded to hold defense counsel in contempt of court,
though he did allow counsel to expunge himself of contempt
before the jury returned to the courtroom. Petitioner contends
that the animosity between the judge and his counsel so
infected his trial as to make it substantially unfair.
Because judicial bias infects the entire trial process it is not
subject to harmless error review. See Chapman v. California,
386 U.S. 18, 23 & n.8, 87 S. Ct. 824, 827-28 & n.8, 17 L.
Ed.2d 705 (1966) (stating that the right against coerced
confession, the right to counsel and the right to an impartial
judge were examples of constitutional rights “so basic to a
fair trial that their infraction can never be treated as harmless
error.”). Instead, the court is required to assess whether the
actions of the judge rose to the level of judicial bias. If the
court determines that the actions resulted in a constitutional
violation, then the court is required to overturn the state court
decision. In reviewing claims of judicial bias, this court is
guided by the decision in Liteky v. United States, 510 U.S.
540, 114 S. Ct. 1147, 127 L. Ed.2d 474 (1994). The Liteky
court held that “[a] judge’s ordinary efforts at courtroom
administration – even a stern and short-tempered judge’s
ordinary efforts at courtroom administration – remain
immune.” 510 U.S. at 556, 114 S. Ct. at 1157. The court
stated that “expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed
No. 98-1332 Maurino v. Johnson 17
The prosecutorial misconduct in this case can be analogized
to the trial error in the Nevers case. The Nevers court stated
that “[t]he issue at the heart of Nevers’s prosecution was not
what Nevers did, but why he did it.” 169 F.3d at 372.
Because it was the province of the jury to determine Nevers’s
credibility the court determined that the exposure of
extraneous information to the jury was not harmless under the
Brecht standard. This case does differ from Nevers in that the
trial court in Nevers accepted as true the affidavits of jurors
that the extraneous information influenced the jury’s decision-
making process. In this case, we have no finding that the
prosecutorial misconduct influenced the jury, so this court
must determine whether the prosecutorial misconduct had a
substantial and injurious effect on the outcome of the trial.
We find that it did not.
Petitioner argues that the prosecutor’s improper statements
were the only evidence offered as to his intent. Had petitioner
been convicted of first-degree murder we would agree that
these statements could have had a substantial and injurious
effect on the outcome of the trial. Petitioner, however, was
convicted of second-degree murder. Although second-degree
murder requires the prosecutor to prove intent, it does not
require the prosecutor to prove intent to kill. Rather, a
defendant can be convicted of second-degree murder if the
defendant has the intent to create high risk of death or great
bodily harm with knowledge that such is the probable result.
See People v. Porter, 425 N.W.2d 514 (Mich. App. 1988). At
trial, the prosecution’s theory of this case was that petitioner
was guilty of second-degree murder because he had the intent
to cause the risk of harm that resulted in the victim’s death.
The prosecution’s closing arguments focused on the fact that
the petitioner was waving around a dangerous weapon in an
agitated state. In particular, the prosecution noted that the
petitioner stated that he had pointed the gun directly at the
victim immediately prior to discharge. Petitioner’s statements
to the police above provided sufficient evidence of intent to
satisfy the requirement for a second-degree murder conviction
on this theory. Although we believe that the prosecutor’s
statement were egregious prosecutorial misconduct we find

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16 Maurino v. Johnson No. 98-1332
In every case, we consider the degree to which the
remarks complained of have a tendency to mislead the
jury and to prejudice the accused; whether they are
isolated or extensive; whether they were deliberately or
accidentally placed before the jury, and the strength of
the competent proof to establish the guilt of the accused.
Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en
banc).
Looking at the facts of this case in light of these factors, we
agree with the state court’s determination that the
prosecutor’s improper questions constitute prosecutorial
misconduct. Although the prosecutorial misconduct in this
case does not satisfy the continual and extensive prong of the
Angel test, it satisfies every other prong of the test and the
state court found it was egregious prosecutorial misconduct.
The prosecution had rested its case before raising the issue of
this threat, so a strong argument can be made that the
information was deliberately placed before the jurors in an
attempt to mislead them. Because there were no witnesses to
the shooting other than the decedent and the petitioner, the
jury’s decision turned on whether it found the petitioner’s
testimony to be credible. By insinuating that the petitioner
had threatened the decedent on a prior occasion, the
prosecutor called into question the defendant’s testimony
about his relationship with the decedent. While defendant’s
counsel withdrew his objection to the question after his
client’s answer in which he denied any threat, the prosecutor
then suggested to the court that she could “make a showing,”
despite the fact that she had already rested her case. At no
time during the presentation of her case had the prosecutor
even broached this subject with any of the witnesses she
presented. While the judge gave a general instruction that the
lawyers’ questions were not to be considered as evidence, the
judge never admonished the prosecutor nor did he specifically
instruct the jury to disregard the prosecutor’s statement. The
judge denied defense counsel’s motion to hold the prosecutor
in contempt of court, his motion for a mistrial, and his request
that the exchange be stricken from the record.
No. 98-1332 Maurino v. Johnson 13
as federal judges, sometimes display” do not establish “bias
or partiality.” Id. at 555-56, 114 S. Ct. at 1157.
Although the trial judge did display some animosity toward
defense counsel, this did not permeate the trial. Most, if not
all, of the disagreements between defense counsel and the
court occurred outside the presence of the jury. The state
court found that the trial court’s behavior did “not rise to the
level of error cited in the controlling case law.” Because the
state court’s decision was not “so clearly incorrect that it
would not be debatable among reasonable jurists” we deny
petitioner’s request for relief and affirm the district court’s
decision that the trial court’s action did not constitute judicial
bias.
C. Ineffective Assistance of Counsel
Petitioner’s second claim of error is that his trial counsel
was ineffective because he failed to proffer a defense witness
who would testify as to a likely cause of the bruises suffered
by the decedent. In support of his argument, the petitioner
offers the affidavit of Michael Dale Williams. This affidavit
states that on the day of the shooting, Michael, another
individual, and decedent were wrestling and that the decedent
stated that this wrestling was the cause of her bruises.
Petitioner contends that this hearsay would be admissible
under both M.R.E. 803(1), present sense impression, and
M.R.E. 803(3), then existing mental, emotional or physical
condition. Whether this testimony is admissible is not the
focus of this court’s review. Rather, the court must assess
whether the state court’s determination that counsel’s actions
were harmless was appropriate under the Brecht standard.
The standard for reviewing ineffective assistance of counsel
claims is set forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed.2d 674 (1984). This test requires a
reviewing court to assess whether counsel’s performance was
deficient. The court must determine whether counsel’s
performance was so deficient “that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687, 104 S. Ct. at 2064. If the

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14 Maurino v. Johnson No. 98-1332
petitioner demonstrates that his counsel was deficient, he then
must establish that this deficiency prejudiced the defense in
order to obtain relief. Id. This test requires the court to
utilize an objective standard of reasonableness. Id. at 688,
104 S. Ct. at 2064.
On direct appeal, the Michigan Court of Appeals applied
the Strickland test in evaluating petitioner’s claim. Although
the court did not specifically address the issue raised on
petitioner’s habeas claim – unwillingness to call a crucial
defense witness to testify – in its decision, its use of the
Strickland test demonstrates that it understood and applied the
appropriate standard in reviewing the petitioner’s claim of
ineffective assistance of counsel. We review this decision for
harmless error.
Applying Brecht to the facts of this case, this court finds
that any error that occurred was harmless error. On his direct
appeal, petitioner raised the issue of ineffective assistance of
counsel, but he did not request that the court hold an
evidentiary hearing; thus, this court can consider only the
evidence in the record. A review of that evidence
demonstrates that any error that occurred was harmless. The
petitioner “bears the burden of overcoming the presumption
that the challenged action might be considered sound trial
strategy.” Tucker, 181 F.3d at 754. The record shows that
defense counsel believed that the prosecution did not have
sufficient evidence to prove second-degree murder; thus, he
chose to limit the defense to the testimony of the defendant.
A review of the evidence presented at trial, of which defense
counsel was aware prior to trial, supports defense counsel’s
belief and leads this court to conclude that petitioner has not
overcome the presumption that defense counsel was
exercising sound trial strategy. Finding that the state court
decision should be upheld under the Brecht standard, this
court denies petitioner’s request for relief on this claim.
D. Prosecutorial Misconduct
The petitioner’s third claim is that the state court’s
determination that prosecutorial misconduct did not result in
No. 98-1332 Maurino v. Johnson 15
substantial prejudice at petitioner’s trial was erroneous.
Petitioner argues that this misconduct had an injurious effect
on the outcome of his trial because this misconduct provided
the jury with inappropriate evidence of intent. At the
conclusion of petitioner’s trial, the court instructed the jury as
to the elements of second-degree murder and the three types
of manslaughter. To convict the petitioner of either second-
degree murder or involuntary manslaughter, the prosecution
had to produce evidence of intent. The petitioner contends
that the prosecution offered no other evidence of intent at
trial; thus, for the jury to have convicted the petitioner of
second-degree murder, the jury must have believed the
inappropriate statements made by the prosecutor.
During the prosecution’s cross-examination of the
petitioner, the prosecutor insinuated by her question that the
petitioner had threatened the decedent on a prior occasion.
Despite the fact that the prosecution had rested its case, she
stated in response to the defense counsel’s objection that she
could offer proof to support the question. Although the court
immediately instructed the jury that nothing the attorneys say
is evidence and that only the answers to the attorneys’
question are to be considered as evidence, the trial court did
not strike the question from the record, nor did he specifically
instruct the jury to disregard the prosecutor’s statements.
On direct appeal the Michigan Court of Appeals determined
that the prosecution’s question and remarks were
prosecutorial misconduct. Yet, the court stated that it did not
“believe that [the] error was so prejudicial that reversal [wa]s
required for the reason that the court cured the taint with an
immediate cautionary instruction.” The court also reasoned
that any prejudice was alleviated by the defendant’s response
to the question. Because prosecutorial misconduct falls into
the category of trial, rather than structural, errors this court
should review the state court’s decision for harmless error.
See Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997).
The Sixth Circuit has identified several factors that should
be considered when weighing prosecutorial misconduct.

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