Trenton Millender v. Stanley Adams

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0227P (6th Cir.)
File Name: 04a0227p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TRENTON MILLENDER,
Petitioner-Appellant,
v.
STANLEY ADAMS,
Respondent-Appellee.
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No. 02-1403
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-70945—Gerald E. Rosen, District Judge.
Argued: April 29, 2004
Decided and Filed: July 15, 2004
Before: KENNEDY, MARTIN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: John F. Royal, Detroit, Michigan, for Appellant.
Laura Graves Moody, OFFICE OF THE ATTORNEY
GENERAL, HABEAS CORPUS DIVISION, Lansing,
Michigan, for Appellee. ON BRIEF: John F. Royal, Detroit,
Michigan, for Appellant. Laura Graves Moody, OFFICE OF
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THE ATTORNEY GENERAL, HABEAS CORPUS
DIVISION, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Mr. Trenton
Millender appeals the judgment of the district court denying
his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
This Court granted a certificate of appealability on four
issues: (1) whether Mr. Millender's trial counsel was
constitutionally ineffective; (2) whether the Michigan trial
court's failure to instruct jurors on mistaken identity and
impeachment by a prior inconsistent statement denied
petitioner a fair trial; (3) whether comments the prosecutor
made in closing argument denied petitioner a fair trial; and (4)
whether the cumulative effect of these alleged errors denied
petitioner a fair trial. For the reasons that follow, we affirm
the judgment of the district court.
I.
Late in the evening in July 1994, petitioner and two other
individuals broke into a home to commit a robbery. Once
inside the home, the three assailants brutally assaulted its
occupants. Based on these actions, a Michigan state-court
jury convicted Mr. Millender of three counts of first-degree
criminal sexual conduct, three counts of armed robbery, one
count of assault with intent to do great bodily harm, three
counts of felonious assault, and one count of felonious
possession of a firearm during the commission of a felony.
The trial court sentenced petitioner to a lengthy prison term
following this conviction.
The Michigan Court of Appeals subsequently denied two
motions to remand and a motion for rehearing filed by
petitioner. Thereafter, in October 1996, the Michigan Court

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No. 02-1403 Millender v. Adams 3
of Appeals affirmed his conviction. In December 1997, the
Michigan Supreme Court denied petitioner’s motion for leave
to appeal and, in February 1998, the Michigan Supreme Court
denied his motion for reconsideration. Petitioner then moved
for an evidentiary hearing in the United States District Court.
The district court denied this motion without prejudice in
March 2000. In February 2002, the district court also denied
petitioner's petition for a writ of habeas corpus and sua
sponte denied him a certificate of appealability. In October
2002, this Court granted Mr. Millender's request for a
certificate of appealability, and we certified four issues for
review.
II.
We review a grant or denial of a petition for writ of habeas
corpus de novo and the factual findings of the district court
for clear error. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir.
2001). Under 28 U.S.C. § 2254, a writ of habeas corpus may
not be granted unless the state-court proceedings:
(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 proceedings.
28 U.S.C. § 2254(d). Section 2254(d)(1) defines two
categories of cases in which a state prisoner may gain habeas
relief. See Williams v. Taylor, 529 U.S. 362 (2000)
(O'Connor, J., concurring).
To gain habeas relief under the first category, involving
state decisions contrary to federal law, a defendant must
show that the state court arrived at a conclusion opposite
to that reached by the Supreme Court on a question of
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law' or that the state court decided a case differently than
the Supreme Court has on a set of materially
indistinguishable facts. Under the second category,
involving the unreasonable application of federal law by
a state court, a federal habeas court must ask whether the
state court’s application of clearly established federal law
was objectively reasonable. If the federal court finds
that, viewed objectively, the state court has correctly
identified the governing legal principle from the Supreme
Court's decisions but unreasonably applied that principle
to the facts of the prisoner’s case, it may grant the writ.
Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir. 2000)
(citation and internal quotations omitted). With respect to all
four issues raised by petitioner, we find no error in the
judgment of the district court and affirm.
III.
The first issue Mr. Millender raises to support his claim for
habeas relief is ineffective assistance of counsel. Petitioner
alleges that his attorney violated his right to effective
representation, which is guaranteed under the Sixth
Amendment in criminal cases. “The benchmark for judging
any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S.
668, 686 (1984). Millender advances several grounds for
relief to support this claim, including his attorney’s failure to
object to the introduction of evidence, failure to object to
various in-court identifications and prosecutorial remarks,
failure to call a rebuttal witness, and failure to make an
opening statement or request certain instructions. We review
de novo the district court’s judgment on an ineffective-
assistance-of-counsel claim. Hudson v. Jones, 351 F.3d 212,
215 (6th Cir. 2003).

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No. 02-1403 Millender v. Adams 5
In its review of the ineffective-assistance-of-counsel claim,
the district court applied the standard set out in Strickland and
ruled that Mr. Millender’s counsel was not constitutionally
ineffective. The Strickland standard involves a two-step
inquiry that requires a petitioner to show (1) that his trial
representation was deficient, or objectively unreasonable, and
(2) that prejudice resulted from this representation.
Strickland, 466 U.S. at 687. “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.” Id. at 694. Mr. Millender argues that the
district court erred not only in ruling that his counsel was not
ineffective, but also in analyzing his claim under the
Strickland standard rather than the less stringent standard set
out in United States v. Cronic, 466 U.S. 648 (1984). Under
Cronic, prejudice is presumed, and therefore need not be
proved, if petitioner’s counsel “entirely fails to subject the
prosecution's case to meaningful adversarial testing[.]”
Cronic, 466 U.S. at 659.
Throughout the trial, petitioner’s attorney was an active
participant: he cross-examined witnesses, made proper
objections, and presented a closing argument. This level of
representation does not fall below the low threshold required
by Cronic. Therefore, the district court did not err in its
application of the Strickland standard, and we rely on the
same standard in our review of this claim.
A.
Petitioner alleges that his attorney’s failure to file a motion
to suppress evidence from witness and voice-identification
police lineups and in-court identifications constitutes
ineffective assistance of counsel. Under United States v.
Wade, 388 U.S. 218 (1967), a defendant may have the right
to a pretrial hearing to contest the validity of an out-of-court
identification. Petitioner argues that his attorney should have
requested a Wade hearing to suppress the lineup
identifications because he claims these identifications were
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impermissibly suggestive. He alleges the lineup was
suggestive because he was the tallest suspect; he alleges the
voice identification was suggestive because, according to him,
his voice did not sound “in any way” like the other suspect’s
voices and it was conducted at the same time as the
identification lineup. Petitioner also argues that his attorney
should have objected to in-court identifications of him
because eyewitness testimony is “extremely unreliable” yet
has a profound impact on juries. Thus, according to
petitioner, his attorney’s failure to file a motion to suppress
this identification evidence constitutes ineffective assistance
of counsel because his primary defense was mistaken identity.
We hold that petitioner's attorney’s failure to file a motion
to suppress does not constitute ineffective assistance of
counsel. In some circumstances, discrepancies in height may
be impermissibly suggestive. See Foster v. California, 394
U.S. 440, 442-43 (1969). Although petitioner was taller than
the other suspects used in the lineup, he was only one inch
taller than two other suspects, all of whom were roughly the
same height, and all of the suspects were dressed similarly
and were approximately the same age. In addition, as the
Michigan Court of Appeals pointed out, the fact that only
three of the six victims identified petitioner in the lineup
belies his argument that it was impermissibly suggestive. As
to the voice-identification evidence, a defense attorney
present at the lineup made no objection to or comments about
any discrepancy in the voices. Consequently, because there
was nothing to suggest that the lineup procedure was in any
way improper, petitioner’s counsel was not ineffective for
failing to seek a Wade hearing or failing to suppress evidence
concerning the three victims’ identification of petitioner
during that lineup. See United States v. Carter, 355 F.3d 920,
924 (6th Cir. 2004) (holding that counsel was not ineffective
for failing to file motion where there was no reasonable
probability that motion would be granted).
Further, because the lineup was not impermissibly
suggestive, petitioner’s counsel did not err in failing to object

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No. 02-1403 Millender v. Adams 7
to the in-court identification of petitioner by victims who had
failed to identify petitioner during the lineup. As recognized
by the district court, the victims’ failure to identify the
petitioner during the lineup went to the credibility of the in-
court identifications, not their admissibility. United States v.
Causey, 834 F.2d 1277, 1286 (6th Cir. 1987); People v.
Barclay, 528 N.W.2d 842 (Mich. App. 1995). Consequently,
petitioner’s counsel was not ineffective for failing to object to
the admission of the in-court identifications.
B.
Petitioner also alleges that his attorney's failure to object to
the introduction into evidence of a picture of a pair of pliers
found at the crime scene, a similar pair of pliers, a handgun,
a shotgun, and photographs of the guns constitutes ineffective
assistance of counsel. He argues that the introduction of these
items, none of which were proven to be weapons used in the
crime, was inflammatory and prejudiced the jury against him.
Though the sight of these items, given the violent nature of
the crime, may have been unpleasant for the jury, the
attorney's failure to object to their admittance does not
constitute ineffective assistance of counsel. Applying
Strickland, we hold that it was not objectively unreasonable
for Mr. Millender’s attorney not to object to the admittance of
this evidence. See Strickland, 466 U.S. at 687-91. None of
the items had petitioner’s fingerprints on them and none were
found in his possession. Thus, this evidence reasonably could
have weighed in petitoner’s favor in the jury’s determination
of guilt. Therefore, the judgment of the district court on the
physical-evidence-admission issue is affirmed.
C.
As another basis for his ineffective-assistance-of-counsel
claim, petitioner argues that his attorney should have made an
opening statement. An attorney’s decision not to make an
opening statement “is ordinarily a mere matter of trial tactics
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and . . . will not constitute . . . a claim of ineffective assistance
of counsel.” Millender v. Adams, 187 F. Supp. 2d 852, 870
(E.D. Mich. 2002), quoting United States v. Rodriquez-
Ramirez, 777 F.2d 454, 457 (9th Cir. 1985). We find no error
in the district court’s determination that the attorney’s
decision was not objectively unreasonable, and therefore did
not amount to ineffective assistance of counsel. See
Strickland, 466 U.S. at 687-91. We affirm the judgment of
the district court on this issue.
D.
Petitioner complains that his attorney was ineffective for
failing to request jury instructions on mistaken identity, which
was petitioner’s only defense, and on the impeachment of
witnesses by prior inconsistent statements. Even assuming
that petitioner’s counsel erred in failing to request these
instructions, however, petitioner has not demonstrated
prejudice because—for the reasons set forth in the district
court’s opinion—the instruction given by the court and
counsel’s closing arguments put the issues squarely before the
jury. Millender, 187 F. Supp. 2d at 873-74; Weighall v.
Middle, 215 F.3d 1058, 1063 (9th Cir. 2000).
E.
Petitioner next argues that his attorney’s failure to object to
alleged prosecutorial misconduct during the prosecutor’s
closing argument constitutes ineffective assistance of counsel.
“On habeas review, a court's role is to determine whether
[alleged prosecutorial misconduct] was so egregious as to
render the entire trial fundamentally unfair.” Millender, 187
F. Supp. 2d at 875, citing Serra v. Michigan Dep’t of Corr.,
4 F.3d 1348, 1355-56 (6th Cir. 1993). In conducting such a
determination, a reviewing court first decides whether the
alleged misconduct was improper and, if it was, then decides
whether the misconduct was “so flagrant as to constitute a
denial of due process and warranting granting a writ.” Id. at

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No. 02-1403 Millender v. Adams 9
875, citing Boyle v. Million, 201 F.3d 711, 717 (6th Cir.
2000).
We agree with the district court’s conclusion that the
prosecutor’s remarks were not improper. As noted by the
district court:
This was not improper argument because recounting
these factual allegations did not only appeal to the jury’s
sympathies. Summarizing the nature of the crimes
committed and the circumstances of their commission
also served to educate the jury as to why some of the
victims were able to identify Petitioner as one of the
perpetrators and some were not. Further, by
summarizing the totality of the crimes committed by
Petitioner and in his presence, the prosecutor sought to
show that Petitioner was guilty of these crimes as either
a principal or an aider and abettor. To the extent that the
prosecutor’s depiction of the crimes served to educate the
jury about the difficulties faced by the victims as
witnesses and about the culpability of Petitioner as either
a principal or an aider and abettor his argument was not
improper.
Id. at 875.
F.
As another basis to support his ineffective-assistance-of-
counsel claim, petitioner alleges that his attorney’s failure to
call a rebuttal witness amounts to constitutionally defective
representation. Petitioner argues that his attorney should have
called a witness to establish that he was out of state the day
before the crime occurred to rebut a witness’s testimony that
the latter witness had seen him on that day at a local hospital.
The failure to call a witness to rebut this testimony, according
to petitioner, cannot be attributed to trial strategy.
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We find no merit to this argument. The witness testified
that he saw petitioner “the Sunday before” the crime, which
occurred on a Monday. This is a vague statement and does
not specify whether he meant the Sunday immediately
preceding the crime or the Sunday from the week before.
Furthermore, the movements of petitioner the day before the
crime are not exculpatory points. “A defense counsel has no
obligation to call or even interview a witness whose
testimony would not have exculpated the defendant.”
Millender, 187 F. Supp. 2d at 877, citing Marra v. Larkins,
111 F. Supp. 2d 575, 585 n.13 (E.D. Pa. 2000). Therefore, on
these facts, the failure to call a rebuttal witness does not
amount to constitutionally defective assistance of counsel
sufficient to even reach the Strickland prejudice inquiry. For
this reason, we affirm the district court on this issue.
G.
The final argument petitioner makes under his ineffective-
assistance-of-counsel claim is that the cumulative effect of
these alleged attorney errors effectively denied him a defense.
Petitioner relies on the “no meaningful adversarial testing”
standard set forth in Cronic, 466 U.S. at 659, and repeats that
his attorney failed to subject his case to any meaningful
challenge. Petitioner also cites the dissent in Moss v.
Hofbauer, 286 F.3d 851 (6th Cir. 2002), to support this claim.
As stated previously in this opinion, the Cronic standard is
inapplicable to petitioner’s representation because petitioner's
attorney engaged in an active defense at trial. Even under the
Strickland standard, petitioner's argument is unpersuasive, as
we do not find more than one error to consider cumulatively
under this argument. For these reasons, we find no basis
upon which to grant petitioner relief on this claim and hold
that the district court properly denied petitioner an evidentiary
hearing.

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No. 02-1403 Millender v. Adams 11
IV.
As a second ground upon which to grant habeas relief,
Mr. Millender argues that the trial court erred in not sua
sponte instructing the jury on mistaken identity and
impeachment by prior inconsistent statement. Petitioner
alleges that the court's failure to instruct on these two points
deprived him of his constitutional right to a fair trial.
Unlike a state appellate court, federal courts reviewing
habeas petitions do not grant relief on a jury-instruction claim
simply because the instruction may have been deficient in
comparison to state-law models. Estelle v. McGuire, 502
U.S. 62, 72 (1991). Instead, our review is limited to
determining whether an alleged erroneous jury instruction “so
infected the entire trial that the resulting conviction violates
due process.” Ibid., quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973). Although our focus is generally limited to
allegedly erroneous instructions, we find no reason to
distinguish this argument from the alleged failure to include
an instruction sua sponte in this case.
For the reasons stated previously in regard to petitioner’s
claim that his attorney's failure to request these instructions
constituted constitutionally deficient representation, we are
similarly unpersuaded now. The trial court's failure to include
these instructions did not infect the trial such that petitioner’s
conviction violates due process. In addition, petitioner
procedurally defaulted on this issue and failed to establish
cause and prejudice. Similarly, we are unpersuaded that
failure to consider this claim would amount to a “fundamental
miscarriage of justice,” Coleman, 501 U.S. at 750, as the
omitted instructions would not have added any elements to
his defense, Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir.
1999), nor shifted a burden of proof, Sandstrom v. Montana,
442 U.S. 510, 524 (1979). Therefore, we find no basis upon
which to grant relief and affirm the district court on this issue.
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V.
As a third ground for habeas relief, Mr. Millender argues
that his right to due process was violated by the prosecutor’s
deliberate and repeated misconduct. Specifically, petitioner
alleges that the prosecutor’s closing argument, which
consisted of a synopsis of the violent crime and an alleged
appeal to the jurors’ sympathies, was improper. Petitioner
also argues that the prosecutor violated the rules of evidence
when he “falsely” stated that certain witnesses had seen the
petitioner prior to the day of the crime and when he referred
to guns that had been admitted into evidence but had not been
specifically identified by the victims as the guns used during
the crime. To determine whether relief on this ground is
warranted, we first consider whether the statements were
improper and, if they were, whether this impropriety amounts
to reversible error. U.S. v. Carroll, 26 F.3d 1380, 1385 (6th
Cir. 1994).
Petitioner cites Washington v. Hofbauer to support his
claim that the prosecutor’s misconduct was improper. In
Hofbauer, the prosecutor went far beyond the bounds of
permitted conduct by introducing evidence of the defendant's
unseemly character, including statements about his alleged
abusive behavior, excessive alcohol consumption, and drug
abuse. Hofbauer, 228 F.3d at 699-700. The petitioner’s
attorney in that case also failed to object to the misconduct.
This Court held that the prosecutor’s statements were
improper, and we reversed the district court for the failure of
both the prosecutor and defense attorney to perform their
respective duties. Id. at 709.
Claims of prosecutorial misconduct are reviewed
deferentially on habeas review. Bowling .v Parker, 344 F.3d
487, 512 (6th Cir. 2003). As this court recently recognized:
To be cognizable, the misconduct must have so infected
the trial with unfairness as to make the resulting
conviction a denial of due process. Even if the

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No. 02-1403 Millender v. Adams 13
prosecutor’s conduct was improper or even universally
condemned, we can provide relief only if the statements
were so flagrant as to render the entire trial
fundamentally unfair.
Id. (internal quotations omitted). For the reasons noted above
in Part III.E., the prosecutor’s detailed recitation of the events
on the night of the robbery were not improper. We further
conclude that, even assuming that the other remarks cited by
the petitioner were improper, the statements were not so
flagrant as to warrant reversal.
Flagrancy is determined by an examination of 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
the evidence against the accused.”
Boyle, 201 F.3d at 717, quoting Carroll, 26 F.3d at 549, 550.
First, although the prosecutor’s remark that “the victims in the
house” remembered seeing the petitioner the Sunday before
the crime implies that more than one victim saw the
petitioner, the isolated slip of the tongue was unlikely to
mislead the jury. Second, although the guns in question had
not been identified by the victims as the weapons used during
the crime, the guns had been seized from petitioner’s co-
defendants and had been admitted into evidence. In any
event, it is undisputed that the guns used during the robbery
were at least similar to the guns at trial and there is no reason
to believe that the prosecutor’s remarks confused the jury. In
light of the total evidence against the petitioner, we conclude
that the isolated remarks concerning witnesses did not amount
to a denial of due process.
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VI.
As a final argument to support habeas relief, Mr. Millender
argues that the cumulative effect of the alleged errors he
presents supports granting relief. In addition to finding no
errors to consider cumulatively even if such a task were
within this Court’s province, we reiterate that “[t]he Supreme
Court has not held that distinct constitutional claims can be
cumulated to grant habeas relief.” Lorraine, 291 F.3d at 447.
For this reason, we affirm the judgment of the district court
on this issue.
In conclusion, based on the foregoing, we hereby affirm the
judgment of the district court denying habeas relief.

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