Aaron Leigh Cyars v. Gerald Hofbauer

*The Honorable B obb y R. B aldock, Circuit Judge of the United States
Court of Appe als for the Tenth Circ uit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0295P (6th Cir.)
File Name: 04a0295p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AARON LEIGH CYARS,
Petitioner-Appellant,
v.
GERALD HOFBAUER,
Respondent-Appellee.
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No. 02-2341
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-73103—Gerald E. Rosen, District Judge.
Argued: June 11, 2004
Decided and Filed: September 7, 2004
Before: SILER, MOORE, and BALDOCK, Circuit
Judges.*
_________________
COUNSEL
ARGUED: N.C. Deday LaRene, LaRENE & KRIGER,
Detroit, Michigan, for Appellant. Joseph A. Puleo, OFFICE
2 Cyars v. Hofbauer No. 02-2341
1The record does not disclose whether Petitioner exhausted his state
court post-conviction rem edies. See Mich. Ct. R. 6.500 to 6.509 . The
district court simply noted Petitioner filed his habeas application after
exhausting his direct appeals. Petitioner’s motion for a certificate of
app ealab ility similarly states his habeas application was filed after
“exhausting his direct appeal rights.” We need not delve into the mo rass
of procedural ba r, however, b ecause Pe titioner’s claim fails on the merits
even assuming he prope rly exhausted availab le state court remedies. See
28 U.S.C. § 22 54(b)(2).
OF THE PROSECUTING ATTORNEY, Detroit, Michigan,
for Appellee. ON BRIEF: N.C. Deday LaRene, LaRENE &
KRIGER, Detroit, Michigan, for Appellant. Joseph A. Puleo,
OFFICE OF THE PROSECUTING ATTORNEY, Detroit,
Michigan, for Appellee.
BALDOCK, J., delivered the opinion of the court, in which
SILER, J., joined. MOORE, J. (pp. 16-19), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
BALDOCK, Circuit Judge. A Michigan jury convicted
Aaron Leigh Cyars (Petitioner) on two counts of first-degree
premeditated murder, Mich. Comp. Laws Ann.
§ 750.316(1)(a), one count of assault with intent to commit
murder, id. § 750.83, and one count of possessing a firearm
during the commission of a felony, id. § 750.227b(1). The
Michigan court of appeals affirmed. People v. Cyars, No.
176536, 1997 WL 33353409 (Mich. App. Feb. 28, 1997)
(unpublished). The Michigan Supreme Court and United
States Supreme Court denied review.
Petitioner subsequently filed an application for habeas
corpus in the district court pursuant to 28 U.S.C. § 2254.1
Petitioner asserted, among other things, he was denied
effective assistance of counsel because his trial counsel failed

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No. 02-2341 Cyars v. Hofbauer 3
to proffer a limiting instruction on the jury’s use of
impeachment statements. The district court denied the
petition. We granted a certificate of appealability, see
28 U.S.C. § 2253(c), on the limited issue of whether
Petitioner was denied his Sixth Amendment right to effective
assistance of counsel. Applying the Antiterrorism and
Effective Death Penalty Act’s highly deferential standard for
reviewing state-court decisions, see Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (per curiam), we affirm because the
Michigan court of appeals reasonably applied the correct
principle governing ineffective assistance of counsel claims
to the facts of Petitioner’s case.
I.
Petitioner used and dealt crack cocaine during the summer
of 1993. He sold crack primarily for two individuals, known
on the streets as “Rob and Lucky” or “Batman and Robin.”
Petitioner “rolled” (i.e., distributed drugs) out of a house on
Asbury Park street (Asbury House) in west Detroit. Veronica
Taylor resided in the Asbury House; however, Rob and Lucky
“rented” the house from Taylor to use as a “crack house.”
Petitioner earned roughly $100 a day, less the cost of any
drugs used on the job, for his services.
Petitioner lost $700 and a handgun Rob and Lucky fronted
him in July 1993. Rob and Lucky were not pleased. Lucky
informed Petitioner he would have to work at the Asbury
House for seven days to pay for the lost money and three days
to pay for the handgun. Petitioner went to the Asbury House
around midnight on August 29, 1993 to commence work.
Petitioner met Thomas Lewis on the porch. Lewis, a known
“henchman” for Rob and Lucky, supervised the activities at
the Asbury House. Once inside, Lewis moved a refrigerator
to block the house’s front door. The refrigerator served as a
barricade to slow law enforcement officers in the event of a
raid. All of the house’s windows had bars save the window
in Taylor’s room. The house’s backdoor was also
inaccessible.
4 Cyars v. Hofbauer No. 02-2341
2Petitioner testified he was “scared” from the moment Taylor was to
page Rob and Lucky. The record does not disclose, however, why
Petitioner simply did not leave the house when Lewis was with Christon.
In fact, Christo n testified Lewis was not doing anything to keep Petitioner
in the house.
Shortly after entering the house, Lewis put Petitioner to
work selling drugs. Lewis told Taylor to “page” Rob and
Lucky. Petitioner was scared of what might happen when
they arrived. Rob and Lucky never showed, but Leatha
Christon arrived at the Asbury House sometime after 2:00
a.m. Christon had arranged to engage in sexual intercourse
with Lewis in exchange for crack. Petitioner let Christon into
the house and then, by himself, moved the refrigerator back
across the front door. Lewis gave Petitioner a bag of crack
to sell while he was in the bedroom with Christon.2 After
Lewis and Christon consummated their transaction, Petitioner
again moved the refrigerator, by himself, to let Christon out
of the house. The record is silent as to whether Petitioner
moved the refrigerator back across the front door after he let
Christon out of the Asbury House.
Nimrod Lumpkin arrived at the Asbury House around 3:00
a.m. The refrigerator was not blocking the front door when
he arrived. He went straight to Taylor’s bedroom where they
smoked marijuana and crack. Lumpkin was not aware
anyone else was in the house. Meanwhile, Petitioner was in
the house’s other bedroom selling crack out of a barred
window to customers. Lewis was lying on his stomach on a
bed in the same room facing Petitioner. A handgun was on
the bed next to Lewis.
Petitioner sold the crack for approximately $20 per “rock.”
After Petitioner sold a $100 or so worth of crack, he would
give the money to Lewis who in turn would supply him with
more crack. Lewis, however, fell asleep after about an hour
of work. Petitioner then got up, grabbed Lewis’s gun, and
shot Lewis once in the back of the head. Shortly thereafter,
Taylor yelled “what’s that?” Petitioner cracked the door to

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No. 02-2341 Cyars v. Hofbauer 5
3Petitioner testified on his own behalf at trial. Petitioner’s version of
the events d iffered substantially from o ther evidence introduced at trial.
Petitioner testified he shot Le wis because Lewis was going for another
gun in his pants’ pocket. Other evidence at trial indicated, however, that
Lewis’s hand was near his face when he was shot. Additionally, no other
weapons were found on Lewis or in the house. Petitioner also testified he
could not leave out of the ho use’s front door because the refrigerator was
blocking the door. Petitioner explained that he attempted to move the
refrigerator, but it got caught on the carpet. Petitioner thus b elieved his
only other option was to le ave through the window in Taylor’s room.
W hen Petitioner entered Taylor’s room , however, she had a knife and
went for a gun. Lump kin, according to Petitioner’s testimony, also had
a gun. As noted, the police did not recover any such weapons. Petitioner
nevertheless testified he shot T aylor and Lumpkin in self-defense.
Petitioner admitted he thereafter left the Asbury House through its front
doo r.
Taylor’s room and said Lewis was playing with a gun.
Petitioner then immediately entered the room with the
handgun pointed at Taylor who was moving toward her
window and saying, repeatedly, “Aaron don’t do it.”
Petitioner shot Taylor in the back of the head. Lumpkin,
however, was able to kick the gun as Petitioner turned and
fired in his direction. The kick redirected the shot into
Lumpkin’s arm and leg. Petitioner fired again, but was out of
bullets. Petitioner left the room and exited the house through
its front door. Lumpkin never heard any appliances being
moved after Petitioner left Taylor’s room.3
Petitioner never called the police or any paramedics after
leaving the Asbury House. Instead, Petitioner visited two
groups of friends and explained to them how he killed two
individuals. He showed one friend, James Morrison, the gun
and crack he took from the house. Later, Petitioner discarded
the gun in a field and the crack in the sewer. The Detroit
Police Department arrested Petitioner. He confessed to
shooting Lewis, Taylor, and Lumpkin after waiving his
Miranda rights.
6 Cyars v. Hofbauer No. 02-2341
Petitioner claimed self-defense at trial. The State called,
among others, James Morrison, Don Bailey, and Todd Cyars
to testify in its case-in-chief. James Morrison was
Petitioner’s friend. During the homicide investigation, and at
the preliminary hearing, Morrison made the following
statement:
[Petitioner] said, “Man, I shot Veronica [Taylor], Stormy
[Thomas Lewis] and another basehead. Man, I popped
Stormy in the head one time. I shot Veronica somewhere
in the chest. I shot the other guy all over the place.
At trial, Morrison first testified he was honest with the police
during the homicide investigation and when he testified at the
preliminary hearing. As the State’s examination of Morrison
proceeded, however, his memory faded and he ultimately
testified “[n]one of those [statements] c[a]me out of my
mouth.” (Joint App. at 260). The State impeached Morrison
with the signed statement he gave police and the preliminary
hearing transcript.
The State also called Don Bailey, an acquaintance of
Petitioner. The Detroit police interviewed Bailey during the
homicide investigation. Bailey gave the police a signed
statement in which Bailey said Petitioner told him that
“[a]fter he shot Thomas [Lewis], he shot the other two people
because they were witnesses.” (Joint App. at 118). At trial,
the State asked Bailey if he made this statement. Bailey
denied making the statement, and then later admitted making
the statement, but attributed it to a person other than
Petitioner.
The State also called Petitioner’s brother, Todd Cyars.
During the homicide investigation, Todd Cyars gave a signed
statement to the police. Todd Cyars informed the police
Petitioner stated prior to the murders “he was thinking about
sticking up [the Asbury] house and taking the dope” and, after
the murders, stated: “I did it. I did what I said I was going to
do[.]” (Joint App. 149, 162-63). At trial, Todd Cyars

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No. 02-2341 Cyars v. Hofbauer 7
admitted making the statements to the police, but denied their
truth and claimed they were the product of a coercive
custodial interrogation.
After Morrison’s testimony on direct examination,
Petitioner’s counsel asked for a limiting instruction regarding
the State’s impeachment of Morrison. Specifically, counsel
asked for an instruction providing that impeachment
testimony did not constitute substantive proof of the matters
asserted, but instead went to the believability of the witness.
The trial judge responded that he had never given such an
instruction and was not going to “give it from the hips.”
(Joint App. 272). The judge instructed Petitioner’s counsel to
prepare an instruction and, afterwards, he would be glad to
look at the proposed instruction and give it at an appropriate
time. Petitioner’s counsel never renewed his request for a
limiting instruction, nor provided the judge a proposed
instruction. The court consequently never instructed the jury
on the proper use of impeachment statements. After the
court’s final jury charge, Petitioner’s counsel stated “[t]he
Defendant . . . thinks the jury has been appropriately
instructed.” (Joint App. at 337).
II.
“The writ of habeas corpus plays a vital role in protecting
constitutional rights.” Slack v. McDaniel, 529 U.S. 473, 483
(2000). The Antiterrorism and Effective Death Penalty Act’s
(AEDPA) highly deferential standard for evaluating state-
court rulings, however, severely circumscribes a federal
court’s ability to grant the writ. Lindh v. Murphy, 521 U.S.
320, 333 n.7 (1997). Congress enacted AEDPA “[i]n the
interest of finality[,]” Miller-El v. Cockrell, 537 U.S. 322, 326
(2003), “to reduce delays in the execution of state and federal
criminal sentences,” Woodford v. Garceau, 538 U.S. 202,
206 (2003), “to prevent federal habeas ‘retrials[,]’ and to
ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535 U.S. 685, 693
(2002). AEDPA is thus premised on Judge Learned Hand’s
8 Cyars v. Hofbauer No. 02-2341
4AEDPA governs the habeas application Petitioner filed in 199 9. See
Garceau, 538 U.S. at 207 (ho lding “an app lication filed after AE DP A’s
effective date should be reviewed under AEDPA[.]”). AEDPA’s
“contrary to” clause is inap posite because, as Petitioner admits, the
Michigan court applied the correct governing law in rejec ting his
ineffective assistance of co unsel claim. Cyars, 19 97 W L 33353409, at *4
(citing People v. Pickens, 521 N.W . 2d 797, 815 (Mich. 1994 ) (adopting
the Supreme Co urt’s two-pronged test enunciated in Strickland v.
Washington, 466 U.S. 668 (1984) for analyzing ineffective assistance of
counsel claims)). Furthermore, the Strickland analysis for evaluating
ineffective assistance claims is “clearly established.” Wickline v. M itchell,
319 F.3d 813, 819 (6th Cir. 2003).
observation that, if courts are to survive as an institution, they
cannot “become Penelopes, forever engaged in unravelling
the webs they wove.” Jorgensen v. York Ice Mach. Corp.,
160 F.2d 432, 435 (2d Cir. 1947). To these ends, § 2254
provides in relevant part:
(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[.]
28 U.S.C. § 2254(d)(1).
Petitioner concedes, as he must, § 2254(d)(1)’s
“unreasonable application” clause governs the disposition of
his case.4 (Aplt’s Br. at 11). A federal habeas court “may
grant relief under the ‘unreasonable application’ clause if the
state court correctly identifies the governing legal principle
from [the Supreme Court’s] decisions but unreasonably
applies it to the facts of the particular case.” Cone, 535 U.S.
at 694. The Court has repeatedly stressed that “[i]n order for
a federal court to find a state court’s application of [its]

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No. 02-2341 Cyars v. Hofbauer 9
precedent ‘unreasonable,’ the state court’s decision must have
been more than incorrect or erroneous.” Wiggins v. Smith,
539 U.S. 510, –, 123 S. Ct. 2527, 2535 (2003). Instead, the
state court’s application of clearly established law must be
“objectively unreasonable.” Id.
A federal habeas court, therefore, may not grant the writ
simply because, in its independent review of the legal
question, it is left with a firm conviction that the state court
was erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Quite the opposite, as the Court recently clarified, “the range
of reasonable judgment can depend in part on the nature of
the relevant rule.” Yarborough v. Alvarado, – U.S. –, 124 S.
Ct. 2140, 2149 (2004). Specifically, “[a]pplying a general
standard to a specific case can demand a substantial element
of judgment. As a result, evaluating whether a rule
application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway
courts have in reaching outcomes in case by case
determinations.” Id. The federal habeas scheme thus vests
state courts with the primary responsibility of determining
whether a particular defendant’s constitutional rights were
violated; and, a federal court may only intervene in that
judgment when the state-court’s decision is objectively
unreasonable. Visciotti, 537 U.S. at 27.
III.
Petitioner argues on appeal habeas relief is appropriate
because the Michigan court unreasonably applied Supreme
Court precedent to his ineffective assistance claim. Petitioner
specifically argues the Michigan court erred in holding he did
not suffer any prejudice as a result of his counsel’s failure to
proffer a limiting instruction on the statements used to
impeach the State’s witnesses at trial. See Cyars, 1997 WL
33353409, at *4.
10 Cyars v. Hofbauer No. 02-2341
A.
The Sixth Amendment provides a criminal defendant with
the right to effective assistance of counsel because of the
effect the right has on a defendant’s ability to receive a fair
trial. Mickens v. Taylor, 535 U.S. 162, 166 (2002). “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). Consequently,
“defects in assistance that have no probable effect upon the
trial’s outcome do not establish a constitutional violation.”
Mickens, 535 U.S. at 166. Whether a constitutional violation
occurred as a result of counsel’s assistance is determined
under the familiar two-pronged Strickland test: “First, the
defendant must show that counsel’s performance was
deficient. . . . Second, the defendant must show that the
deficient performance prejudiced the defense.” Strickland,
466 U.S. at 687. We assume without deciding Petitioner
satisfied the first prong. See id. at 697 (explaining “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be
followed.”).
The issue, then, is whether the Michigan court’s rejection
of Petitioner’s ineffective assistance claim was an
unreasonable application of Strickland’s prejudice prong. To
demonstrate prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. AEDPA circumscribes our
review of the Michigan court’s conclusion that Petitioner did
not suffer any prejudice. Cf. Wiggins, 123 S. Ct. 2542. In
fact, § 2254(d) “demands that [the] state-court decision[] be
given the benefit of the doubt.” Visciotti, 537 U.S. at 24.

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No. 02-2341 Cyars v. Hofbauer 11
B.
The Michigan court reasonably applied Strickland’s
prejudice prong to the facts of Petitioner’s case. The court
explained that “[b]ecause the weight and strength of the
untainted evidence presented in this case overwhelmingly
supports defendant’s convictions, and because the error is
relatively innocuous (indeed, it was not error for the prior
inconsistent statements to be put before the jury, only that the
jury could not consider those statements as substantive
evidence), we conclude that defendant was not prejudiced in
this regard.” Cyars, 1997 WL 33353409, at *3 (emphasis
added). We agree. The State had the burden of proving
Petitioner’s intentional killing of the victims was deliberate
and premeditated. People v. Coddington, 470 N.W. 2d 478,
487 (Mich. App. 1991). “Premeditation and deliberation may
be inferred from the facts and circumstances established on
the record.” Id. Circumstantial evidence demonstrating
premeditation includes, but is not limited to (1) the prior
relationship of the parties, (2) defendant’s actions before the
killing, (3) the circumstances, including the wound’s location,
of the killing, and (4) defendant’s conduct after the killing.
Id.; see also People v. Anderson, 531 N.W. 2d 780, 786
(Mich. App. 1995). “Premeditation and deliberation require
sufficient time to allow the defendant to take a second look.”
Id.
The record overwhelmingly supports the jury’s first degree
murder verdicts, as the Michigan court held, even without
considering the statements used to impeach Morrison, Bailey,
and Todd Cyars. A reasonable jury could infer Petitioner
knew, from past experience, nefarious activities would be
afoot during his visit to the crack house on August 29, 1993.
The jury could also infer Petitioner formulated a plan to kill
Lewis as he distributed drugs from the house’s backroom
window. Indeed, Petitioner’s claim that he was scared of Rob
and Lucky’s arrival at the Asbury House was undermined by
the fact he could have left the house while Lewis was with
Christon, but instead opted to stay and sell drugs. Petitioner
12 Cyars v. Hofbauer No. 02-2341
sat patiently until Lewis fell asleep and then got up, stole his
gun, and shot him in the back of the head. A jury could
reasonably infer Petitioner had the opportunity to take a
“second look” before he executed Lewis in his sleep.
A reasonable jury, moreover, could have easily rejected
Petitioner’s theory that he was unable to leave the Asbury
House after killing Lewis because a refrigerator, which he had
twice moved himself that evening, was blocking the front
door. In fact, the evidence demonstrated the refrigerator was
not even blocking the front door after Petitioner shot Lewis.
A reasonable jury thus could infer that instead of simply
leaving the Asbury House after killing Lewis, Petitioner took
a “second look” and elected to enter Taylor’s room. Upon
entering Taylor’s room, Petitioner shot her in the back of the
head as she pleaded with him not to kill her. A reasonable
jury could thus infer Petitioner had the opportunity to take a
“third look” before shooting Taylor. Petitioner then turned on
Lumpkin who likely would have also been killed but for the
fact Petitioner ran out of ammunition. Petitioner then left the
house through its front door; the very door Petitioner claimed
prevented him from exiting the house in the first instance.
After the murders, Petitioner did not call the police to
inform them he had escaped from a near-death hostage
situation. Instead, he told various friends about the killing
and showed off the murder weapon and drugs he looted from
the house. Petitioner thereafter discarded the murder weapon
and drugs in a manner sufficient to prevent authorities from
recovering the evidence. A reasonable jury could infer guilt
from such evidence.
In sum, circumstantial evidence before, during, and after
the murder supported the jury’s verdict that Petitioner
intentionally killed Lewis and Taylor with deliberation and
premeditation. Indeed, the Michigan court of appeals, a
United States magistrate judge, and the district court have so
found. Furthermore, we denied Petitioner a certificate of
appealability on the claim he was denied due process of law

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No. 02-2341 Cyars v. Hofbauer 13
because insufficient evidence of premeditation existed to
support his first degree murder convictions. That certificate
of appealability denial means reasonable jurists could not find
the district court’s assessment of the claim debatable or
wrong. See 28 U.S.C. § 2253(c); Miller-El, 537 U.S. at 338.
Petitioner nevertheless argues the Michigan court
unreasonably applied Strickland’s prejudice prong for four
reasons. First, Petitioner argues the Michigan court of
appeals incorrectly applied Strickland. This argument is
irrelevant under AEDPA. See Wiggins, 123 S. Ct. at 2535.
Second, Petitioner argues the Michigan court misapprehended
the scope of the evidence a limiting instruction would have
affected and actually relied on the “tainted evidence” to
affirm his conviction. The overwhelming circumstantial
evidence of Petitioner’s guilt and the jury’s rejection of his
claim of self-defense, however, is the death-knell of this
argument. See also Cyars, 1997 WL 33353409, at *3.
Third, Petitioner argues the Michigan court erroneously
held he did not suffer any prejudice because the jury was
instructed only to consider the “sworn testimony of
witnesses,” which necessarily excludes statements the State
used to impeach witnesses. This argument runs afoul of the
well-established presumption jurors follow their instructions.
See Penry v. Johnson, 532 U.S. 782, 799 (2001). Fourth,
Petitioner complains no evidence existed showing he planned
to commit any crime against the victims, or that he had a
“motive” for the killings, and some evidence corroborated his
trial testimony. Petitioner’s final argument is flawed because
evidence of “planning” and “motive” are not necessary to
sustain a first-degree murder conviction under Michigan law.
See Coddington, 470 N.W. 2d at 487 (finding a “brief”
passage of time sufficient for the defendant to take a “second
look”); People v. Herndon, 633 N.W. 2d 376, 404 (Mich.
14 Cyars v. Hofbauer No. 02-2341
5W e agree with Petitioner that some evidence corroborated his trial
testimony. W e also agree with counsel’s contention at oral argument that
the impeachment statements were the only “direct evidence” of
premeditation. These arguments are also irrelevant, however, because
premeditation may be inferred from facts and circumstances established
in the record. Coddington, 470 N.W.2d at 487.
App. 2001) (explaining evidence of motive is not necessary
to sustain a first-degree murder conviction).5
In short, Petitioner failed to carry his heightened AEDPA
burden. See Mitchell v. Esparza, – U.S. –, 124 S. Ct. 7, 12
(2003) (per curiam). He had the burden of demonstrating the
Michigan court’s decision was objectively unreasonable, not
that it may have applied Strickland incorrectly. See Visciotti,
537 U.S. at 27. Petitioner cannot carry his burden because the
Michigan court’s conclusion that Petitioner did not suffer any
prejudice is reasonable in light of the overwhelming
circumstantial evidence of his guilt. No reasonable
probability exists that but for counsel’s failure to proffer a
limiting instruction on the proper use of impeachment
statements the result of the trial would have been different.
See Strickland, 466 U.S. at 696, 700 (explaining trial errors
are less likely to affect a verdict with “overwhelming record
support”). As the Court recently explained, state courts have
more leeway in reaching a particular outcome when they
apply general rules of law. Alvarado, 124 S. Ct. at 2149. The
Strickland test, by its nature, is general and not subject to
mechanical application. Strickland, 466 U.S. at 696;
Kimmelman v. Morrison, 477 U.S. 365, 395 (1986) (Powell,
J., concurring). We therefore must defer to the Michigan
court’s reasonable conclusion that Petitioner did not suffer
any prejudice as a result of his counsel’s failure to proffer a
limiting instruction on the proper use of impeachment
statements. The adversarial process clearly provided
Petitioner with a fair trial. That is all the Sixth Amendment
demands.

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No. 02-2341 Cyars v. Hofbauer 15
The Michigan court “considered the proper factors and
reached a reasonable conclusion.” Alvarado, 124 S. Ct. at
2152. “That being the case, we may not set aside its decision
on habeas review.” Esparza, 124 S. Ct. at 12.
AFFIRMED.
16 Cyars v. Hofbauer No. 02-2341
________________
DISSENT
________________
KAREN NELSON MOORE, Circuit Judge, dissenting.
Because I believe Aaron Cyars’s counsel’s failure to secure
a limiting instruction on the appropriate use of prior
inconsistent statements constitutes ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984),
and that a contrary view is unreasonable, I respectfully
dissent.
At trial, the prosecution called three key witnesses, James
Morrison (“Morrison”), Don Bailey (“Bailey”), and Todd
Cyars (“Todd”), to demonstrate that Cyars acted with
premeditation and deliberation when he committed the
murders. When each witness did not produce any valuable
evidence on direct examination, the prosecution proceeded to
use unsworn statements allegedly made to police after the
murders. These statements contained highly damaging
comments that Cyars purportedly made to the witnesses
regarding his plan to steal drugs from Taylor’s house and his
admission after the fact that he had completed his plan. When
confronted with the police statements, each of the three
witnesses denied having made the statements or denied the
truth of the statements. Because the police statements were
introduced solely to impeach the witnesses, they could not be
considered as substantive evidence.
Cyars’s trial counsel sought a limiting instruction from the
trial judge permitting the use of the police statements of
Morrison only for impeachment purposes. Because the judge
had never given that kind of instruction before, he asked
Cyars’s counsel to draft a proposed instruction that he could
consider before issuing such an instruction. However,
Cyars’s trial counsel failed to present any limiting instruction
and never again renewed his request. As a result, the jury was
never instructed on the proper use of the prior inconsistent

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No. 02-2341 Cyars v. Hofbauer 17
statements, and was therefore permitted to give whatever
weight it wished to the prior inconsistent police statements.
These statements were the most damaging evidence of
premeditation.
The Michigan Court of Appeals relied on the contents of
these police statements when that court upheld the sufficiency
of the evidence to support Cyars’s conviction for first-degree
murder. Specifically, it stated:
There was evidence that before the shooting, defendant
told two of the prosecution’s witnesses that he intended
to take drugs from one of the decedents’ homes in order
to repay a debt owed to drug dealers for whom defendant
worked. There was also evidence that sometime after
the shooting, defendant told those same witnesses that he
had completed what he earlier planned to do.
Joint Appendix (“J.A.”) at 13. The Magistrate Judge found
that the only source for these conclusions of the Michigan
Court of Appeals was the unsworn police statements of
Morrison and Todd. Thus, the Michigan Court of Appeals
made substantive use of the very evidence that the jury should
have been instructed to use only for impeachment purposes.
This demonstrates both that there was little evidence of
premeditation, and that even judges, let alone juries, are likely
to be confused without proper instructions.
The Michigan Court of Appeals, despite its mistake of
using the prior inconsistent statements for substantive
purposes when evaluating the sufficiency of the evidence, did
nonetheless recognize as black-letter law the principle that
“Prior inconsistent statements not ‘given under oath subject
to the penalty of perjury’ are hearsay and would only be
admissible for impeachment purposes, not as substantive
evidence.” J.A. at 14-15. Nonetheless, the Michigan Court
of Appeals determined that there was no showing of
prejudice. Specifically, that court wrote:
18 Cyars v. Hofbauer No. 02-2341
Defendant has not shown that the prior inconsistent
statements of the witnesses, properly limited with an
instruction, could have proved his theory of self-defense
or disproved the elements of the offenses. Because the
weight and strength of the untainted evidence presented
in this case overwhelmingly supports defendant’s
convictions, and because the error is relatively innocuous
(indeed, it was not error for the prior inconsistent
statements to be put before the jury, only that the jury
could not consider those statements as substantive
evidence), we conclude that defendant was not
prejudiced in this regard.
J.A. at 15-16.
In this appeal, the question for this court is whether Cyars
has shown ineffective assistance of counsel warranting the
grant of habeas relief. We apply the analysis of Strickland,
466 U.S. at 694, with its two prongs, deficient performance
and prejudice. First, Cyars must demonstrate that his trial
counsel’s failure to request the limiting instruction constituted
“deficient performance.” Then, he must prove that he
suffered prejudice as a result of the deficient performance of
counsel. Under this latter prong, Cyars must show that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Caver v. Straub, 349 F.3d 340, 347-48 (6th
Cir. 2003) (quoting Strickland, 466 U.S. at 694).
The majority of this court assumes that Cyars has shown
deficient performance of counsel. It is without doubt that that
prong has been satisfied. Turning to the second prong, the
majority concludes that the Michigan Court of Appeals’
opinion is a reasonable application of the prejudice prong of
Strickland. This conclusion is unreasonable where the
Michigan Court of Appeals itself has misused the very
evidence that can only be used for impeachment purposes,
and where there is slim other evidence to support a finding of
premeditation. Moreover, the Michigan Court of Appeals

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No. 02-2341 Cyars v. Hofbauer 19
completely misstated and misapplied the law when it required
Cyars, in order to demonstrate prejudice under Strickland, to
show that “the prior inconsistent statements of the witnesses,
properly limited with an instruction, could have proved his
theory of self-defense or disproved the elements of the
offenses.” J.A. at 15.
For these reasons, and as thoroughly and ably articulated by
Magistrate Judge Steven Pepe in his exhaustive Report and
Recommendation, a conditional writ of habeas corpus should
issue.
I respectfully dissent.

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