Ferensic v. Birkett ( 2007 )


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  •                             RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 07a0358p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Petitioner-Appellee, -
    ROBERT FERENSIC,
    -
    -
    -
    No. 06-2342
    v.
    ,
    >
    THOMAS BIRKETT,                                           -
    Respondent-Appellant. -
    N
    Appeal from the United States District Court
    for the Eastern District of Michigan at Detroit.
    No. 03-71435—Arthur J. Tarnow, District Judge.
    Argued: June 8, 2007
    Decided and Filed: September 4, 2007
    Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: Janet A. VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan,
    for Appellant. Domnick J. Sorise, Detroit, Michigan, for Appellee. ON BRIEF: Janet A.
    VanCleve, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
    Domnick J. Sorise, Detroit, Michigan, for Appellee.
    GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined. McKEAGUE,
    J. (pp. 15-22), delivered a separate dissenting opinion.
    _________________
    OPINION
    _________________
    RONALD LEE GILMAN, Circuit Judge. A Michigan state jury convicted Robert Ferensic
    in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a
    felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications
    made by the victimized couple, Alexander and Angie Kostoff. Ferensic appealed, arguing among
    other things that (1) the trial court had violated his right to present a defense by preventing two of
    his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John,
    who had observed the robbers prior to their entering the Kostoffs’ home—from testifying, and
    (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses
    were allowed to testify. The Michigan Court of Appeals upheld Ferensic’s convictions, essentially
    reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the
    actions of the trial judge or of defense counsel, did not prejudice Ferensic.
    1
    No. 06-2342           Ferensic v. Birkett                                                        Page 2
    Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again
    raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals’s
    ruling on each ground constituted an unreasonable application of clearly established federal law, the
    district court conditionally granted Ferensic’s petition. The Warden now appeals. For the reasons
    set forth below, we AFFIRM the judgment of the district court.
    I. BACKGROUND
    The Michigan Court of Appeals laid out the following relevant facts and procedural history
    of this case in People v. Ferensic, No. 221806, 
    2001 WL 865089
    , at *1-2 (Mich. Ct. App. July 31,
    2001):
    The victims, an elderly, married couple, identified defendant as one of two
    perpetrators who broke into their house and robbed them of money and other
    valuables at gunpoint. After describing defendant to the investigating officers, the
    victims met with a police sketch artist, who sketched composites of the perpetrators
    based on the victims’ descriptions. One of the officers in charge of the investigation
    recognized defendant, a former police officer, and defendant’s roommate from these
    sketches, and compiled a photographic array that included defendant. Only one of
    the victims was able to identify defendant from the photographic array. However,
    both victims identified defendant from a live lineup and at defendant’s preliminary
    examination. The victims’ identification of defendant, along with the officer’s
    testimony that he recognized the two individuals based on the sketch artist’s
    renderings, was the only evidence that defendant was involved in the offenses.
    ...
    In denying the prosecution’s relevant motion in limine six months prior to
    defendant’s trial, the court ruled that the expert [Dr. Shulman] would be permitted
    to testify so long as defendant furnished a copy of the expert’s report to the
    prosecution two months before trial. In violation of that order, defendant mailed a
    copy of the expert’s report to the prosecution only eleven days before trial.
    Following the parties’ opening statements, in which each party emphasized that the
    identity of the perpetrators was the central issue in the case and in which defendant
    repeatedly told the jurors that defendant would present expert testimony on the
    inherent unreliability of eyewitness testimony, the prosecution successfully moved
    to exclude defendant’s expert witness from testifying. The court reasoned that the
    prosecution was unable to retain its own expert witness on identification without
    delaying the trial, and that although defendant mailed the report on the same day he
    received it, it had been his responsibility to chase up the expert to ensure compliance
    with the order.
    (Footnote omitted.) Later in the trial, after the defense had rested, the court also denied Ferensic’s
    separate motion for a brief adjournment to allow time for St. John to arrive at the courthouse and
    take the stand.
    Both Dr. Shulman and St. John testified during an evidentiary hearing held by the district
    court in connection with Ferensic’s habeas petition. (Ferensic’s trial counsel also was a witness at
    the hearing, but his testimony is not directly relevant to this appeal.) The court provided the
    following summary of their testimony:
    Danny St. John testified at the evidentiary hearing that he did not know Petitioner
    and never saw him before. Similar testimony at trial might have caused the jurors
    to question the Kostoffs’ testimony even though Mr. St. John could describe only one
    No. 06-2342            Ferensic v. Birkett                                                         Page 3
    of the two men he saw. In addition, his description of one of the robbers as having
    black curly hair was consistent with the original description given by Mr. and Mrs.
    Kostoff, which they denied at trial.
    ...
    Dr. Shulman testified at the evidentiary hearing that several factors, such as divided
    attention, stress, passage of time, photo arrays, collaboration of witnesses, and social
    conformity, affect memory. He noted that crime produces stress, which makes high
    resolution (detailed) memory of faces difficult. He opined that the guns carried by
    the robbers in this case were the most distracting factor, because a person’s attention
    is directed to a weapon. “Sticky attention” to a weapon reduces the ability to recall
    details and leads to inaccurate identification, according to Dr. Shulman. In addition,
    gaps in memory are filled in by world knowledge, post-event information,
    inferences, and talking to other witnesses. Eyewitnesses find it difficult to disregard
    these influences on memory. Dr. Shulman also stated that there is no statistical
    relationship between a witness’s level of confidence in his or her identification and
    the accuracy of memory.
    II. ANALYSIS
    A.      Standard of review
    Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No.
    104-132, 110 Stat. 1214, a federal court
    may not grant a writ of habeas [corpus] to a petitioner in state custody with respect
    to any claim adjudicated on the merits in state court unless (1) the state court’s
    decision “was contrary to, or involved an unreasonable application of, clearly
    established Federal law, as determined by the Supreme Court,” . . . or (2) the state
    court’s decision “was based on an unreasonable determination of the facts in light
    of the evidence presented in the State court proceedings.”
    Taylor v. Withrow, 
    288 F.3d 846
    , 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)). This standard
    requires the federal courts to give considerable deference to state-court decisions. Herbert v. Billy,
    
    160 F.3d 1131
    , 1135 (6th Cir. 1998) (“[AEDPA] tells federal courts: Hands off, unless the judgment
    in place is based on an error grave enough to be called unreasonable.”) (quotation marks omitted).
    The first line of analysis under AEDPA focuses on the consistency of the state-court decision
    with existing federal law. A state-court decision is considered “contrary to . . . clearly established
    Federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.”
    Williams v. Taylor, 
    529 U.S. 362
    , 405 (2000) (emphasis and quotation marks omitted).
    Alternatively, to be found an “unreasonable application of . . . clearly established Federal law,” the
    state-court decision must be “objectively unreasonable,” not simply erroneous or incorrect. 
    Id. at 409-11.
    If a state-court decision meets either of these two “preconditions” for habeas
    relief—thereby establishing a constitutional error—the reviewing federal court must still determine
    whether the error is harmless within the meaning of Brecht v. Abrahamson, 
    507 U.S. 619
    (1993).
    Fry v. Pliler, 
    127 S. Ct. 2321
    , 2327-28 (2007) (noting that AEDPA “sets forth a precondition to the
    grant of habeas relief . . . , not an entitlement to it,” and that “in § 2254 proceedings a [federal] court
    must assess the prejudicial impact of constitutional error in a state-court criminal trial under the
    ‘substantial and injurious effect’ standard set forth in Brecht”). Brecht applies “whether or not the
    state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless
    beyond a reasonable doubt’ standard set forth in Chapman [v. California], 
    368 U.S. 18
    [, 24 (1967)].”
    
    Id. at 2328.
    No. 06-2342           Ferensic v. Birkett                                                       Page 4
    The second line of analysis under AEDPA examines the findings of fact made by the state
    courts. AEDPA requires federal courts to accord a high degree of deference to such factual
    determinations. “A federal court is to apply a presumption of correctness to state court findings of
    fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this
    presumption. The appeals court gives complete deference to the federal district court’s and state
    court’s findings of fact supported by the evidence.” McAdoo v. Elo, 
    365 F.3d 487
    , 493-94 (6th Cir.
    2004) (citations omitted).
    B.     The Michigan Court of Appeals’s decision
    The Michigan Court of Appeals was the last state court to review Ferensic’s claims during
    postconviction proceedings. Because its review was on the merits, we must apply AEDPA
    deference to that decision. The Court of Appeals first held that the trial court had not abused its
    discretion in prohibiting Dr. Shulman from testifying as a witness for Ferensic. Ferensic, 
    2001 WL 865089
    , at *2. Specifically, the Court of Appeals noted that, although this prohibition was a
    “concededly severe sanction” for Ferensic’s failure to comply with the trial court’s production order,
    it “was nothing more than the court had warned of six months before trial.” 
    Id. at *2.
    In addition,
    the Court of Appeals concluded that Ferensic was not prejudiced by the exclusion of Dr. Shulman’s
    testimony “because defense counsel was otherwise able to effectively challenge inconsistencies in
    the victims’ identification testimony.” 
    Id. The Court
    of Appeals also held that the trial court had not abused its discretion in denying
    Ferensic’s motion for a brief adjournment to allow St. John time to arrive at the courthouse and
    testify. Essentially, the Court of Appeals determined that Ferensic had not been prejudiced by St.
    John’s absence because “[t]he purported testimony was not especially strong, . . . and inconsistency
    inherent in the victims’ identification was otherwise shown.” 
    Id. The Court
    of Appeals used similar reasoning—that is, an absence of prejudice—to reject
    Ferensic’s ineffective-assistance-of-counsel claim. “Although counsel’s failure to secure the
    testimony of these two witnesses was objectively unreasonable, defendant has not shown that absent
    this deficient performance the outcome of his trial would have been different.” 
    Id. This conclusion
    derived from the Court of Appeals’s determination that “[t]he victims’ identification of defendant
    was effectively attached [sic] through other means, and standing alone, the testimony of the officer
    who recognized defendant from the sketch artist’s rendering would arguably have been sufficient
    to convict.” 
    Id. C. The
    district court’s habeas review
    The district court agreed with the Michigan Court of Appeals that “defense counsel was able
    to challenge inconsistencies in the victims’ identification testimony” even without the two excluded
    witnesses. But the district court concluded that these alternative challenges “were not an effective
    substitute” for what the two witnesses, especially Dr. Shulman, would have provided. The district
    court explained its reasoning as follows:
    Identity was the primary issue. Dr. Shulman would have demonstrated how an
    eyewitness’ memory and recognition are not as reliable as one might initially
    believe. Without his testimony there was no evidence to support counsel’s argument
    [regarding the inherent unreliability of eyewitness identifications].
    ...
    Mr. St. John also would have helped the defense, because his description of a suspect
    with curly black hair matched the description that the Kostoffs gave to the police.
    At trial, the Kostoffs denied telling the police that Petitioner had curly black hair.
    No. 06-2342           Ferensic v. Birkett                                                       Page 5
    Therefore, Mr. St. John’s testimony might have led the jurors to believe that the
    Kostoffs tailored their trial testimony to fit Petitioner’s actual appearance. In
    addition, Mr. St. John testified at the evidentiary hearing that he had never seen
    Petitioner before the hearing.
    Ferensic, in the district court’s opinion, was therefore “deprived of a substantial defense by
    the exclusion of Danny St. John and Dr. Harvey Shulman,” and the conflicting decision of the
    Michigan Court of Appeals was “contrary to, or an unreasonable application of, clearly established
    federal law as determined by the Supreme Court.”
    Regarding Ferensic’s related ineffective-assistance-of-counsel claim, the district court agreed
    with the Michigan Court of Appeals that Ferensic’s attorney had in fact been deficient in failing to
    secure both Dr. Shulman’s and St. John’s testimony. But unlike the Court of Appeals, the district
    court concluded that this deficient performance had prejudiced Ferensic. The district court
    emphasized that “no physical evidence linked Petitioner to the crimes” and that, instead, the entirety
    of the state’s case against him was based on multiple eyewitness identifications. Both Dr.
    Shulman’s and St. John’s testimony, moreover, “might have led the jurors to question the Kostoffs’
    identification testimony.” This possibility was enough, in the district court’s opinion, “to undermine
    confidence in the outcome of [Ferensic’s] trial.”
    The district court also pointed out that the Michigan Court of Appeals’s no-prejudice
    determination rested in part on a faulty legal premise. As noted above, the Court of Appeals
    concluded not only that the victims’ identification of Ferensic was effectively attacked through other
    means, but that, “standing alone, the testimony of the officer who recognized defendant from the
    sketch artist’s rendering would arguably have been sufficient to convict.” Ferensic, 
    2001 WL 865089
    , at *2. This focus on the sufficiency of the evidence against Ferensic, in the district court’s
    opinion, was proof that the Michigan Court of Appeals had employed the wrong standard in
    analyzing his claim because “[t]he prejudice inquiry ‘is not the same as the sufficiency of the
    evidence analysis.’” (Quoting Richey v. Mitchell, 
    395 F.3d 660
    , 687 (6th Cir.), overruled on other
    grounds by Bradshaw v. Richey, 
    546 U.S. 74
    (2005).) The district court further cited Richey for the
    proposition that the prejudice inquiry under Strickland is not tantamount to
    the analysis that a court might perform when deciding a motion for summary
    judgment. As the Fifth Circuit has explained, [the Court] need not find “that a
    reasonable jury could not have reached the same verdict if counsel had performed
    effectively.” Johnson v. Scott, 
    68 F.3d 106
    , 109 n.4 (5th Cir. 1995). [Petitioner]
    “need not show that he could not have been convicted. Instead, he need only
    undermine [the Court’s] confidence in the trial’s outcome.” Foster [v. Lockhart,
    
    9 F.3d 722
    , 726 (8th Cir. 1993)].
    
    Richey, 395 F.3d at 687
    (emphasis in original).
    Because the Michigan Court of Appeals not only reached what the district court believed was
    an incorrect result, but did so by way of an erroneous legal analysis, the district court concluded that
    the decision “amounted to an unreasonable application of Strickland.”
    D.      Our review
    We will confine our review to Ferensic’s right-to-present-a-defense claim, which we believe
    to be the stronger of his two grounds for habeas relief. Ferensic seems to agree, styling
    his ineffective-assistance-of-counsel claim as an “alternative” argument. We also note that much
    of what we would have to say about this alternative claim is necessarily encompassed by our
    harmless-error analysis in Part II.D.2. below.
    No. 06-2342           Ferensic v. Birkett                                                        Page 6
    1.      Right to present a defense
    The right of an accused to present a defense in a criminal trial derives from the Compulsory
    Process Clause of the Sixth Amendment to the U.S. Constitution, and “stands on no lesser footing
    than the other Sixth Amendment rights that we have previously held applicable to the States.”
    Taylor v. Illinois, 
    484 U.S. 400
    , 409 (1988). In fact, “[f]ew rights are more fundamental than that
    of an accused to present witnesses in his own defense.” 
    Id. at 408
    (quoting Chambers v. Mississippi,
    
    410 U.S. 284
    , 302 (1973)). In Taylor, the Supreme Court explained the origins and nature of the
    right as follows:
    The right to compel a witness’ presence in the courtroom could not protect the
    integrity of the adversary process if it did not embrace the right to have the witness’
    testimony heard by the trier of fact. The right to offer testimony is thus grounded in
    the Sixth Amendment even though it is not expressly described in so many words:
    “The right to offer the testimony of witnesses, and to compel their attendance, if
    necessary, is in plain terms the right to present a defense, the right to present the
    defendant’s version of the facts as well as the prosecution’s to the jury so it may
    decide where the truth lies. Just as an accused has the right to confront the
    prosecution’s witnesses for the purpose of challenging their testimony, he has the
    right to present his own witnesses to establish a defense. This right is a fundamental
    element of due process of 
    law.” 484 U.S. at 409
    (quoting Washington v. Texas, 
    388 U.S. 14
    , 19 (1967)).
    The right to present a defense, however, is not absolute. See 
    Taylor, 484 U.S. at 409
    (“The
    accused does not have an unfettered right to offer testimony that is incompetent, privileged, or
    otherwise inadmissible under standard rules of evidence.”); see also Michigan v. Lucas, 
    500 U.S. 145
    , 152 (1991) (noting that the Taylor court “rejected the defendant’s argument that, under the
    Compulsory Process Clause of the Sixth Amendment, preclusion is never a permissible sanction for
    a discovery violation”) (emphasis and quotation marks omitted). As the Supreme Court reiterated
    most recently in United States v. Scheffer, 
    523 U.S. 303
    , 308 (1998) (quoting Rock v. Arkansas, 
    483 U.S. 44
    , 56 (1987)), the exclusion of evidence in a criminal trial “abridge[s] an accused’s right to
    present a defense” only where the exclusion is “‘arbitrary’ or ‘disproportionate to the purpose[] [it
    is] designed to serve.’” See also 
    Scheffer, 523 U.S. at 330
    (Stevens, J., dissenting) (“As the Court
    notes today, restrictions on the ‘defendant’s right to present relevant evidence’ . . . must comply with
    the admonition in Rock . . . .”) (citations omitted).
    According to the Warden, the arbitrary-or-disproportionate standard is so “general” that a
    federal habeas court would be hard-pressed to find that a state court unreasonably applied the
    standard within the meaning of AEDPA. The Supreme Court, however, has furnished ample,
    specific guidance as to what will and will not qualify as arbitrary or disproportionate. In applying
    the Rock standard or some earlier formulation thereof, for example, the Court has “found the
    exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has
    infringed upon a weighty interest of the accused.” 
    Scheffer, 523 U.S. at 308
    (citing 
    Rock, 483 U.S. at 58
    , 
    Chambers, 410 U.S. at 302
    , and 
    Washington, 388 U.S. at 22-23
    ).
    In addition, the Supreme Court has given special consideration to the nature of the exclusion-
    triggering discovery violation at issue, noting that only egregious violations involving, for example,
    “willful misconduct” on the part of the defendant or his counsel will justify the exclusion of material
    evidence. See 
    Lucas, 500 U.S. at 152
    (quotation marks omitted) (emphasizing the trial court’s
    conclusion in Taylor that the “discovery violation amounted to willful misconduct and was designed
    to obtain a tactical advantage,” and that the Supreme Court’s decision to uphold the exclusion of an
    undisclosed witness in that case was explicitly “[b]ased on these findings”). Alternative, less severe
    No. 06-2342           Ferensic v. Birkett                                                        Page 7
    sanctions than exclusion will thus be “adequate and appropriate in most cases.” 
    Id. (quoting Taylor
    ,
    484 U.S. at 413). Stated differently, the exclusion of a defendant’s evidence should be reserved for
    only those circumstances where “a less severe penalty ‘would perpetuate rather than limit the
    prejudice to the State and the harm to the adversary process.’” 
    Lucas, 500 U.S. at 152
    (quoting
    
    Taylor, 484 U.S. at 413
    ).
    Regarding the trial court’s exclusion of Dr. Shulman’s testimony, the Michigan Court of
    Appeals recognized that “the exclusion of otherwise admissible evidence should be limited to the
    most egregious cases, in which other less severe remedies would fail to protect the parties’
    competing interests.” Ferensic, 
    2001 WL 865089
    , at *1 (quotation marks omitted). But the Court
    of Appeals never applied this proportionality-based proposition to the case before it. In fact, it
    disregarded any less severe remedies. The Court of Appeals reasoned that the “concededly severe
    sanction of exclusion of this expert testimony” was appropriate because it was harmless to Ferensic.
    
    Id. at *2.
           If harmlessness vis-à-vis the outcome were the test, however, courts would never have to
    consider whether “less severe remedies would . . . protect the parties’ competing interests.” The
    proportionality test of Rock instead measures the restrictions on a defendant’s right to present a
    defense against the “purposes they are designed to 
    serve.” 483 U.S. at 56
    . Nevertheless, the
    Michigan Court of Appeals applied a more typical outcome-based prejudice standard, noting that
    the exclusion “did not put the prosecution in a better position than it would have enjoyed had the
    order been complied with because defense counsel was otherwise able to effectively challenge
    inconsistencies in the victims’ identification testimony.” Ferensic, 
    2001 WL 865089
    , at *2.
    Moreover, even if a traditional prejudice-based standard were the proper test for analyzing
    a right-to-present-a-defense claim, the Court of Appeals’s conclusion is still unreasonable. The
    exclusion of Dr. Shulman’s testimony unquestionably “put the prosecution in a better position than
    it would have enjoyed had the order been complied with,” i.e., had Dr. Shulman actually testified.
    Dr. Shulman’s testimony was categorically different from what Ferensic’s father, the lone defense
    witness, offered to the jury. Ferensic’s father testified primarily to vouch for the presence of a large,
    easily observable scar on his son’s neck, which neither of the eyewitnesses had noticed. This
    testimony therefore provided the jury with a specific reason to distrust the eyewitnesses’
    identifications—in other words, an example of how those identifications were inconsistent and thus
    unreliable.
    Dr. Shulman’s testimony, in contrast, would have informed the jury of why the eyewitnesses’
    identifications were inherently unreliable. This would have been a scientific, professional
    perspective that no one else had offered to the jury. Compare Spisak v. Mitchell, 
    465 F.3d 684
    , 696,
    699 (6th Cir. 2006) (upholding under Rock the exclusion of multiple expert defense witnesses
    principally because “[t]heir testimony, however reliable their reputations, could not be taken to
    establish Defendant’s legal insanity under Ohio law,” and “in fact, . . . would likely have severely
    undercut such a defense”).
    To be sure, as the district court noted, Ferensic’s counsel argued to the jury on multiple
    occasions that eyewitness identifications were inherently unreliable. But the jury was explicitly
    instructed, as it always is, that arguments by counsel are not evidence. The district court was
    therefore correct in concluding that “[w]ithout [Dr. Shulman’s] testimony there was no evidence to
    support counsel’s argument.”
    As the Michigan Court of Appeals noted, the principal reasoning behind the trial court’s
    decision to exclude Dr. Shulman from testifying was that “the prosecution was unable to retain its
    own expert witness on identification without delaying the trial.” Ferensic, 
    2001 WL 865089
    , at *2.
    We acknowledge that the proper functioning of the adversary system is indeed a legitimate, and
    No. 06-2342           Ferensic v. Birkett                                                          Page 8
    nonarbitrary, consideration as a general matter. See 
    Taylor, 484 U.S. at 414-15
    (“The integrity of
    the adversary process . . . must also weigh in the balance.”). And “prejudice to the prosecution” is
    integral to that concern in a criminal case. See 
    Lucas, 500 U.S. at 152
    .
    But as the district court aptly remarked, in this specific case
    the prosecutor never said that he intended to present a witness to rebut the defense
    expert witness’ testimony, and he did not claim to be prejudiced by the tardy
    disclosure of Dr. Shulman’s report. He must have been aware of Dr. Shulman’s
    identity, because defense counsel submitted a list of his witnesses about ten months
    before trial.
    This latter fact distinguishes the present case from Taylor, where the Supreme Court upheld the
    exclusion of two defense witnesses whose very identity the defendant had failed to disclose in
    complete disregard of the prosecution’s pretrial discovery request. 
    Taylor, 484 U.S. at 404
    (emphasizing the trial judge’s concern about the possibility “that witnesses are being found that
    really weren’t there”).
    The unlikelihood that the prosecution would have called its own witness is further
    underscored by Dr. Shulman’s testimony at the evidentiary hearing that, during the more than 20
    times that he has testified as an expert on eyewitness identifications, not once has his testimony been
    “countered by an opposing expert.” In addition, the Warden’s attorney conceded at oral argument
    that nothing in the record indicates that the prosecution would have wanted to call its own “opposing
    expert.” Similarly, the attorney acknowledged that the only part of Dr. Shulman’s testimony that
    the prosecution might have wanted to oppose likely would have been handled through normal cross-
    examination.
    The state trial court in Ferensic’s case, however, never considered these particular
    circumstances. In fact, the court’s own words reveal its indifference to whether the prosecution was
    actually prejudiced. When Ferensic’s counsel reminded the court that the prosecutor had not given
    any indication of wanting to rebut Dr. Shulman’s testimony with a separate witness, the trial judge
    said “I’m not worried about that” and “I don’t care what he says.” The trial judge, in short, would
    have ruled against Ferensic regardless of whether the prosecution had actually wanted to retain its
    own expert on identification—that is, even if the prosecution had explicitly disavowed such a desire.
    Such disregard for the substantial rights of one party in the absence of any prejudice to the
    other raises an inference of arbitrariness. See Black’s Law Dictionary (8th ed. 2004) (defining an
    “arbitrary” judicial decision as one that is “founded on prejudice or preference rather than on reason
    or fact”). It is certainly proof of disproportionality, especially in light of the absence of harm to the
    prosecution, the lack of willfulness on the part of Ferensic’s counsel in violating the discovery order
    (he turned over Dr. Shulman’s report as soon as he received it 11 days before trial), and the lack of
    any delay caused by counsel’s misstep. Compare United States v. Nobles, 
    422 U.S. 225
    , 241 (1975)
    (holding, in a pre-Rock case, that the trial court’s preclusion of a defense investigator’s testimony
    was “an entirely proper method of assuring compliance with its order” where defense counsel had
    affirmatively refused to submit the investigator’s potentially conflicting report to the prosecution).
    Here, a less severe sanction was appropriate or, at the very least, should have been considered by
    the trial judge.
    In addition to these considerations, the very nonappearance of both Dr. Shulman and, later,
    St. John likely had an adverse effect on Ferensic. As the district court explained,
    [t]he problem was exacerbated by the trial court’s refusal to instruct the jury that the
    two defense witnesses in question were not permitted to testify. When defense
    counsel failed to present either witness as promised in his opening statement, the jury
    No. 06-2342            Ferensic v. Birkett                                                         Page 9
    might have concluded that the witnesses were unable or unwilling to testify as
    expected and that defense counsel could not live up to the claims that he made in his
    opening statement.
    The trial judge thus effectively inflicted double punishment on Ferensic: Not only would he be
    unable to present two critical witnesses in his defense—by itself a “severe sanction,” Ferensic, 
    2001 WL 865089
    , at *2—but the jury would likely hold that inability against him. These harms to
    Ferensic far outweighed the trial court’s ministerial, albeit legitimate, “need to manage its trial
    docket.”
    Nor can there be any doubt that Ferensic’s interest in having Dr. Shulman and St. John testify
    was “weighty.” See 
    Scheffer, 523 U.S. at 308
    (quotation marks omitted). As discussed in Part
    II.D.2. below, eyewitness misidentification accounts for more false convictions in the United States
    than any other factor. Similarly, the current near-universal acceptance of the reliability of expert
    testimony regarding eyewitness identification, also discussed in Part II.D.2. below, distinguishes the
    exclusion of Dr. Shulman in the present case from the exclusion upheld as proportionate by the most
    recent Supreme Court case to have applied Rock. See 
    id. at 309
    (upholding as constitutional a per
    se rule against the admission of polygraph evidence in court-martial proceedings, principally
    because “the scientific community remains extremely polarized about the reliability of polygraph
    techniques”).
    The dissent responds by arguing that Supreme Court precedent “indicate[s] that a ‘weighty
    interest of the accused’ . . . is limited to an interest in offering the accused’s own testimony, . . . or
    an interest in using the only available means of addressing a relevant issue.” Dissenting Op. at 18
    (citing 
    Rock, 483 U.S. at 58
    n.15, 
    Chambers, 410 U.S. at 300-02
    , and 
    Washington, 388 U.S. at 22
    ).
    But this summary erroneously assumes that Rock, Chambers, and Washington collectively constitute
    an exhaustive list of potentially “weighty interests.” Although the dissent is correct that Scheffer
    specifically cites these three cases in support of the proposition that Rock provides relief only where
    an exclusion has infringed on a weighty interest of the accused, Scheffer in no way suggests that
    other cases involving different interests could not also meet the de facto weighty-interest standard.
    The Warden’s related argument that unreasonably applying the Rock standard for AEDPA
    purposes is virtually impossible because “the considerations to be applied [in analyzing a right-to-
    present-a-defense claim] present the most general of legal rules” is similarly misplaced. We fail to
    understand, and the Warden fails to explain, how the admittedly fact-intensive disproportionality
    inquiry mandated by Rock requires state appellate courts to do anything more than what other
    “clearly established” Supreme Court precedents, such as the evidence-weighing prejudice inquiry
    mandated by Strickland, already require. See Wiggins v. Smith, 
    539 U.S. 510
    , 534 (2003) (“In
    assessing prejudice [under Strickland], we reweigh the evidence in aggravation against the totality
    of available mitigating evidence.”).
    Regarding the exclusion of St. John’s testimony, Ferensic faces a somewhat tougher task
    because that particular exclusion was simply the byproduct of the trial court’s denial of his motion
    for an adjournment. That determination, the validity of which is measured by a totality-of-the-
    circumstances test, is entitled to considerable deference. The Supreme Court explained the rationale
    behind this open-ended standard in Unger v. Sarafite, 
    376 U.S. 575
    , 589 (1964), as follows:
    The matter of continuance is traditionally within the discretion of the trial judge, and
    it is not every denial of request for more time that violates due process even if the
    party fails to offer evidence or is compelled to defend without counsel. . . .
    Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable
    request for delay can render the right to defend with counsel an empty formality. .
    . . There are no mechanical tests for deciding when a denial of a continuance is so
    No. 06-2342            Ferensic v. Birkett                                                      Page 10
    arbitrary as to violate due process. The answer must be found in the circumstances
    present in every case, particularly in the reasons presented to the trial judge at the
    time the request is denied.
    (Citations omitted.)
    Although the governing federal law relating to continuances is a broad, totality-of-the-
    circumstances standard, as opposed to a hard-and-fast bright-line rule, this again does not mean that
    its application cannot be unreasonable within the meaning of AEDPA. The state courts must at the
    very least consider the relevant circumstances. But neither the trial court nor the Michigan Court
    of Appeals even attempted to do so in the present case.
    Per the instructions of Ferensic’s counsel, St. John was due to arrive at the courthouse at
    11:00 a.m. on the morning in question. Ferensic’s father, the lone defense witness, concluded his
    testimony at 10:25 a.m., a mere 35 minutes earlier. The court then temporarily excused the jury.
    Although the court allowed Ferensic to make an offer of proof at that time regarding St. John’s
    anticipated testimony, it denied Ferensic’s motion for a brief adjournment to allow St. John to
    actually testify before the jury. The trial judge appeared to base her decision largely on the rationale
    that she had another trial scheduled to begin at 11:00 a.m. that same morning. Nevertheless, the
    court then formally recessed for a break at 10:30 a.m. and scheduled closing arguments to begin at
    10:57 a.m.
    Such a “myopic insistence upon expeditiousness in the face of a justifiable request for delay”
    is precisely what the Supreme Court forbids. See 
    Unger, 376 U.S. at 589
    . Even the Warden does
    not argue that Ferensic’s request for less than a 30-minute adjournment was unreasonable. Although
    St. John’s tardiness was entirely Ferensic’s fault, Ferensic was asking for the briefest of delays. St.
    John was scheduled to arrive a mere three minutes after the trial court had scheduled closing
    arguments to begin. Given the offer of proof that the court itself requested, moreover, it was fully
    aware that St. John’s testimony, even including cross-examination, would have been brief.
    Granting Ferensic’s motion would likely not have delayed the proceedings by more than half
    an hour. Even a longer delay would have been justifiable in light of the fact that, as Ferensic notes
    in his brief, “the trial judge had scheduled three days for trial, and the case was proceeding to closing
    argument in less than a day and a half.” The Michigan Court of Appeals never mentioned this fact,
    much less any of the other circumstances discussed above, in its opinion.
    Instead, the Court of Appeals rested its affirmance of the trial court’s judgment solely on a
    no-prejudice determination; namely, that St. John’s “testimony was not especially strong, . . . and
    inconsistency in the victims’ identification was otherwise shown.” Ferensic, 
    2001 WL 865089
    , at
    *2. Harmless error, however, is not the test mandated by the arbitrary-or-disproportionate inquiry
    of Rock, as noted above. And even if prejudice were material to the analysis, Ferensic was
    prejudiced by St. John’s failure to testify for the reasons already mentioned, as well as for those
    discussed below in the context of our independent harmless-error review. Indeed, the exclusion of
    St. John could in a certain sense be considered more prejudicial than the exclusion of Dr. Shulman
    because St. John, unlike Dr. Shulman, would have introduced defense-favorable “factual evidence”
    to the jury. See 
    Scheffer, 523 U.S. at 316-17
    (concluding that a per se rule excluding polygraph
    evidence did “not implicate any significant interest of the accused” because “the Rule did not
    preclude [the defendant] from introducing any factual evidence,” but “merely from introducing
    expert opinion testimony to bolster his own credibility”).
    In sum, Ferensic was denied his Sixth Amendment right to present a defense by the trial
    court’s exclusion of both Dr. Shulman and St. John as defense witnesses. The contrary
    determination of the Michigan Court of Appeals was unreasonable for the reasons stated above. But
    No. 06-2342           Ferensic v. Birkett                                                      Page 11
    before we can affirm the judgment of the district court conditionally granting Ferensic’s petition for
    a writ of habeas corpus on this ground, we must independently determine whether the state trial
    court’s constitutional error was harmless within the meaning of Brecht v. Abrahamson, 
    507 U.S. 619
    (1993). See Mitzel v. Tate, 
    267 F.3d 524
    , 534 (6th Cir. 2001) (“In applying the harmless error
    analysis on habeas review for cases governed by AEDPA, we apply the harmless error standard set
    out in Brecht.”).
    2.       Harmless-error review
    Brecht clarified that the harmless-error standard set forth in Kotteakos v. United States, 
    328 U.S. 750
    (1946), governs federal courts’ review of habeas corpus petitions based on constitutional
    “trial 
    error.” 507 U.S. at 637-38
    . Pursuant to Brecht, a constitutional error is not harmless if it “had
    substantial and injurious effect or influence in determining the jury’s 
    verdict.” 507 U.S. at 631
    (quoting 
    Kotteakos, 328 U.S. at 776
    ). Although Brecht further states that habeas petitioners “are
    not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual
    
    prejudice,’” 507 U.S. at 637
    (citation omitted), the Supreme Court in O’Neal v. McAninch, 
    513 U.S. 432
    , 438 (1995), clarified that this language “is not determinative,” and that petitioners do not bear
    an affirmative burden of proof as the language suggests. Instead, “it [is] conceptually clearer for the
    judge to ask directly, ‘Do I, the judge, think that the error substantially influenced the jury’s
    decision?’ than for the judge to try to the put the same question in terms of proof burdens (e.g., ‘Do
    I believe the party has borne its burden of showing . . . ?’).” 
    O’Neal, 513 U.S. at 436-37
    .
    Uncertainty in answering this question, moreover, militates in favor of the habeas petitioner.
    “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 determining the jury’s verdict,’ that error
    is not harmless. And, the petitioner must win.” 
    Id. at 436.
    The O’Neal Court explained that “[b]y
    ‘grave doubt’ we mean that, in the judge’s mind, the matter is so evenly balanced that he feels
    himself in virtual equipoise as to the harmlessness of the error.” 
    Id. at 435.
    An error of
    constitutional magnitude will therefore satisfy Brecht if we determine that it “had a substantial and
    injurious effect or influence in determining the jury’s verdict,” or if we find ourselves in “grave
    doubt” about that determination. See 
    Kotteakos, 328 U.S. at 765
    (“If [the error itself had substantial
    influence], or if one is left in grave doubt, the conviction cannot stand.”).
    In the present case, we are in “grave doubt” as to whether the exclusion of St. John and
    especially Dr. Shulman had “a substantial and injurious effect or influence” on the outcome of
    Ferensic’s trial. Regarding St. John, we agree with the Michigan Court of Appeals that his
    testimony was not “especially strong.” Even though his description of one of the two men that he
    observed outside of the Kostoffs’ home as having curly black hair was consistent with the Kostoffs’
    initial description, which they later denied at trial, St. John effectively conceded at the evidentiary
    hearing that his testimony was not alone sufficient to establish Ferensic’s innocence. He admitted
    that his observation of the men was actually “[j]ust a glance” that he caught while driving past the
    Kostoffs’ home and, accordingly, that he was “not able to provide a full description of either one
    of these individuals.” On its own, therefore, the trial court’s exclusion of St. John is not sufficient
    to satisfy the “substantial and injurious” standard of Brecht, even though Ferensic was prejudiced
    to at least some degree by St. John’s failure to testify. Our decision to affirm the grant of Ferensic’s
    habeas petition instead rests on the combined effect of the trial court’s exclusion of both St. John
    and Dr. Shulman, with particular emphasis on Dr. Shulman.
    Regarding Dr. Shulman, we add the following analysis to our foregoing discussion of his
    value to Ferensic. We agree with the district court that “other means” of attacking eyewitness
    identifications do not effectively substitute for expert testimony on their inherent unreliability. This
    court’s decision in United States v. Smithers, 
    212 F.3d 306
    (6th Cir. 2000), provides direct support
    for the district court’s conclusion that the typical methods of “challeng[ing] inconsistencies” in the
    No. 06-2342            Ferensic v. Birkett                                                        Page 12
    eyewitnesses’ testimony “were not an effective substitute” for what Dr. Shulman would have
    offered. In Smithers, the majority thoroughly rejected the dissent’s contrary argument as follows:
    The Dissent counters by arguing that eyewitness identification experts are not
    necessary because cross-examination and jury instructions should be tools used in
    a trial to discredit and flush-out eyewitness testimony. Unfortunately, the Dissent’s
    homage to trial procedures does not extend to expert witness testimony. The same
    argument can be made for the admission of expert testimony: cross-examination and
    jury instructions can be used to question the qualifications of the proffered expert,
    undermine the basis of the expert’s theories, explain the limits of social science’s
    validation studies and pick apart research methods. The only reason given by the
    Dissent for why cross-examination and jury instructions can serve these goals for
    eyewitness testimony, but not for expert testimony, is that the jury may take the
    expert’s testimony as “scientifically irrefutable truth.” The Dissent’s selective faith
    in the collective intelligence, common sense and decision-making ability of the jury
    is disheartening, and is also inconsistent with the Dissent’s deference to the jury on
    other matters, including judging the credibility of eyewitness 
    identifications. 212 F.3d at 316
    .
    The Smithers court also recognized that expert testimony on eyewitness identifications, once
    thought to be unreliable and overly prejudicial to the prosecution, is now universally recognized as
    scientifically valid and of “aid [to] the trier of fact” for admissibility purposes. 
    Id. at 315
    (discussing
    expert testimony on eyewitness identifications in the context of the now-prevailing Daubert test for
    the admissibility of expert testimony in the federal courts). As the court explained,
    jurors tend to be unduly receptive to, rather than skeptical of, eyewitness testimony.
    Further, accepting the district court’s analysis that all jurors are aware of their
    obligation to be skeptical would lead to absurd results: expert testimony on
    eyewitness identification would never be admissible. As demonstrated by abundant
    case law, this is not the conclusion that has been reached by courts addressing this
    issue. Today, there is no question that many aspects of perception and memory are
    not within the common experience of most jurors, and in fact, many facts that affect
    memory are counter-intuitive.
    
    Id. at 315
    -16 (emphasis in original). Nor was there any dispute regarding the admissibility of Dr.
    Shulman’s expert testimony in the present case. Rather, the trial court excluded his testimony
    simply because Ferensic had failed to comply with a pretrial discovery order.
    The significance of Dr. Shulman’s testimony cannot be overstated. Without it, the jury had
    no basis beyond defense counsel’s word to suspect the inherent unreliability of the Kostoffs’
    identifications. The Supreme Court has long recognized this obliviousness as inimical to our system
    of criminal justice. See, e.g., Watkins v. Sowders, 
    449 U.S. 341
    , 352 (1981) (“[D]espite its inherent
    unreliability, much eyewitness identification evidence has a powerful impact on juries. Juries seem
    most receptive to, and not inclined to discredit, testimony of a witness who states that he saw the
    defendant commit the crime.”). Indeed, eyewitness misidentification is “the single most important
    factor leading to wrongful convictions in the United States.” United States v. Brownlee, 
    454 F.3d 131
    , 141 (3d Cir. 2006) (quoting C. Ronald Huff et al., Guilty Until Proven Innocent: Wrongful
    Conviction and Public Policy, 32 Crime & Delinq. 518, 524 (1986)); see also Chris Conway, The
    DNA 200, N.Y. Times, May 20, 2007, § 4, at 14 (reporting on the first 200 U.S. inmates formally
    cleared on the strength of DNA evidence, and noting that “three-quarters [of the initial convictions]
    were marked by inaccurate eyewitness identification,” a greater percentage than that attributable to
    any other factor). This statistic alone strongly supports the conclusion that excluding Dr. Shulman’s
    No. 06-2342           Ferensic v. Birkett                                                       Page 13
    testimony “had a substantial and injurious effect” on Ferensic. 
    Brecht, 507 U.S. at 631
    . The identity
    of the perpetrator, after all, was the only issue at trial.
    It was, moreover, a very close issue. We acknowledge that, as the Michigan Court of
    Appeals concluded, “standing alone, the testimony of the officer who recognized defendant from
    the sketch artist’s rendering would arguably have been sufficient to convict.” Ferensic, 
    2001 WL 865089
    , at *2. But Kotteakos prohibits us from simply focusing on the sufficiency of the evidence,
    especially where it entails “stripping the erroneous action from the whole” and determining the
    sufficiency of what is left “standing 
    alone.” 328 U.S. at 765
    . We must instead “ponder[] all that
    happened.” 
    Id. This wider
    lens is what leaves us with “grave doubt.” See 
    id. In “pondering
    all that happened” in the present case, we are particularly persuaded by the
    district court’s finding that “the record indicates that the jurors were unable to agree on a verdict at
    one point during their deliberations.” More specifically, the jury sent a note to the trial judge stating
    that “[w]e would like to see the police report,” and asked “[w]hat are our options if we don’t totally
    agree on a verdict?” The “police report,” of course, contained the police sketch as part of Ferensic’s
    larger file. Thus the jury’s own words imply not only that it had doubts about the strength of the
    case against Ferensic, but also that those doubts related at least in part to the contents of his police
    file.
    Although the jury did not explicitly question the “sufficiency” of the sketch-based
    identification vis-à-vis Ferensic’s guilt, its note, especially when considered in the context of the
    erroneously excluded testimony from Dr. Shulman and St. John, precludes us from saying “with fair
    assurance . . . that the judgment was not substantially swayed by the error.” See 
    Kotteakos, 328 U.S. at 765
    ; see also Fry v. Pliler, 
    127 S. Ct. 2321
    , 2330 (2007) (Stevens, J., dissenting) (citing six
    federal appellate-court decisions, including Powell v. Collins, 
    332 F.3d 376
    , 401 (6th Cir. 2003), for
    the proposition that “jurors’ evident uncertainty” as to a defendant’s guilt makes a finding of
    prejudicial error in a right-to-present-a-defense case almost impossible to effectively dispute).
    We wish to emphasize just how significant the jury’s note is to our analysis, because it
    distinguishes the present case from many others in which the erroneous exclusion of an expert
    witness on eyewitness identification might well be harmless. For example, we recognize that this
    court has held on at least two occasions that the failure of counsel to hire an expert in eyewitness
    identification did not prejudice the defendant in a criminal trial. See Dorch v. Smith, 105 F. App’x
    650, 653 (6th Cir. 2004) (upholding as reasonable the Michigan Court of Appeals’s conclusion that
    defense counsel’s failure to call an expert witness on eyewitness identification did not satisfy
    Strickland v. Washington, 
    466 U.S. 668
    (1984), because counsel “presented several witnesses who
    testified as to [the habeas petitioner’s] whereabouts on the weekend of the incident” and cross-
    examined the eyewitness regarding inconsistencies in his identification of the petitioner); Tipton v.
    United States, No. 96-5026, 
    1996 WL 549802
    , at *1-2 (6th Cir. Sept. 26, 1996) (holding that “any
    allegedly ineffective assistance” caused by counsel’s failure to “hir[e] an expert in eyewitness
    identification” did not prejudice the petitioner within the meaning of Strickland).
    Although the failure to retain an expert as an initial matter presents a somewhat different
    problem than the exclusion of an already retained expert, we recognize the tension that our holding
    today might appear to generate with Dorch, Tipton, and similar cases. We therefore limit our
    holding to the situation here where the record reflects the doubts of the jury itself as to the
    identification of the perpetrator. Our analysis, in other words, should not be read to imply that the
    exclusion of an eyewitness-identification expert in a state-court criminal trial—even if “arbitrary”
    or “disproportionate” within the meaning of Rock—will always warrant relief on federal habeas
    corpus review.
    No. 06-2342        Ferensic v. Birkett                                                 Page 14
    III. CONCLUSION
    For all of the reasons set forth above, we AFFIRM the judgment of the district court.
    No. 06-2342           Ferensic v. Birkett                                                     Page 15
    ________________
    DISSENT
    ________________
    McKEAGUE, Circuit Judge, dissenting. I would hold that the rejection by the Michigan
    Court of Appeals of Ferensic’s claims of error as to the testimony of witnesses Shulman and St. John
    was neither contrary to nor an unreasonable application of federal law. I would therefore reverse
    the district court’s grant of the writ of habeas corpus.
    I. RIGHT TO PRESENT A DEFENSE
    As the majority notes, in Taylor v. Illinois, the Supreme Court recognized that the Sixth
    Amendment affords a defendant the right “to compel a witness’[s] presence in the courtroom” and
    “to offer 
    testimony.” 484 U.S. at 409
    . However, the right is not absolute; “[t]he accused does not
    have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible
    under standard rules of evidence. The Compulsory Process Clause provides him with an effective
    weapon, but it is a weapon that cannot be used irresponsibly.” 
    Id. at 410.
    As the Court further
    explained in United States v. Scheffer,
    state and federal rulemakers have broad latitude under the Constitution to establish
    rules excluding evidence from criminal trials. Such rules do not abridge an
    accused’s right to present a defense so long as they are not “arbitrary” or
    “disproportionate to the purposes they are designed to serve.” Moreover, we have
    found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate
    only where it has infringed upon a weighty interest of the 
    accused. 523 U.S. at 308
    (quoting 
    Rock, 483 U.S. at 56
    ).
    A. Dr. Shulman
    In considering Ferensic’s claim that the exclusion of Shulman’s testimony violated his right
    to present a defense, the Michigan Court of Appeals applied the following standard:
    When fashioning a remedy for noncompliance with a discovery order, a trial
    court must first determine whether the objecting party’s interest in preparing its own
    case or its opportunity to test the authenticity of its opponent’s evidence has been
    prejudiced by the noncompliance, and then, if that be the case, must consider what
    remedy may be appropriate, giving due regard to the competing interests of the
    opposing party, the court and the public. The trial court must also inquire into all the
    relevant circumstances, including the reasons behind noncompliance and whether the
    objecting party was actually prejudiced. Finally, the remedy for noncompliance
    should not put the objecting party in a better position than the party would have
    enjoyed if the discovery order had been complied with. Thus, the exclusion of
    otherwise admissible evidence should be limited to the “most egregious cases,” in
    which other less severe remedies would fail to protect the parties’ competing
    interests.
    
    2001 WL 865089
    , at *1 (citations omitted) (citing People v. Davie (After Remand), 
    571 N.W.2d 229
    ,
    231-32 (Mich. Ct. App. 1997); People v. Taylor, 
    406 N.W.2d 859
    , 868-69 (Mich. Ct. App. 1987)).
    As stated above, the Supreme Court analyzes the exclusion of defense evidence pursuant to
    evidentiary rules to determine whether the rules are “‘arbitrary’ or ‘disproportionate to the purposes
    they are designed to serve,’” and to determine whether “the exclusion of evidence . . . has infringed
    upon a weighty interest of the accused.” 
    Scheffer, 523 U.S. at 308
    .
    No. 06-2342                Ferensic v. Birkett                                                                   Page 16
    The majority concludes principally that the Michigan Court of Appeals unreasonably applied
    established law, but also asserts, as to the exclusion of St. John’s testimony, that prejudice is not “the
    proper test for analyzing a right-to-present-a-defense claim.”1 Opinion at 7. However, the Michigan
    Court of Appeals did not perform a prejudice analysis in evaluating Ferensic’s challenge to the
    exclusion of Shulman’s testimony. Rather, the court held that “the ruling did not put the prosecution
    in a better position than it would have enjoyed had the order been complied with because defense
    counsel was otherwise able to effectively challenge inconsistencies in the victims’ identification
    testimony.” 
    2001 WL 865089
    , at *2. This is merely an application of the Michigan rule, quoted
    above, that “the remedy for noncompliance should not put the objecting party in a better position
    than the party would have enjoyed if the discovery order had been complied with.” This rule seems
    to be a fair rendition of the first Scheffer principle that evidentiary rules must not be
    “disproportionate to the purposes they are designed to serve.” The Michigan rule that a decision to
    exclude evidence “must consider what remedy may be appropriate, giving due regard to the
    competing interests of the opposing party, the court and the public” would seem to encompass the
    other portion of the federal rule, namely, that exclusion not be “arbitrary.”
    The majority also concludes that the trial court’s exclusion of Shulman’s testimony was
    arbitrary and disproportionate to the discovery violation, and that the Michigan Court of Appeals
    unreasonably applied federal law in holding to the contrary. The trial court excluded Shulman’s
    testimony in response to an oral motion by the prosecution on the first day of trial, June 28, 1999.
    The prosecution had originally moved to exclude this evidence in a pretrial motion which the trial
    court denied on December 18, 1998; the court ordered instead that Shulman would be permitted to
    testify if the defense provided the prosecution with Shulman’s report two months before trial. In
    the brief hearing on the prosecution’s later motion to exclude Shulman’s evidence, the trial court
    ruled,
    It doesn’t make a difference [that defense counsel sent the report to the prosecution
    the day he received it]. It was your responsibility. If you’re going to call somebody,
    and you’re under a court order to get the report to the prosecution two months before
    trial, especially when I ordered it back in December, you were supposed to make that
    person get you the report. If not, you should have come into court and said, “Judge,
    we need more time so that I can get the report to the prosecution.” You will not be
    able to use it.
    Tr. of June 28, 1999, at 193.
    In view of the significant time in which the defense could have complied with the court
    order, the exclusion of Shulman does not appear to be arbitrary, nor disproportionate to the purpose
    for which the original order was made. As the trial court explained when the defense sought
    reconsideration of the decision at the close of testimony on the first day of trial, “I ordered you to
    give it to him two months ahead of time so that he could get his own expert. I wanted to have
    enough time for the prosecution to be prepared to try this case without having to have an
    adjournment.” 
    Id. at 307-08.
    This is precisely the reason the Supreme Court recognized in Taylor
    v. Illinois as an appropriate reason to exclude defense evidence:
    1
    Presumably, this assertion, like the contention that the Michigan Court of Appeals applied the wrong standard
    in examining the exclusion of St. John’s testimony, is directed toward the requirement that habeas relief not be granted
    unless the state court decision is “contrary to . . . clearly established federal law.” 28 U.S.C. § 2254(d)(1). However,
    the Supreme Court has explained that a state court decision is “contrary to” federal law only 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.” Williams v. 
    Taylor, 529 U.S. at 413
    (O’Connor, J.,
    delivering the opinion of the Court as to this part). The majority does not assert that the Supreme Court has concluded
    that a prejudice analysis is not appropriate in a right-to-present-a-defense case, nor that the Supreme Court has ever been
    presented with facts materially indistinguishable from those here.
    No. 06-2342           Ferensic v. Birkett                                                     Page 17
    The adversary process could not function effectively without adherence to rules of
    procedure that govern the orderly presentation of facts and arguments to provide
    each party with a fair opportunity to assemble and submit evidence to contradict or
    explain the opponent’s case. The trial process would be a shambles if either party
    had an absolute right to control the time and content of his witnesses’ 
    testimony. 484 U.S. at 410-11
    (emphasis added).
    As the majority points out, unlike Taylor, this case does not involve a defendant who
    announces the existence of witnesses only after the trial has begun. See 
    id. at 403.
    In this case, the
    trial court gave its order regarding Shulman’s testimony more than six months before trial, and
    Shulman was not a witness belatedly discovered by the defense. According to Shulman’s testimony
    before the district court, defense counsel had actually retained him as an expert witness in 1998, and
    Shulman had initially been prepared for a trial date of September 22, 1998; the trial was
    subsequently postponed. Shulman’s testimony that in his discussions with Ferensic’s counsel after
    that date counsel made a “request for an updated report or a revised report” indicates that Shulman
    had already provided a report by September of 1998, which apparently Ferensic desired Shulman
    to modify in some fashion. Ferensic thus should have had no difficulty in complying with the
    discovery order.
    Moreover, as the trial court pointed out, the December order gave Ferensic four months to
    provide the prosecution with the required report, and he could have asked the court for an extension
    if this for some reason proved impossible to do. The trial court could, of course, have permitted a
    mid-trial adjournment in which the prosecution could obtain its own expert witness. However, the
    avoidance of such an adjournment was precisely the reason the trial court ordered that defendant
    provide Shulman’s report two months before trial. As the Supreme Court noted in Taylor, “a less
    drastic sanction is always 
    available.” 484 U.S. at 413
    . However, that does not mean that a less
    drastic sanction must always be used. Given the situation, the exclusion of Shulman’s testimony
    was not arbitrary, and not disproportionate to the purpose the order was designed to accomplish,
    which was that it would not be necessary to adjourn the trial in order for the prosecution to respond
    to Shulman’s evidence. The Michigan Court of Appeals’s conclusion that the exclusion of Shulman
    was “nothing more than the court had warned of six months before trial,” 
    2001 WL 865089
    , at *2,
    was reasonable, and a reasonable application of the standard governing the exclusion of defense
    evidence.
    The majority also argues that the apparent purpose of the trial court’s order, namely, ensuring
    that the prosecution have an opportunity to secure its own witness, was not a genuine one; that is,
    that the trial court was “indifferen[t] to whether the prosecution was actually prejudiced,” and
    excluded Shulman’s testimony without regard to whether the prosecution actually desired to secure
    its own eyewitness identification expert. Opinion at 8. However, this also does not present the full
    picture of the proceedings before the trial court. The trial court explained,
    [O]ne of the things I’ve got to do is I’ve got to make sure that whatever you get
    ready to put in evidence, the other side has had the opportunity to prepare to do
    something about it. If not, I have to stop in the middle of the trial and give them
    time. Now, you know I’m not going to do that in this case, don’t you? You know
    I’m not going to let you put in your expert, and then adjourn this case for two months
    to let the prosecutor go running around trying to find another expert that will testify
    differently. You know that’s not going to happen, don’t you?
    Tr. of June 28, 1999, at 308-09. Defense counsel responded, “Well, I’ve never had any indication
    from [the prosecutor] that he wants to hire an expert to contradict our expert.” 
    Id. at 309.
    The trial
    court replied, “I don’t care what he – what I’m trying to do is I’m making sure – when I gave the
    No. 06-2342            Ferensic v. Birkett                                                        Page 18
    order, the reason for the two months was so I would not run into this problem, and you didn’t follow
    the order. I’m sorry.” 
    Id. While the
    trial court certainly indicated its indifference to defense counsel’s statements
    regarding whether the prosecutor had ever indicated an interest in securing an opposing expert, this
    does not entail indifference to the effect of its ruling on the prosecution. The court clearly was
    concerned that it might “have to stop in the middle of trial and give [the prosecution] time,” and was
    enforcing its order “so I would not run into this problem.” 
    Id. at 308,
    309. The fact that the
    prosecutor had not then represented to defense counsel that he intended to secure an opposing expert
    does not mean that the need to do so might not later appear “in the middle of trial,” necessitating the
    adjournment which the court’s order had carefully avoided.
    In addition, the Supreme Court in Scheffer held that “we have found the exclusion of
    evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a
    weighty interest of the 
    accused.” 523 U.S. at 308
    . Supreme Court precedent, including the three
    cases Scheffer specifically cites in support of this proposition, indicate that a “weighty interest of
    the accused” does not include any interest in offering evidence, but is limited to an interest in
    offering the accused’s own testimony, 
    Rock, 483 U.S. at 58
    n.15, or an interest in using the only
    available means of addressing a relevant issue, see, e.g., Chambers v. Mississippi, 
    410 U.S. 284
    ,
    300-02 (1973) (defendant forbidden to offer evidence that another person had confessed on several
    different occasions to the crime of which he stood accused); Washington v. Texas, 
    388 U.S. 14
    , 22
    (1967) (defendant forbidden to offer exculpatory testimony from a witness because the witness was
    an accomplice in the crime and had not been acquitted). The majority responds that the list of
    “weighty interests” is not so limited. Even assuming these Supreme Court decisions do not
    constitute an exhaustive list of “weighty interests” and different interests could meet the weighty-
    interest standard in the future, it cannot be said that any other interests are clearly established federal
    law as required under AEDPA.
    The Michigan Court of Appeals correctly noted that in this case, the exclusion of Shulman’s
    testimony did not prevent Ferensic from addressing the issue of flaws in eyewitness identifications;
    “defense counsel was otherwise able to effectively challenge inconsistencies in the victims’
    identification testimony” through cross-examination of the victims. 
    2001 WL 865089
    , at *2.
    Habeas relief stemming from the exclusion of Shulman’s testimony is thus also inappropriate
    because the exclusion did not infringe on a “weighty interest of the accused.”
    B. Danny St. John
    The Michigan Court of Appeals analyzed Ferensic’s claim regarding the trial court’s failure
    to grant an adjournment to permit the appearance of St. John under the following standard:
    In determining whether a trial court abused its discretion in denying a motion for an
    adjournment, this Court should consider “whether defendant (1) asserted a
    constitutional right, (2) had a legitimate reason for asserting the right, (3) had been
    negligent, and (4) had requested previous adjournments.” Defendant must also show
    that he was prejudiced by the denial of the adjournment. The witness in question
    would have testified to some differences in identification of the offenders and the
    vehicle they were driving. The purported testimony was not especially strong,
    however, and inconsistency inherent in the victims’ identification was otherwise
    shown. Accordingly, defendant has failed to satisfy the requirement that he show
    prejudice.
    
    2001 WL 865089
    , at *2 (citations omitted) (quoting People v. Lawton, 
    492 N.W.2d 810
    , 814
    (1992)).
    No. 06-2342           Ferensic v. Birkett                                                     Page 19
    The majority primarily criticizes the Michigan Court of Appeals’s decision to affirm on the
    basis that it unreasonably applied clearly established federal law. However, the majority also asserts
    that the Michigan Court of Appeals applied harmless error analysis in disposing of the argument,
    and implies that since Scheffer requires inquiry into whether evidentiary rules are arbitrary or
    disproportionate to the purposes they are designed to serve, the Michigan Court of Appeals analysis
    is contrary to clearly established federal law. See Opinion at 11-13. This is not true. As the
    Supreme Court has explained, avoiding contrariness to federal law “does not require citation of our
    cases – indeed, it does not even require awareness of our cases, so long as neither the reasoning nor
    the result of the state-court decision contradicts them.” Early v. Packer, 
    537 U.S. 3
    , 8 (2002). The
    majority points to no Supreme Court case forbidding the application of harmless error analysis.
    The majority also concludes that the Michigan Court of Appeals unreasonably applied
    federal law to Ferensic’s claim regarding the exclusion of St. John’s testimony. The Court of
    Appeals relied on defense counsel’s proffer of evidence at trial to determine that St. John’s
    testimony “was not especially strong,” and therefore that “defendant has failed to satisfy the
    requirement that he show prejudice.” 
    2001 WL 865089
    , at *2. This evaluation of the proffered
    evidence is confirmed by St. John’s testimony at the evidentiary hearing before the district court
    below. St. John testified that he was “laying carpet” in one of the homes on the victims’ street, and
    his attention was drawn to a truck because “the truck that was parked in front of the [victims’] house,
    my neighbor’s got one exactly like it.” Tr. of June 19, 2006, at 6. He saw two men standing outside
    the truck; both men were white, and “[o]ne looked like he was probably in his early forties.” 
    Id. at 7-8,
    13. He confirmed that he was “not able to provide a full description of either one of these
    individuals.” 
    Id. at 8.
    On cross-examination by the government, he clarified that he “wasn’t
    actually parked in the driveway outside” when he saw the men and the truck; he was driving and
    “passed it on the street,” and he got “[j]ust a glance” at the two men. 
    Id. at 12-13.
    St. John also
    answered “No, sir” to the district court’s question, “Never saw him before?” referring to the
    defendant sitting in court at the evidentiary hearing. 
    Id. at 13.
            The import of St. John’s testimony was thus that he got very little chance to look at either
    of the two men and could not describe them. In view of this evidence, it is not clear that St. John’s
    testimony at the trial would have had any probative value at all, let alone sufficient probative value
    to outweigh the considerations of delay attendant upon granting an adjournment. The district court
    below concluded that “Mr. St. John also would have helped the defense, because his description of
    a suspect with curly black hair matched the description that the Kostoffs gave the police. At trial,
    the Kostoffs denied telling the police that Petitioner had curly black hair.” Ferensic v. Birkett, 
    451 F. Supp. 2d 874
    , 883 (E.D. Mich. 2006). It is true that at trial, the Kostoffs denied describing the
    robber as having curly black hair. However, St. John’s testimony at the evidentiary hearing does
    not include such a description of either man. Perhaps more tellingly, Ferensic’s counsel never even
    asked whether St. John would describe either man in this way, or what color hair either had. The
    only suggestion that St. John would have so testified was counsel’s proffer at trial.
    Even supposing that St. John would have testified that one of the men had black curly hair,
    and that counsel below simply forgot to ask him about this description, that testimony would at most
    have contradicted Mr. Kostoff’s testimony that he never described one of the robbers as having
    black, curly hair. However, the fact that the Kostoffs initially described one of the robbers as having
    black, curly hair appears in the police report, which was used for impeachment at trial. This would
    seem to be a considerably stronger refutation of their testimony that they did not describe the robber
    that way than would St. John’s testimony that one of the robbers had black, curly hair. Moreover,
    Ferensic does not contend that St. John’s testimony would actually have indicated that neither robber
    resembled him, or otherwise tended to exonerate him. The conclusion of the Michigan Court of
    Appeals that St. John’s testimony “was not especially strong” is supported by the record.
    No. 06-2342               Ferensic v. Birkett                                                                  Page 20
    The majority’s assertion that, on the other hand, Ferensic “was asking for the briefest of
    delays” in order to present St. John’s testimony does not tell the whole story. It is true that Ferensic
    finished his evidence at 10:25AM and trial counsel stated that St. John was due to arrive at the
    courthouse at 11:00AM. However, the trial court also noted for the record that “we were supposed
    to start at 9:00 this morning. Your witness was not here. I told you to put on your next witness.
    He’s not here.” Tr. of June 29, 1999, at 73-74. Two of the scheduled defense witnesses were thus
    not present when proceedings began for the day, even though defense counsel knew that there was
    an outstanding question as to permissible impeachment testimony which would determine whether
    or not Ferensic himself elected to testify. In fairness, Ferensic did have one witness available to
    testify that morning, but that witness was Ferensic’s father, who likely was in attendance throughout
    the trial.
    In its full context, the trial court’s refusal to grant an adjournment until 11:00 when St. John
    was expected to arrive does not appear the “‘myopic insistence upon expeditiousness in the face of
    a justifiable request for delay’” that the majority terms it. On the contrary, in view of the absence
    of multiple witnesses from the beginning of proceedings that morning and the very limited
    helpfulness of St. John’s testimony, even assuming it would have been consistent with the proffer,
    the district court’s denial of a continuance was not arbitrary or disproportionate to the interest it was
    designed to serve, and the Michigan Court of Appeals did not unreasonably apply established law
    in affirming Ferensic’s conviction on that basis.
    Because the Michigan Court of Appeals decision did not unreasonably apply clearly
    established federal law, I believe that the district court was not authorized to grant a writ of habeas
    corpus. See 
    Taylor, 288 F.3d at 850
    . A harmless error review, including the cumulative prejudice
    analysis of the majority, is therefore unnecessary. See Penry v. Johnson, 
    532 U.S. 782
    , 795 ( 2001)
    (“Even if our precedent were to establish squarely that the prosecution’s use of the Peebles report
    violated Penry’s Fifth Amendment privilege against self-incrimination, that error would justify
    overturning Penry’s sentence only if Penry could establish that the error ‘had substantial and
    injurious effect or influence in determining the jury’s verdict.’”) (emphasis added) (quoting 
    Brecht, 507 U.S. at 637
    ); see also Fulcher v. Motley, 
    444 F.3d 791
    , 808-09 (6th Cir. 2006) (performing
    harmless error review only after finding that habeas relief was otherwise warranted); Biros v.
    Bagley, 
    422 F.3d 379
    , 388 (6th Cir. 2005) (same); Stapleton v. Wolfe, 
    288 F.3d 863
    , 867 (6th Cir.
    2002) (same).2
    II. INEFFECTIVE ASSISTANCE OF COUNSEL
    Although the majority does not reach the issue, because I would hold that Ferensic is not
    entitled to habeas relief on the basis of his right to present a defense argument, I will briefly address
    his second issue, ineffective assistance of counsel. See McCalvin v. Yukins, 
    444 F.3d 713
    , 724 (6th
    Cir. 2006) (Cole, J., dissenting) (addressing in dissent a secondary argument for habeas relief not
    reached by the majority). The standard for determining whether a defendant has received ineffective
    assistance was set forth by the Supreme Court in Strickland v. Washington. Under that standard, a
    defendant claiming ineffective assistance must show both “that counsel’s representation fell below
    an objective standard of reasonableness” and that “there is a reasonable probability that, but for
    2
    In Eddleman v. McKee, 
    471 F.3d 576
    , 583 n.3 (6th Cir. 2006), this court recently held that “the Brecht standard
    continues to apply when federal courts must make a harmless-error determination in the first instance, as when a state
    court found no error and therefore did not address whether an error would be harmless.” However, Eddleman cites for
    this proposition only cases, including Penry, Fulcher, Biros, and Stapleton, that either have performed a harmless error
    analysis after finding a constitutional error, or that have held any error to be harmless and not reached the question of
    whether constitutional error occurred. Thus, the rule enunciated in Eddleman apparently means that, regardless of
    whether the state court performed a harmless error analysis, Brecht applies where the federal court on habeas review has
    found constitutional error, but not where it has found none.
    No. 06-2342           Ferensic v. Birkett                                                     Page 21
    counsel’s unprofessional errors, the result of the proceeding would have been 
    different.” 466 U.S. at 688
    , 694. Though the Michigan Court of Appeals did not cite Strickland by name, it analyzed
    whether “counsel’s failure to secure the testimony of these two witnesses was objectively
    unreasonable” and whether “absent this deficient performance the outcome of his trial would have
    been different.” 
    2001 WL 865089
    , at *2. This clearly is the correct standard.
    The Michigan Court of Appeals determined that counsel’s actions were objectively
    unreasonable, but that Ferensic did not meet the prejudice prong. 
    Id. With regard
    to St. John’s
    testimony, this seems difficult to dispute. According to his testimony at the evidentiary hearing, he
    could have testified at trial only that the two men were white, one was in his mid-forties, and he
    could further describe neither of them. The helpfulness of this testimony to Ferensic is at best
    negligible; it could fairly be argued that by confirming the presence of two white men near a black
    truck in front of the victims’ home, the victims’ testimony was corroborated. The fact that Ferensic
    was considerably younger than forty does not make St. John’s testimony exculpatory, since he had
    no idea of the age of the second man. Even if St. John had been prepared to testify that one of the
    men had black, curly hair, it is hard to see that there is a reasonable probability that with this
    testimony, the outcome of the trial would have been different. St. John would have described one
    of the robbers as having black, curly hair; the victims would have denied that they ever described
    either of the robbers in this way; and no witness would have described the second man in a manner
    inconsistent with Ferensic’s appearance. This is not sufficient to show prejudice under Strickland.
    With regard to Shulman’s testimony, the prejudice question is perhaps closer. Certainly, as
    the majority notes, expert testimony on eyewitness identifications is now widely admissible in court.
    However, Michigan courts have held that an eyewitness identification expert is not constitutionally
    required. People v. Cooper, 
    601 N.W.2d 409
    , 418 (Mich. Ct. App. 1999) (holding that the decision
    not to call an identification expert is not objectively unreasonable). The Sixth Circuit in unpublished
    decisions has also held that counsel’s failure to offer an identification expert is not ineffective
    assistance. Dorch, 105 F. App’x at 656-657 (approving state appellate court decision that habeas
    petitioner “could not satisfy these two [Strickland] elements” given that trial counsel “‘presented
    several witnesses who testified as to [the petitioner’s] whereabouts on the weekend of the incident’”
    and cross-examined the identifying witness); Tipton, 
    1996 WL 549802
    , at *1, 2 (holding that a
    federally convicted habeas petitioner “was not prejudiced by any allegedly ineffective assistance
    provided by his counsel” although counsel did “not hir[e] an expert in eyewitness identification”).
    Moreover, the government showed during the evidentiary hearing that Shulman’s evidence
    undermining the victims’ testimony would be equivocal at best. Shulman conceded that if one
    witness identified a suspect from a lineup and the other failed to do so, that would be “a sign of
    independence” of their memories, indicating that their visual memory was not contaminated by
    “collaboration” regarding what the robber looked like. Tr. of June 19, 2006, at 47-48. He conceded
    that if the robber did not brandish a weapon when Mr. Kostoff first saw him, “there’s no weapons
    focus for that period of time, and that gives that witness a better opportunity to focus on the face of
    the person.” 
    Id. at 48.
    He also conceded that if the interaction between the witness and the robber
    took place over a forty-five minute period and involved several encounters, not just an initial
    meeting at the door, the witness’s memory would be more accurate. He conceded that a witness’s
    initial verbal description of a suspect to a police officer would not be influenced by his later
    memories of seeing the suspect in a lineup or a photo array, and would therefore be relatively
    reliable. Thus, Shulman conceded that many if not most of the factors that he described as limiting
    a witness’s ability to identify a stranger accurately did not apply under the circumstances in this
    case.
    Finally, trial counsel did thoroughly cross-examine the victims regarding their identification
    of Ferensic, as well as questioning the police witnesses about the composite sketch, photo array, and
    lineup, and offered the testimony of Ferensic’s father regarding scars on Ferensic’s face, which the
    No. 06-2342            Ferensic v. Birkett                                                         Page 22
    victims did not remember. Given that Shulman’s testimony would have suggested at most slight
    potential weaknesses in the victims’ identification of Ferensic, and that defense counsel thoroughly
    argued the issue of identification, it does not appear reasonably probable that Shulman’s testimony
    would have altered the outcome of the trial.
    I do not agree with the majority that the note the jury sent out during deliberations asking
    to see the police report indicates that the jury “had doubts about the strength of the case against
    Ferensic.” Opinion at 13. Although, as the majority observes, the police report contained the artist’s
    sketch, it contained other information as well, and the record contains no indication that the jury was
    interested in the sketch particularly. In any case, the trial court refused to provide the jury with the
    report, as it had not been entered into evidence, and after further deliberations, the jury found
    Ferensic guilty.
    The finding of the district court below that “the record indicates that the jurors were unable
    to agree on a verdict at one point during their deliberations” is not helpful to a prejudice analysis.
    First of all, findings of fact by the district court are entitled to no deference if they are based entirely
    on the record from the state court proceedings. 
    Taylor, 288 F.3d at 850
    . Second, the “one point”
    during deliberations at which the jurors requested the police report occurred after they had been
    deliberating for only ninety minutes, as the trial court noted on the record. Finally, and most
    importantly, the jury’s question does not indicate that they entertained doubts about their ultimate
    decision. This case is readily distinguishable from this court’s decision in Powell v. Collins, 
    332 F.3d 376
    , 401 (6th Cir. 2003), in which the jury had “informed the court that it was ‘at a stalemate’
    and could not agree whether to impose a death sentence.” Here, the jurors merely asked for
    information, which is not an indication that the verdict is unreliable, but a part of the appropriate role
    of the jury. See Weeks v. Angelone, 
    528 U.S. 225
    , 235-26 (2000) (“This particular jury
    demonstrated that it was not too shy to ask questions . . . .”).
    The determination of the Michigan Court of Appeals that the outcome would not have been
    different is thus not an unreasonable application of Strickland, especially in view of this court’s
    deference to state court application of federal law in habeas cases. As the Supreme Court held in
    Wiggins v. Smith, “In order for a federal court to find a state court’s application of our precedent
    ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The
    state court’s application must have been ‘objectively 
    unreasonable.’” 539 U.S. at 520-21
    (citations
    omitted) (quoting 
    Williams, 529 U.S. at 409
    ). The conclusions of the Michigan Court of Appeals
    were not objectively unreasonable.
    III. CONCLUSION
    For these reasons, I would reverse the district court’s grant of the writ of habeas corpus.