Malcolm Butler v. Paul Renico

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0137n.06
Filed: February 20, 2007
No. 05-1825
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Malcolm Butler,
Petitioner-Appellant,
v.
Paul Renico,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
O P I N I O N
BEFORE: SUHRHEINRICH, SUTTON, and MCKEAGUE, Circuit Judges.
McKeague, Circuit Judge. Petitioner Malcolm Butler appeals the district court’s denial of
Petitioner’s application for habeas relief. Petitioner was convicted in Michigan state court of first-
degree murder and possession of a firearm during the commission of a felony. On appeal, Petitioner
argues that he is entitled to habeas relief because (1) the prosecutor withheld exculpatory
identification evidence, and (2) his counsel was ineffective for (a) failing to move pretrial to suppress
in-court identifications of Petitioner; (b) failing to move for a mistrial when the withheld evidence
was first introduced at trial; and (c) failing to move for a mistrial when purportedly newly discovered
evidence came to light during jury deliberations. For the reasons stated below, we AFFIRM the
order of the district court.
I. BACKGROUND

-- 1 of 17 --

No. 05-1825
Butler v. Renico
- 2 -
On February 17, 2000, Petitioner was convicted in Michigan state court of first-degree
murder, in violation of Mich. Comp. Laws § 750.316, and possession of a firearm during the
commission of a felony, in violation of Mich. Comp. Laws § 750.227b. The convictions arose
out of a carjacking in which Jadeison (Jay) Ladouceur was fatally shot in Detroit, Michigan, on
May 14, 1999. The district court quoted the Michigan Court of Appeals regarding the evidence
at trial:
[Jay] Ladouceur was killed . . . while he was washing his 1996 Chevy Impala.
Several eyewitnesses testified that [Petitioner] struggled with Jay for the car and
shot Jay in the head. [Petitioner] dragged Jay’s body out of the car and drove
away in the Impala. Witnesses testified that [Petitioner] was Jay’s only assailant.
There was evidence that [Petitioner] had been driving a brown car that was left at
the scene of the shooting, and that he took the tires from the Impala to the house
of his cousin, Clee Jackson, where they were later recovered by the police. There
was also evidence that [Petitioner] carried a gun, that he told his cousin that he
had shot someone, and that he was seen with blood on his clothing after the
shooting.
JA at 209-10.
Petitioner’s primary defense was that he was mistakenly identified and that Clee Jackson
was actually the shooter. In support of this claim, Petitioner pointed to the facts that Clee
Jackson more closely fit the description of the perpetrator, evidence from the crime was found in
Jackson’s home, and the Impala was found near Jackson’s home. At trial, four eyewitnesses,
Anne Lynn, Daniel Clark, Tyrone Hawkins, and Lomell Hodges, identified Petitioner as
Ladouceur’s shooter. Lynn and Clark testified on February 14, 2000, and Hawkins and Hodges
testified one day later.

-- 2 of 17 --

No. 05-1825
Butler v. Renico
The district court noted that the letter was postmarked on November 12, 1999, and was1
received by the Wayne County Jail on November 17, 1999, although Petitioner claims that he did
not receive the letter until February 16, 2000, a time after which the jury had already begun its
deliberations. The handwritten letter reads:
What’s up M.D., you cain’t [sic] write a nigga, what up with that, you know
I have you always have, [sic] your blood and nothing can change that fact. Dog I’m
sorry my wife [Johslin Jackson] told those lies, but she was scared man. I went
- 3 -
Lynn had previously attended a lineup and told police that someone in the lineup other
than Petitioner looked like the shooter, but that person was not the shooter. Clark testified that
police had shown him photographs, but that he did not identify anyone in the photographs. After
Clark testified, Petitioner’s counsel stated that a discovery order had been issued and that he
wanted to see the photographs Clark had mentioned while testifying. The prosecutor replied that
he was unaware of any photographic show-up. On February 16, 2000, Investigator Dale Collins
testified that he had taken an array of “about eight or nine photos” to the neighborhood where
Ladouceur was shot and that array contained photos of Petitioner and Clee Jackson. Investigator
Collins testified that no one identified Petitioner as the perpetrator of the crime. Nothing in the
record indicates that police officers showed photographs to Hodges, and Hawkins testified that
he was not shown any photos.
Following his conviction, Petitioner moved for a new trial, contending that (1) the
identification testimony of eyewitnesses Anne Lynn, Daniel Clark, Tyrone Hawkins, and Lomell
Hodges was suspect because they identified Petitioner for the first time at trial; (2) the prosecutor
withheld purportedly exculpatory evidence regarding the witnesses’ inability to identify
Petitioner previously; and (3) there was newly discovered evidence, in the form of a letter1

-- 3 of 17 --

No. 05-1825
Butler v. Renico
along, because they already had her statement before my eyes. But she got her truth-
lies mixed, because goose [sic] and Waldo well Waldo, had the blood, I asked her
why-she said you came back bye [sic], She was scared, and didn’t know what to say.
I couldn’t let my wife be locked up, other wises [sic] she’d lie on anybody to save her
self, she might have said something stupid and they might have listened, then we all
be do [sic] life. But they know you’re being framed, the girl saw your picture on
T.V. and anybody can be smart enough to know that the accused sets [sic] in front of
the Judge, I told her should’ve just [indecipherable] but she thought they’d come bye
[sic] in the night, and shoot up the house, Johslin ain’t like us man, she just don’t
know.
She misses you, just as much as me, and I think about your ass, day-night, me
and big tim [sic] talk about you every day man. I said you’d be out around March-
April but I don’t know what you think of me or us for that matter, I don’t know if you
hate me want to kill me or what. But I do know this, beleave [sic] it or not, even if
you was [sic] guilty, I’d go down my self [sic], if it didn’t have to bring no one [sic]
else with me. I love you man and you running [sic] me crazy. If you need me [sic]
money whatever man I hear I’ll never turn on you, regardless of what you think I’m
hear [sic].
So I’ll have a phone, and you can call. It will be a three way, so I will send
the #.
Mac -n- C.J. cousin – Dogs like it or not when you come home hopefully
together we’ll bring the noise.
Signed C. Jackson, Sr.
[indecipherable] Who what up on the loot.
P.S. If god [sic] willing I’ll be hear [sic] when you come home you know I’m
sick and I got a couple beef to [sic] so I love ya.
See you then Cousin.
Cortez -n- Jessee trying to write you to [sic] but I cain’t [sic] write all that[.]
[Y]ou won’t read it all.
JA at 99-101, 220-21.
- 4 -
written by Clee Jackson to Petitioner while Petitioner was awaiting trial in jail, which implies
that Petitioner was framed and that Jackson and his wife lied about Petitioner’s involvement in
the shooting.

-- 4 of 17 --

No. 05-1825
Butler v. Renico
- 5 -
The trial court denied Petitioner’s motion, concluding that “[t]he jury heard Mr. Jackson’s
testimony implicating [Petitioner], along with the testimony of the other witnesses,” and that
“[e]ven if the Court allowed Mr. Jackson to testify in a manner consistent to [sic] statements in
his letter, the great weight of the evidence produced at the trial still established [Petitioner’s]
involvement in this crime.” JA at 605. The trial court further held that the witnesses’ in-court
identifications of Petitioner “were made by their observation of [him] at the time of the incident,”
and that the failure by the prosecutor to disclose the witnesses’ failed identification of Petitioner
when they were shown his photo did not deny Petitioner a fair trial. JA at 210-11, 605. The
Michigan Court of Appeals affirmed Petitioner’s conviction, and the Michigan Supreme Court
denied leave to appeal.
Petitioner filed a habeas corpus petition on January 30, 2004, claiming that (1) the
prosecutor withheld exculpatory evidence in the form of witnesses who made in-court
identifications at trial being unable to identify Petitioner in a previous lineup; (2) Petitioner’s trial
counsel failed to move pretrial for suppression of the in-court identifications; (3) Petitioner’s trial
counsel failed to move for a mistrial when the withheld exculpatory identification evidence was
first introduced at trial; (4) Petitioner’s trial counsel failed to move for a mistrial when newly
discovered exculpatory evidence, namely Clee Jackson’s letter, came to light during jury
deliberations; and (5) Petitioner’s trial counsel did not request the cautionary accomplice
instruction for witness Clee Jackson, where Jackson testified to his role as an accessory after the
fact, all physical evidence pointed to Jackson as the perpetrator, and Jackson fit the description of
the perpetrator as given by eyewitnesses.

-- 5 of 17 --

No. 05-1825
Butler v. Renico
- 6 -
The district court denied the petition. First, it concluded that Petitioner was not
prejudiced by the alleged suppression of exculpatory evidence because it “was brought to the
jury’s attention and because [Petitioner’s] attorney had an opportunity to cross-examine the
eyewitnesses about their identification testimony.” JA at 216. The district court also pointed out
that Petitioner’s trial counsel used the information in making his closing argument, contending
that it raised a reasonable doubt. Accordingly, the district court held that there is not a
reasonable probability that the result of the trial would have been different, even if the evidence
had been disclosed prior to trial. Second, the district court concluded that (1) although
Petitioner’s trial counsel did not move to suppress the in-court identifications, he did attack the
credibility of those identifications and (2) a motion to suppress the identifications likely would
not have succeeded in any event.
Third, the district court held that Petitioner’s trial counsel’s failure to move for a mistrial
when Clee Jackson’s letter was brought to light was a reasonable strategic decision because (1)
the letter was not an admission of perjury and (2) there was not a reasonable probability that the
outcome of the trial would have been different if Petitioner’s trial counsel had moved for a
mistrial because Petitioner’s appellate attorney raised the same issue in a motion for new trial,
and the trial court denied that motion. Finally, the district court held that Petitioner’s trial
counsel was not ineffective for failing to request a jury instruction on accomplice testimony
because there was no evidence that Clee Jackson assisted Petitioner in the murder.
Petitioner filed a timely appeal, raising those claims he raised in the habeas petition, with
the exception that he did not raise the claim regarding accomplice liability.

-- 6 of 17 --

No. 05-1825
Butler v. Renico
- 7 -
II. ANALYSIS
A. Standard of Review
This court applies a de novo standard of review to the district court’s conclusions of law
and mixed questions of law and fact and accordingly uses the same standard of review as the
district court. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). This court reviews the
district court’s findings of fact only for clear error. Id. at 1010; Armstrong v. Morgan, 372 F.3d
778, 781 (6th Cir.), cert. denied, 543 U.S. 982 (2004). The Antiterrorism and Effective Death
Penalty Act of 1996 dictates the standard of review for habeas petitions filed after April 26,
1996. 28 U.S.C. § 2254(d). The Supreme Court has held that
[u]nder § 2254(d)(1), the writ may issue only if one of the following two
conditions is satisfied – the state-court adjudication resulted in a decision that (1)
“was contrary to . . . clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “involved an unreasonable application
of . . . clearly established Federal law, as determined by the Supreme Court of the
United States.” Under the “contrary to” clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by this
court on a question of law or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The Court has further held that “contrary to”
should be construed to mean “diametrically different, opposite in character or nature, or mutually
opposed” and that the proper inquiry for the “unreasonable application” analysis is whether the
state court decision was “objectively unreasonable” and not simply erroneous or incorrect. Id. at
409-11.

-- 7 of 17 --

No. 05-1825
Butler v. Renico
- 8 -
B. Withheld Evidence
A criminal defendant’s due process rights are violated if the government suppresses
favorable evidence where that evidence is material to guilt or punishment, irrespective of the
good or bad faith of the prosecution. Strickler v. Greene, 527 U.S. 263, 280 (1999); Brady v.
Maryland, 373 U.S. 83, 87 (1963). A Brady violation consists of three elements: (1) the
evidence at issue must be favorable to the accused, either because it is exculpatory or
impeaching; (2) the state must have suppressed the evidence, whether wilfully or inadvertently;
and (3) prejudice must have resulted. Strickler, 527 U.S. at 281-82. The defendant has the
burden of proving a Brady violation. Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000) (citing
Moore v. Illinois, 408 U.S. 786, 794-95 (1972)). The Supreme Court has held that the failure to
disclose evidence is “material” and “prejudicial” to the defendant if the evidence creates a
reasonable probability of a different result, Strickler, 527 U.S. at 280, 282, and that a reasonable
probability of a different result exists if the government’s suppression of evidence undermines
confidence in the outcome of the trial, Kyles v. Whitley, 514 U.S. 419, 434 (1995).
On appeal, Petitioner raises several arguments in regards to this issue. First, he attempts
to analogize to Jamison v. Collins, 291 F.3d 380 (6th Cir. 2002). Second, he claims that contrary
to the district court opinion, he did not have an adequate opportunity to cross-examine the
identification testimony. He asserts that this is true because (1) the suppressed photos, officer
notes, and officer reports were never produced, and (2) the “full content of the exculpatory
evidence” was not elicited until Investigator Collins testified during the third day of the trial,
after some eyewitnesses had been cross-examined and released. Third, Petitioner claims that he

-- 8 of 17 --

No. 05-1825
Butler v. Renico
The following colloquy occurred during cross-examination of Lynn by Petitioner’s trial2
counsel:
Q. Now, did you ever attend a lineup?
A. Yes.
Q. At any point?
A. Yes.
Q. That had the defendant, Mr. Butler, in the lineup?
A. No.
Q. But you were asked to attend a lineup.
A. Yes, I was.
Q. Is that correct?
A. Yes.
Q. And did you ever say that anyone else was the shooter?
A. No.
Q. Never identified another person as the shooter in this case?
A. No, I didn’t. At the lineup, they asked me who looked the most like the
defendant, and I pointed a man out, but I told them, “That looks like him, but that is
not him.”
JA at 463-64. Lynn later testified that she only attended one lineup and that she never viewed
photographs for police officers.
- 9 -
was prejudiced because he never had the benefit of demonstrating the comparison between the
show-up photographs and his appearance at trial, which he argues tainted the in-court
identifications.
The district court did not err in connection with this issue because under the facts of this
case, Petitioner cannot show that the purportedly suppressed evidence “undermine[d] confidence
in the outcome of the trial.” Kyles, 514 U.S. at 434. Indeed, Petitioner’s trial counsel questioned
the eyewitnesses whom the evidence concerned through cross-examination on the second day of
trial: Lynn was questioned regarding her attendance at a lineup, and Clark was questioned2

-- 9 of 17 --

No. 05-1825
Butler v. Renico
The following colloquy occurred during cross-examination of Clark by Petitioner’s trial3
counsel:
Q. Did they ever have you come – when I say “they,” I mean the police – ever have
you come down and view photographs?
A. They had me view photographs, but they brought it [sic] to me.
Q. Oh, they did?
A. Um hmm.
Q. When did they do that, sir?
A. I don’t quite remember the exact date and time.
Q. Did you identify anyone in those photographs?
A. No.
Q. And was it after May 14th, 1999?
A. I don’t remember the time. I don’t –
Q. (Interposing) About how many days, if you know, after the shooting?
JA at 272. The remainder of the cross-examination of Clark is not present in the record.
- 10 -
regarding his viewing of a photographic display. Moreover, the district court noted that3
Petitioner’s trial counsel argued in his closing statement that this failure created a reasonable
doubt.
Furthermore, it cannot be said that confidence in the outcome of the trial was undermined
because the identification evidence against Petitioner was overwhelming. The photographic
display evidence only pertained to Clark, yet Lynn, Hawkins, and Hodges also identified
Petitioner at trial as the shooter, and their testimony cannot be claimed to have been tainted by
the allegedly suppressed evidence. Hodges identified Petitioner in court and said that there was
no one else in the immediate area involved in the struggle. Hawkins identified Petitioner in
court, and he testified that he knew Petitioner from before the incident and that he had a clear

-- 10 of 17 --

No. 05-1825
Butler v. Renico
Petitioner’s reliance on Jamison is misplaced. In that case, the petitioner only became4
aware of the suppressed exculpatory evidence after he was convicted. 291 F.3d at 383-84. To the
contrary, in the instant case Petitioner became aware of the allegedly exculpatory evidence at a time
early enough such that Petitioner’s trial counsel was able to argue to the jury that a reasonable doubt
existed due to this evidence. Furthermore, other identification testimony overwhelmingly implicated
Petitioner here. Accordingly, Jamison is inapplicable and Petitioner’s attempt to analogize to that
case does not undermine confidence in the trial’s outcome.
- 11 -
view of Petitioner’s face during the carjacking. Accordingly, Petitioner has not established all
three elements of a Brady violation.4
C. Ineffective Assistance of Counsel
In order to establish ineffective assistance of counsel, a defendant must demonstrate that
(1) the performance of his counsel was deficient and (2) the deficient performance thereby
prejudiced the defense and deprived the defendant of a fair trial, a trial with a reliable result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel’s
performance was deficient, Strickland dictates that the inquiry “must be highly deferential”:
A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. . . . [A] court must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance . . . . A convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment.
Id. at 689-90. In determining whether counsel’s performance was prejudicial, “[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.” Id. at 694. The Strickland Court further
held that a “reasonable probability is a probability sufficient to undermine the confidence in the

-- 11 of 17 --

No. 05-1825
Butler v. Renico
- 12 -
outcome.” Id. Finally, it should be noted that courts are not required to conduct an analysis
under both prongs of the Strickland test; indeed, the court need not address the question of
competence if it is easier to dispose of the claim due to a lack of prejudice. Id. at 697; Mallet v.
United States, 334 F.3d 491, 497 (6th Cir. 2003).
1. Failure to move to suppress in-court identifications
Petitioner asserts that a motion to suppress the in-court identifications of him as the
shooter was appropriate and “under the totality of the circumstances, his likelihood of prevailing
was probable.” In support of his claim, Petitioner points out that Lynn admitted that the
prosecuting attorney told her that he needed her to come in and identify Petitioner as the shooter.
He analogizes his situation to cases of suggestive show-ups in which a victim is told that his
attacker is in a line-up or a defendant is walked into the courtroom in shackles with a United
States marshal at each side. Petitioner also notes that eyewitnesses gave physical descriptions
contrary to Petitioner’s physical characteristics and were unable to identify Petitioner in
photographic show-ups, both facts that he argues undermine the reliability of the in-court
identification.
The district court did not err in denying Petitioner habeas relief on this ground. There
was no suggestive pretrial identification under the facts of this case because nothing in the record
indicates, and indeed Petitioner does not claim, that there was a pretrial identification at all;
rather, there was only a failure by Clark to identify Petitioner pretrial. Moreover, as the district
court correctly pointed out, the failure of a witness to identify a petitioner pretrial “goes only to
the weight to be accorded testimony, not its admissibility.” United States v. Causey, 834 F.2d

-- 12 of 17 --

No. 05-1825
Butler v. Renico
- 13 -
1277, 1286 (6th Cir. 1987). Accordingly, the fact that none of the witnesses identified Petitioner
pretrial is not a basis for suppressing their in-court identifications of him.
A motion to suppress the in-court identifications would not have succeeded for any other
reason either. An identification violates a criminal defendant’s due process rights if the
procedure is so unnecessarily suggestive so as to run the risk of irreparable mistaken
identification. Neil v. Biggers, 409 U.S. 188, 198-200 (1972); Howard v. Bouchard, 405 F.3d
459, 469 (6th Cir. 2005). The petitioner bears the burden of showing impermissible
suggestiveness, Howard, 405 F.3d at 469, and the analysis is two-part: the court first assesses
whether the identification was unnecessarily suggestive, and if so, the court determines whether
the identification was nonetheless reliable. Id.; Wilson v. Mitchell, 250 F.3d 388, 397 (6th Cir.
2001).
Lynn admitted that she was told that someone was apprehended in connection with the
shooting, that that person would be in court, and that law enforcement needed her to identify him.
However, she also testified that she was not told she had to identify anyone in court and that the
prosecutor told her that if Petitioner was not the shooter, then she needed to take the stand and
testify that he was not. Accordingly, the identification was not unnecessarily suggestive.
Moreover, she testified that the day of the shooting “was a sunny day, a really nice day,” that her
vision “was good,” that there was nothing obstructing her view, that she saw Petitioner’s face at
several times during the carjacking, and that she was “absolutely positive” that Petitioner was the
shooter. JA at 461-62. Therefore, even if the identification was unnecessarily suggestive, it was
not unreliable under these facts.

-- 13 of 17 --

No. 05-1825
Butler v. Renico
- 14 -
Even if Lynn’s identification should have been suppressed, Petitioner still was not
deprived of ineffective assistance of counsel because he could not establish that “but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland at 694. The eyewitness testimony of Clark, Hodges, and Hawkins would not have
been suppressed, as discussed below. Accordingly, that testimony compels the conclusion that
the result of the proceeding would not have been changed if Petitioner’s trial counsel had moved
to suppress Lynn’s in-court identification of Petitioner.
Petitioner’s remaining complaints would not exclude the in-court identifications either.
He complains of ten months elapsing between the time of the carjacking and the trial as well as
the fact that many of the witnesses’ physical descriptions of the shooter did not match his. First,
this circuit has upheld a challenge to an in-court identification that occurred a year and a half
after a photo lineup following an incident. United States v. Meyer, 359 F.3d 820, 825 (6th Cir.
2004). Second, the physical description discrepancies go to reliability, and that information came
out on cross-examination of the witnesses. Regarding reliability, moreover, the evidence against
Petitioner is overwhelming. Clark identified Petitioner in court, and in doing so, he testified that
he saw Petitioner’s face during the incident, and that was the only reason he was identifying
Petitioner in court; Hawkins testified that he knew Petitioner from the neighborhood, that he got
a clear look at Petitioner’s face as the perpetrator, and that he identified Petitioner in court
because “that’s who I seen [sic] at the day and time of the shooting,” JA at 332-34, 345; and
Hodges identified Petitioner in court and also said that there was no one else in the immediate
area involved in the struggle.

-- 14 of 17 --

No. 05-1825
Butler v. Renico
- 15 -
2. Failure to move for a mistrial when the withheld identification evidence was first
introduced at trial
Petitioner next claims that his trial counsel was ineffective because that counsel did not
move for a mistrial once the purported exculpatory evidence in the form of Clark’s having
previously viewed a photographic display and not chosen Petitioner’s photograph came to light
during the trial. Petitioner’s brief, however, contains no argument regarding why (1) the
performance of his counsel was deficient in this respect, or (2) the deficient performance thereby
prejudiced the defense and deprived the defendant of a fair trial.
This claim by Petitioner must also fail. Petitioner’s trial counsel asked Clark on cross-
examination whether he had viewed a photographic display and whether he had identified
anyone. Furthermore, that Clark did not identify Petitioner in the photographic display pretrial
goes only to the weight to be accorded to his testimony, not its admissibility. Causey, 834 F.2d at
1286. Accordingly, Petitioner can establish neither that his trial counsel’s not moving for
mistrial when this evidence came to light was deficient nor that prejudice resulted that deprived
him of a fair trial.
3. Failure to move for a mistrial when newly discovered evidence in the form of Clee
Jackson’s letter came to light during jury deliberations
Petitioner also argues that his trial counsel was ineffective for not moving for a mistrial
when Clee Jackson’s letter came to light. Petitioner alleges that the contents of the letter
demonstrate that Mr. Jackson perjured himself regarding Petitioner’s involvement in the crime.
Petitioner contends that Mr. Jackson’s perjured testimony at trial directly contradicted
Petitioner’s theory of the case, namely misidentification. Petitioner thus claims that he “is at a

-- 15 of 17 --

No. 05-1825
Butler v. Renico
- 16 -
loss to explain the degree of incompetence of counsel when provided with particular evidence,
handwritten and signed by a lead state’s witness admitting his own guilt, and exonerating
Petitioner of the conviction charges.” Petitioner’s Br. 51.
The district court, denying Petitioner relief, properly decided this issue. Petitioner can
show neither element of Strickland under these facts. First, his trial counsel was not deficient.
Petitioner’s trial counsel waited to see if Petitioner was convicted before moving for a new trial
on the basis that Petitioner complains. This strategy allowed Petitioner to find out whether he
was even convicted before raising the issue, and a not guilty verdict would have foreclosed any
further prosecution unlike a successful motion for a mistrial. Accordingly, the new trial motion
allowed for Petitioner to raise the issue at the trial court level without losing the chance of
receiving a not guilty verdict. This strategy surely meets the deferential standard of Strickland
set out above.
Second, Petitioner cannot show prejudice. Indeed, as the district court noted, the
ambivalent letter more likely concerns the Jacksons’ statements to police, not their testimony.
This conclusion is supported by the fact that the trial occurred in February 2000, yet even
Petitioner admits that the letter was stamped received by the Wayne County Jail on November
17, 1999. Furthermore, to the extent that the trial court denied Petitioner’s motion for a new trial
on the same issue, there is not a reasonable probability that the outcome of the trial would have
been different even if Petitioner’s trial counsel had moved for a mistrial. Indeed, the trial court
recognized that even with Clee Jackson testifying consistently with his letter, other evidence
established Petitioner’s involvement in the crime. The four eyewitnesses’ testimony, discussed

-- 16 of 17 --

No. 05-1825
Butler v. Renico
- 17 -
above, was reliable, and it was overwhelming. Accordingly, Petitioner can show neither
prejudice nor deficient performance, and his ineffective assistance claim on this issue fails.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the district court.

-- 17 of 17 --