Lon Walker v. Jim Morrow , 458 F. App'x 475 ( 2012 )


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    File Name: 12a0122n.06
    No. 09-6537
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    LON S. WALKER,                                                            Feb 1, 2012
    LEONARD GREEN, Clerk
    Petitioner- Appellant,
    v.                                                  ON APPEAL FROM THE UNITED
    STATES DISTRICT COURT FOR THE
    JIM MORROW, Warden,                                 MIDDLE DISTRICT OF TENNESSEE
    Respondent-Appellee.
    /
    BEFORE:         MARTIN, CLAY, and WHITE, Circuit Judges.
    CLAY, Circuit Judge. Petitioner Lon S. Walker, a state prisoner in Tennessee, appeals an
    order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he
    challenged his conviction for second-degree murder. For the reasons set forth below, we REVERSE
    the district court’s order.
    STATEMENT OF FACTS
    I.      Factual Background
    James “Howard” Harp and two cohorts, Stacey Patzer and Walker, were all highly
    intoxicated when Howard was shot on Saturday, October 14, 1995. That morning, Howard and his
    brother, Jerry, visited a mobile home belonging to Walker, with whom the Harp brothers had been
    No. 09-6537
    acquainted for roughly one month.1 The three men began drinking and, after they exhausted their
    supply of alcohol, drove to the adjacent county to buy more. On the way back, they stopped and
    picked up Walker’s friend, Patzer. At the time, Patzer’s husband was detained by local authorities
    awaiting trial. She described Walker as her “drinking budd[y].” (Pet’r App. 216.) Walker provided
    Patzer minor financial support while her husband was in custody, but Patzer denied that she was
    romantically involved with Walker.
    Jerry, Howard, Walker, and Patzer returned to Walker’s trailer and began an afternoon and
    evening of heavy drinking and socializing. Jerry described Patzer and Howard as “pretty well lit”
    by the evening. (Id. 176.) Patzer began to flirt with Howard and Jerry. Howard flirted back.
    Walker griped to Jerry about Patzer’s flirting, expressing frustration that Patzer flirted with Jerry and
    Howard even though Walker provided Patzer financial support. At some point, Walker and Jerry
    retreated into Jerry’s bedroom. There, Walker showed Jerry the .38-caliber revolver he kept near
    his bed. At some other point in the afternoon, Walker walked to his neighbor’s trailer carrying a rum
    and Coke. Walker told his neighbor that he might need help in “kicking this guy’s ass.” (Id. 179.)
    Around 7:30 p.m., Jerry drove Patzer back to her trailer so Patzer could check on her dogs.
    Jerry eventually returned to Walker’s trailer with Patzer. Jerry soon left for the remainder of the
    evening, leaving Howard, Walker, and Patzer at Walker’s trailer. Patzer told investigating officers
    that Howard used the revolver to play Russian Roulette at some point during the evening, though she
    later explained that she did not personally see Howard playing the game.
    1
    The Court refers to Jerry and Howard Harp by their first names, in order to avoid any
    confusion from a reference to “Harp.”
    2
    No. 09-6537
    Around 9:00 p.m., Walker’s friend, Eric Christensen, visited Walker’s trailer. Christensen
    testified that Howard and Patzer were extremely intoxicated, while Walker was only mildly
    intoxicated. During Christensen’s visit, Patzer called her mother and began crying. Howard hugged
    her during the call. Walker verbally threatened Howard and gestured at him with a clenched fist,
    apparently upset that Howard interrupted Patzer’s phone call. Before leaving at 10:00 p.m.,
    Christensen saw Howard and Walker shake hands, though Christensen could not recall whether
    Howard and Walker shook hands before or after the confrontation.
    Around 10:50 p.m., Patzer, Howard, and Walker were talking while standing at the bar
    dividing Walker’s kitchen and living room. Howard and Patzer stood three feet apart on the living
    room side of the bar, and Walker stood on the kitchen side. At 10:51 p.m., the revolver fired a shot
    vertically from the side of Howard’s head through his temple. Patzer immediately called 911 in
    hysterics. Walker hung up the phone. Patzer asked Walker if he and Howard were playing a joke
    on her. Walker explained to Patzer that Howard was dead and that he would “take care of it.” (Id.
    242.) The 911 operator called the trailer back, and Patzer, who had moved into the trailer’s
    bathroom, spoke with the operator. Walker was in his trailer alone during the period Patzer was in
    the bathroom speaking with the 911 operator. During her 911 call, Patzer repeatedly told the
    operator Howard shot himself.
    When officers arrived at Walker’s trailer, Walker was waiting in the driveway and told
    officers that Howard had shot himself. Officer James Lane described Walker’s demeanor as calm.
    When officers entered the trailer to process the scene, they found Walker’s revolver in his kitchen
    sink underneath a cup. The revolver contained one spent round and five live rounds. Investigators
    3
    No. 09-6537
    also found water puddles around the sink. In a conversation with officers, Walker denied ever
    having seen the revolver and asserted that he was in the bathroom when Howard shot himself.
    Walker later admitted owning the revolver and explained that he denied ownership out of fear of
    being blamed for letting an intoxicated Howard come into possession of a gun.
    Patzer told several individuals shortly after the incident that Howard shot himself. Patzer
    spent the first night after the incident with John and Willie Bennis. According to the Bennises’ trial
    testimonies, Patzer told them Howard shot himself when Patzer refused his sexual advances and that
    she did not think the revolver was loaded. Patzer also submitted a written statement to police
    attesting that Howard shot himself.
    Patzer’s account changed two days after the shooting. After a two- or three-hour discussion
    with Officer Lane on Monday, October 16, Patzer told police that Walker shot Howard.
    At trial, Patzer readily admitted that she told officers, the 911 operator, and others that
    Howard shot himself. After sobering up and speaking with police, Patzer explained, the events
    returned to her memory in “bits and pieces.” (Id. 325.) She testified that Walker actually shot
    Howard. By her account, while the three individuals were gathered around Walker’s counter,
    Walker made a sudden motion and, the next thing she knew, Walker held the revolver and Howard
    lay at her feet. Patzer explained that she was so drunk during and after the incident that she could
    not recall for almost two days how Howard was shot. She further explained that several factors
    contributed to her persistence in asserting that Howard shot himself in the days after the incident:
    the hysteria and confusion she suffered in the moments after the shooting; her desire to believe that
    4
    No. 09-6537
    Howard shot himself; the copious amounts of alcohol she drank before and the day after the
    shooting; and her fear of Walker, who she said kept her nearby him in the days after the shooting.
    Thus, the jury heard testimony from Patzer stating that Walker shot Howard, as well as
    several of her prior inconsistent statements stating that Howard shot himself. The court admitted
    most of these prior inconsistent statements—including statements Patzer made to police at Walker’s
    trailer shortly after the shooting, her written statement to police, and statements to her husband and
    friends—solely for impeachment purposes. However, the judge admitted Patzer’s statements to the
    911 operator asserting that Howard shot himself as excited utterances, admissible to prove the truth
    of the matter asserted under Tennessee Rule of Evidence 803(2).
    In his defense, Walker offered evidence that Howard was severely depressed and had acted
    on his suicidal feelings on several occasions. Between the ages of 15 and 23, Howard attempted
    suicide six times. Jerry testified that, on the morning of the incident, Howard said he was going to
    kill himself. Jerry further testified that his brother spoke especially often and intensely about suicide
    when he was intoxicated. Two of Howard’s suicide attempts occurred when he was intoxicated.
    Howard’s blood alcohol content was .40% when he was shot, which, according to the doctor who
    performed Howard’s autopsy, was an alcohol content level at which fifty percent of the population
    would die.
    Walker also offered testimony to further his contention that Patzer changed her story in order
    to obtain favorable treatment for her husband. During her discussion with police regarding
    Howard’s death, Patzer asked police if they could release her husband from pretrial detention. Also,
    according to John and Willie Bennis, Patzer angered Willie Bennis on the night of the shooting after
    5
    No. 09-6537
    Patzer told Bennis she would tell Officer James Lane “anything I have to to get my husband out of
    jail.” (Id. 82. See 
    id. 101.) After
    the close of evidence, the parties made closing statements. During the government’s
    closing statement, the assistant district attorneys general made five statements that Walker contends
    were improper. Defense counsel did not object to any of these statements. First, investigators
    testified that they found a spot of blood one-eighth of an inch in diameter on Walker’s shirt, though
    the serologist offered no opinion about the source of the blood or the length of time it had been on
    Walker’s shirt. In her closing statement, the lead prosecutor claimed the spot was the “splatter” of
    Howard Harp’s blood. (Id. 366.) Walker contends the statement misrepresented the evidence of
    record.
    Second, investigators swabbed Walker’s and Patzer’s hands for gunshot residue roughly two-
    and-a-half hours after the shooting. Howard’s hands were swabbed roughly twenty-three hours after
    the shooting. The residue tests found no residue on Walker’s or Patzer’s hands and residue in an
    inconclusive amount on Howard’s hands. The gunshot residue expert testified that the tests did not
    allow him to offer a sound conclusion about who fired the revolver. In her closing statement,
    however, the lead prosecutor stated that the test disclosed a small amount of gunshot residue on
    Walker’s hands.
    Third, the lead prosecutor claimed Walker knew about Howard’s history of attempted suicide
    at the time of the shooting; Walker claims the statement lacked supporting evidence. Fourth, the
    lead prosecutor described Walker as “very cunning” and “very heartless” and lacking in remorse.
    (Id. 367.) Finally, the assisting prosecutor claimed the police officers who served as the lead
    6
    No. 09-6537
    witnesses against Howard would not have investigated the shooting if Howard’s death had been a
    suicide.
    In his closing argument, defense counsel explained that the jury could consider Patzer’s
    statements to the 911 operator as proof that Howard shot himself. Specifically, he explained that an
    excited utterance was presumed reliable because it occurred contemporaneously with a startling
    event and was therefore unlikely to be the product of fabrication and reflection. Counsel further
    noted that Patzer’s statements to the 911 operator were excited utterances.
    The court’s charge to the jury contradicted counsel’s statements. The court instructed the
    jury that it could use Patzer’s prior inconsistent statements only to impeach her testimony; the judge
    did not instruct the jury that it could consider Patzer’s statements to the 911 operator as excited
    utterances admissible to prove the truth of the matter asserted. Defense counsel did not object to the
    court’s instruction and did not seek a clarifying instruction. At the state post-conviction evidentiary
    hearing, the court stated that the instruction was erroneous and that counsel was deficient by failing
    to object to the instruction. The court concluded, however, that Walker was not prejudiced by the
    error.
    II.      Procedural History
    Walker appealed his conviction and, in 1999, the Tennessee Court of Criminal Appeals
    affirmed the jury’s verdict. State v. Walker, No. 01C01-9711-CR-00535, 
    1999 WL 219629
    (Tenn.
    Crim. App. Apr. 16, 1999). The Tennessee Supreme Court denied Walker permission to appeal.
    Walker moved for state post-conviction relief, raising several ineffective assistance claims.
    The state post-conviction court ruled that an objection from counsel regarding the jury instructions
    7
    No. 09-6537
    was unlikely to lead to another outcome and that defense counsel was not deficient in declining to
    object to the prosecutors’ comments during the state’s closing statement. Walker appealed the same
    issues to the Tennessee Court of Criminal Appeals, which denied him relief in 2002. Walker v.
    State, No. M2001-01090-CCA-R3-PC, 
    2002 WL 31520654
    (Tenn. Crim. App. Nov. 13, 2002). The
    appeals court concluded that any deficiencies in the court’s instructions regarding Patzer’s statements
    did not prejudice Walker. The Tennessee Supreme Court denied Walker permission to appeal.
    Walker timely filed a pro se petition for a writ of habeas corpus on September 4, 2003,
    raising the ineffective assistance claims he raises here. After appointing Walker counsel, the district
    court denied Walker’s request for an evidentiary hearing and denied his petition. Walker v. Lewis,
    No. 2:03-00096, 
    2009 WL 4827429
    slip op. (M.D. Tenn. Dec. 14, 2009). The district court certified
    Walker’s claims of ineffective assistance of counsel for appeal. Walker timely appealed the district
    court’s order.
    DISCUSSION
    I.     Standard of Review
    On appeal of a denial of a petition for a writ of habeas corpus, we review the district court’s
    conclusions of law de novo and its factual findings for clear error. Lovell v. Duffey, 
    629 F.3d 587
    ,
    593–94 (6th Cir. 2011). The Court accepts the state court’s determination of a factual issue unless
    the petitioner upsets that determination by clear and convincing evidence. Moss v. Hofbauer, 
    286 F.3d 851
    , 858–59 (6th Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)).
    8
    No. 09-6537
    II.     Legal Framework
    1.      Antiterrorism and Effective Death Penalty Act (“AEDPA”)
    As amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
    § 2254(d) allows us to grant a writ of habeas corpus to a state prisoner only if the state court’s
    adjudication of his claim “(1) resulted in a decision that was contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by the Supreme Court of the United
    States; or (2) resulted in a determination that was based on an unreasonable determination of the
    facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
    A decision is “‘contrary to’ clearly established federal law if ‘the state court arrives at a
    conclusion opposite to that reached by the Supreme Court on a question of law or if the state court
    decided a case differently than the Supreme Court on a set of materially indistinguishable facts.’”
    Lundgren v. Mitchell, 
    440 F.3d 754
    , 762 (6th Cir. 2006) (quoting Williams v. Taylor, 
    529 U.S. 362
    ,
    413 (2000)) (internal quotation marks and alterations omitted). A state court decision is based on
    “an unreasonable application” of clearly established federal law if “the state court identifies the
    correct governing legal principle but unreasonably applies that principle to the facts of the prisoner’s
    case.” 
    Id. at 763
    (quoting 
    Williams, 529 U.S. at 413
    ). “Clearly established federal law” refers to
    “the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant
    state-court decision.” 
    Id. (citing Williams
    v. Bagley, 
    380 F.3d 932
    , 942 (6th Cir. 2004)) (internal
    quotations omitted).
    AEDPA’s limitations permit this Court to award a petitioner relief only if the state court’s
    application of federal law is “objectively unreasonable,” rather than simply incorrect. Goodell v.
    9
    No. 09-6537
    Williams, 
    643 F.3d 490
    , 495 (6th Cir. 2011) (quoting 
    Williams, 529 U.S. at 409
    ). To conclude that
    a state court’s application of federal law was unreasonable, we must decide that “there is no
    possibility fairminded jurists could disagree that the state court’s decision conflicts with [the
    Supreme] Court’s precedents.” Harrington v. Richter, 
    131 S. Ct. 770
    , 786 (2011). Under this
    inquiry, the Court must first explain “what arguments or theories supported or . . . could have
    supported, the state court’s decision.” 
    Id. Then, the
    Court must decide whether “fairminded jurists
    could disagree that those arguments or theories are inconsistent with the holding in a prior decision
    of [the Supreme] Court.” 
    Id. Only if
    there is no basis for disagreement among fairminded jurists
    can the court award relief. 
    Id. And, as
    the Supreme Court has explained, “[e]valuating whether a
    rule application [by a state appellate court] was unreasonable requires considering the rule’s
    specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-
    case determinations.” 
    Harrington, 131 S. Ct. at 786
    (quoting Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004)).
    In spite of these limitations, the Supreme Court has emphasized that AEDPA “stops short
    of imposing a complete bar on federal court relitigation of claims already rejected in state
    proceedings.” 
    Id. Rather, federal
    habeas review continues to serve the important role of “guard[ing]
    against extreme malfunctions in the state criminal justice systems.” 
    Id. (citation omitted).
    Under AEDPA, the Court examines the last state-court decision on the merits. Garcia v.
    Andrews, 
    488 F.3d 370
    , 374 (6th Cir. 2007). The Court reviews the state court’s determination of
    mixed questions of law and fact under the “unreasonable application” element of AEDPA. Railey
    v. Webb, 
    540 F.3d 393
    , 397 (6th Cir. 2008).
    10
    No. 09-6537
    2.      Procedural Default
    A federal court determining whether a petitioner has defaulted a claim must decide whether
    “(1) a state procedural rule exists that applies to the petitioner’s claim, (2) the petitioner failed to
    comply with the rule, (3) the state court actually applied the state rule in rejecting the petitioner’s
    claim, and (4) the state procedural rule is an adequate and independent ground upon which the state
    can rely to deny relief.” Thompson v. Bell, 
    580 F.3d 423
    , 437 (6th Cir. 2009) (quoting Frazier v.
    Huffman, 
    343 F.3d 780
    , 790 (6th Cir. 2003)). In order for default to bar federal review of a claim,
    the last state court providing a reasoned opinion must “clearly and expressly state[] that its judgment
    rests on a state procedural bar.” 
    Frazier, 343 F.3d at 791
    (quoting Harris v. Reed, 
    489 U.S. 255
    , 263
    (1989)). A claim is not defaulted where the state court does not expressly reject the claim on the
    procedural basis, even if the petitioner’s claim violates a state’s procedural rule. 
    Thompson, 580 F.3d at 437
    . Alternatively, even if the state court fails to reject a claim on a procedural basis, a claim
    is in default where the petitioner fails to raise the claim in state court and pursue it through state
    appellate review. Id.; see Deitz v. Money, 
    391 F.3d 804
    , 808 (6th Cir. 2004) (“A federal court is also
    barred from hearing issues that could have been raised in the state courts, but were not.”), abrogated
    on other grounds by Stone v. Moore, 
    644 F.3d 342
    (6th Cir. 2011).
    3.      Ineffective Assistance of Counsel
    A defendant is not vindicated in his Sixth Amendment right to counsel if “counsel’s conduct
    so undermined the proper functioning of the adversarial process that the trial cannot be relied on as
    having produced a just result.” Strickland v. Washington, 
    466 U.S. 668
    , 686 (1984). Thus, to prevail
    on an ineffective assistance of counsel claim, a petitioner “must demonstrate that counsel’s
    11
    No. 09-6537
    representation fell below an objective standard of reasonableness and that the [petitioner] was
    prejudiced by the ineffective assistance of counsel.” Carter v. Bell, 
    218 F.3d 581
    , 591 (6th Cir.
    2000) (citing 
    Strickland, 466 U.S. at 687
    ).
    Representation is deficient under Strickland when counsel makes an error “so serious that
    counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
    Id. (quoting 
    Strickland, 466 U.S. at 687
    ). To satisfy the prejudice element of Strickland, a petitioner
    must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.” 
    Lundgren, 440 F.3d at 770
    (quoting 
    Strickland, 466 U.S. at 694
    ). The Supreme Court defines a “reasonable probability” as “a probability sufficient
    to undermine confidence in the outcome.” 
    Strickland, 466 U.S. at 694
    .
    In addition to allotting the state court the level of deference AEDPA requires, the Supreme
    Court requires a reviewing court to give the state court further deference when analyzing the state
    court’s application of a general, amorphous rule of constitutional law. The Strickland standard is
    “highly deferential.” 
    Harrington, 131 S. Ct. at 788
    . The Supreme Court requires that AEDPA
    review of a Strickland claim be even more deferential. Hence, if a federal court believes a state court
    was incorrect in deciding a petitioner’s Strickland claim, it may only grant relief after determining
    that no reasonable argument supports the state court’s disposition. 
    Id. III. Failure
    to Object to Jury Instructions
    A.      Deficient Performance
    The trial court admitted numerous statements from Patzer indicating that Howard committed
    suicide, including statements from her 911 call, her written statement to police, and statements she
    12
    No. 09-6537
    made to John and Willie Bennis. Among those statements, the court admitted Patzer’s statements
    to the 911 operator as excited utterances “made while the declarant was under the stress of
    excitement caused by [a startling] event or condition.” Tenn. R. Evid. 803(2). Thus, under
    Tennessee law, the jury was permitted to consider Patzer’s 911 statements for the truth of the matter
    they asserted. See State v. Barrett, No. W1999-02002-CCA-R3-CD, 
    2000 WL 1840073
    , at *6
    (Tenn. Crim. App. Dec. 12, 2000). Nonetheless, the trial court only instructed the jurors that prior
    inconsistent statements could be used to impeach Patzer. The court later admitted that the instruction
    was erroneous and that defense counsel should have objected. We agree.
    There is no reason to believe counsel’s failure to object flowed from sound strategic
    considerations. Walker’s central strategy aimed to demonstrate both that Patzer’s revised recount
    of the shooting was untrustworthy and that her initial account was true. His preferred outcome
    would have had the jury believe Patzer’s statements to the 911 operator and, therefore, conclude that
    Howard shot himself. The foundation of his strategy was the admission of Patzer’s statements to
    the 911 operator as excited utterances. Those statements were invaluable as evidence in support of
    Walker’s theory. Tennessee law typically allows a court to admit a prior inconsistent statement for
    the purpose of impeachment only, on the premise that a typical prior inconsistent statement lacks
    sufficient indicia of reliability to serve as substantive evidence. See Tenn. R. Evid. 806; State v.
    Stackhouse, No. E2010-01972-CCA-R3-CD, 
    2011 WL 5620925
    , slip op. at *10 (Tenn. Crim. App.
    Nov. 18, 2011). As excited utterances admitted to prove that Howard shot himself, however, the
    admission of Patzer’s 911 statements relied on the presumption that Patzer’s observation of the
    shooting “produce[d] a condition of excitement which temporarily still[ed] the capacity of reflection
    13
    No. 09-6537
    and produce[d] utterances free of conscious fabrication.” State v. Ramos, 
    331 S.W.3d 408
    , 415
    (Tenn. Ct. App. 2010) (quoting State v. Land, 
    34 S.W.3d 516
    , 528 (Tenn. Crim. App. 2000)). To
    the end of persuading the jury to rely on Patzer’s statements as substantive evidence, counsel’s
    closing statement emphasized the inconsistencies in Patzer’s account and reminded the jury that
    statements she made shortly after the shooting were excited utterances free of conscious fabrication
    and, therefore, were dependable evidence tending to show Howard shot himself.
    In light of this strategy, it was self-defeating for counsel not to object to the judge’s failure
    to instruct the jury that it could rely on any excited utterances as substantive evidence. After
    providing the jury the evidentiary tools with which it could find that Howard shot himself, counsel
    did not object to the court’s instruction taking those tools from the jury, thus rendering
    “meaningless” his defense based on the truth of Patzer’s 911 statements. Lucas v. O’Dea, 
    179 F.3d 412
    , 419 (6th Cir. 1999). There is simply no reason that counsel would labor to prop up his defense
    with an argument regarding the evidentiary nature of Patzer’s statements, only to have the court
    knock it down. The failure to object was the result of accident, inattention, or mistaken judgment.
    Respondent minimizes counsel’s error by describing the court’s instructions as merely
    “incomplete” rather than incorrect. (Resp. Br. 19.) Because most of the court’s instruction correctly
    explained the law governing prior inconsistent statements, this argument seems to run, the
    instruction was substantially correct and an objection was unncessary.            The distinction the
    government offers is patently unpersuasive. Whether the instruction is described as incomplete or
    incorrect, it barred the jury from using Patzer’s 911 statements as evidence in support of the
    proposition that Howard shot himself. Given the central importance of the permissible use of
    14
    No. 09-6537
    Patzer’s excited utterances to Walker’s strategy, no fairminded jurist could argue counsel’s failure
    to object was not deficient. Even the trial judge admitted in post-conviction proceedings that
    counsel’s failure to object was error on counsel’s part. Hence, it is clear to us that counsel performed
    below an objective standard of reasonableness by failing to object to the court’s omission of the
    instruction.
    B.      Prejudice
    There is a reasonable probability that counsel’s objection to the trial court’s instructions
    would have changed the outcome of Walker’s trial. See 
    Lundgren, 440 F.3d at 770
    (citing
    
    Strickland, 466 U.S. at 694
    ). Patzer’s 911 statements were central to Walker's trial. As the
    post-conviction court explained, “[a]lmost every witness talked about the fact that Stac[]y Patzer had
    previously said the victim committed suicide.” (Pet’r App. 445.) A proper instruction would have
    permitted the jury to use all the evidence presented at trial, for any purpose for which it was properly
    presented. That evidence included Patzer’s statements to the 911 operator. Those statements were
    not trifling evidence. Rather, under Tennessee law, they supported the proposition that Walker shot
    himself. But the jury was not permitted to consider the full range of evidence presented at trial. The
    omission of any instruction on the evidentiary value of Patzer’s excited utterances required the jury
    to treat those utterances identically to the myriad other statements that impeached Patzer. By
    prohibiting a certain use of Patzer’s statements—the use most probative of Walker’s innocence, to
    be sure—the court effectively excluded strong evidence in favor of Walker.
    The state court applied Strickland unreasonably by concluding otherwise. The Tennessee
    Court of Criminal Appeals ignored the distinction between a typical prior inconsistent statement and
    15
    No. 09-6537
    an excited utterance. It lumped together all of Patzer’s prior inconsistent statements and assumed
    that they all had the same evidentiary value. That assumption is incorrect. Collapsing the distinction
    between these two types of inconsistent statements unjustifiably minimizes the different weights they
    carry, and, specifically, the potential weight Patzer’s excited utterances carried in Walker’s defense.
    The post-conviction appellate court also understated the weight of the court’s instructions
    in guiding the jury’s deliberation. By treating all of Patzer’s prior inconsistent statements the same,
    the state court assumed that an instruction from the court would have made no difference in the
    jury’s deliberation. That assumption is incorrect as well. The argument that the jury could have
    believed Patzer’s 911 statements because the jury heard them in court undercuts the very concept of
    providing a court’s limiting instructions. An instruction on the evidentiary purpose of Patzer’s
    excited utterances would have allowed the jury to distinguish those statements from Patzer’s other
    statements, even her other statements implicating Howard in the shooting. See United States v.
    Layne, 
    192 F.3d 556
    , 573 (6th Cir. 1999). Had the judge so instructed the jury, we would have
    “presume[d] [jury instructions] to have been effective unless there is an ‘overwhelming probability’
    that they were ignored.” Scott v. Mitchell, 
    209 F.3d 854
    , 879 (6th Cir. 2000) (quoting Richardson
    v. Marsh, 
    481 U.S. 200
    , 208 (1987)); see, e.g., Hall v. Vasbinder, 
    563 F.3d 222
    , 239 (6th Cir. 2009);
    Bey v. Bagley, 
    500 F.3d 514
    , 522 (6th Cir. 2007). Since the court did not instruct the jury regarding
    Patzer’s 911 statements, we adhere to the corollary proposition: in the absence of an instruction
    regarding excited utterances, we presume the jury treated Patzer’s 911 statements as it was instructed
    to treat Patzer’s other inconsistent statements.
    16
    No. 09-6537
    Predictably, Respondent contends that the state court correctly concluded the weight of the
    evidence implicating Walker overcame any deficiency in the judge's instruction. The evidence of
    Petitioner’s guilt was, however, hardly overwhelming. The record contains ample evidence to
    support the contention that Howard shot himself. Howard’s history included the expression of
    suicidal feelings and several suicide attempts. The very morning of the shooting, he told his brother
    that he planned to kill himself. Howard became more suicidal when he was intoxicated, and Howard
    was extremely intoxicated on the night of the shooting. Jerry explained that Howard became suicidal
    when he drank because he felt no one cared for him or loved him, and Patzer had rebuffed Howard’s
    sexual advances prior to the shooting. And, of course, there was also evidence of Walker’s
    innocence in the form of Patzer’s panicked statements to the 911 operator that Howard committed
    suicide.
    Moreover, while there was evidence suggesting that Walker shot Howard, much of that
    evidence was inconclusive. The state’s strongest evidence was Patzer’s testimony that Walker shot
    Howard, but the jury was well aware of the inconsistency in Patzer’s story. Jerry and Christensen
    testified that Walker became angry when Patzer flirted with Jerry and Howard on the night of the
    shooting, but Christensen also saw the two men shake hands at another time. Walker asked his
    neighbor, Benjamin Johnson, to “back him up” in case Walker had to “kick this guy’s ass,” though
    Johnson testified that Walker did not specify to whom he was referring. Moreover, Walker had no
    more than a small spot of blood on his shirt, which, even assuming the blood was Howard’s, is
    hardly supportive of the argument that Walker placed a gun to Howard’s temple and fired. A
    gunshot residue expert’s test of the residue on Walker’s hands roughly two hours after the shooting
    17
    No. 09-6537
    returned inconclusive. The same test on Howard’s hands yielded more evidence of residue than did
    Walker’s hands, even though Walker’s hands were tested sooner after the shooting. Additionally,
    while Walker acted suspiciously in the time after the shooting, his behavior is consistent with his
    contention that he lied because he was afraid of being blamed for allowing an intoxicated Howard
    to possess the gun. Finally, and perhaps most importantly, the charge against Walker grew out of
    an uncorroborated event witnessed by three highly intoxicated individuals. Thus, while the jury may
    have returned a guilty verdict if properly instructed on Patzer’s excited utterances, that outcome is
    hardly beyond doubt, to say the least.2
    Thus, by failing to account for the force of the judge’s instructions upon the jury, and by
    failing to consider the effect of the court’s incorrect instruction upon the total mix of evidence
    implicating Walker, the state court unreasonably applied federal law.
    2
    The circumstantial nature of the evidence against Walker, coupled with the highly probative
    nature of Patzer’s 911 statements, place this case on different footing than Berghuis v. Thompkins,
    
    130 S. Ct. 2250
    , 2264–65 (2010), in which the Supreme Court reversed this Court’s decision
    granting the writ. There, an associate of the defendant, who had been tried and acquitted of the
    shooting for which the defendant was charged, testified that the defendant committed the shooting.
    
    Id. at 2257.
    We granted the writ partly on the ground that defense counsel failed to object when the
    judge did not instruct the jury not to use the associate’s testimony as proof of the defendant’s guilt.
    
    Id. at 2259.
    In reversing this Court’s decision, the Supreme Court relied in part upon its decision
    that counsel's objection would not have led the jury to acquit the defendant “in light of all the other
    evidence of guilt.” 
    Id. at 2265.
    As we have explained, the evidence that Walker shot Howard was
    much weaker than the evidence of the defendant’s guilt in Berghuis, where a surviving victim
    identified the defendant as the shooter, the defendant’s friend testified that the defendant confessed
    to the shooting, and other evidence corroborated the defendant’s guilt.
    18
    No. 09-6537
    IV.    Failure to Object to Improper Closing Statements
    A.      Procedural Default
    Among the sub-claims of Walker’s ineffective assistance claim, he contends that counsel was
    ineffective by failing to object when the prosecutors improperly claimed Walker knew about Howard
    Harp’s history of suicide attempts and improperly bolstered Officer James Lane’s testimony. The
    district court concluded Walker defaulted these sub-claims. That conclusion was incorrect.
    No state court denied either of these sub-claims on a procedural basis. On post-conviction
    appeal, the Tennessee Court of Criminal Appeals noted that Walker challenged counsel’s conduct
    of failing “to object to certain remarks, questions or inferences made by the State . . . in closing
    arguments.” Walker, 
    2002 WL 31520654
    , at *10. The court then considered the claim and denied
    it on the merits. See 
    id. at *11–12.
    Hence, in rejecting this portion of Walker’s ineffective
    assistance claim, the Tennessee Court of Criminal Appeals’ “decision was clearly based on its view
    of the merits of Petitioner’s claim under federal law” rather than Walker’s failure to comply with a
    state procedural rule. Haliym v. Mitchell, 
    492 F.3d 680
    , 693 (6th Cir. 2007); see 
    Thompson, 580 F.3d at 437
    .
    Walker raised these sub-claims in his habeas petition, clearly fashioning them as parts of an
    ineffective assistance claim. In response to Walker’s petition, Respondent did not argue that Walker
    defaulted either sub-claim. Rather, he argued that the state appeals court’s denial of Walker’s
    ineffective assistance claim was not contrary to established Supreme Court precedent. Respondent
    only argued Walker was barred from raising the independent prosecutorial misconduct claims arising
    from the allegedly improper statements of counsel involved here. Therefore, Respondent waived
    19
    No. 09-6537
    this defense by failing to raise it before the district court. Matthews v. Parker, 
    651 F.3d 489
    , 498–99
    (6th Cir. 2011); White v. Mitchell, 
    431 F.3d 517
    , 524 (6th Cir. 2005). Any argument that Walker
    defaulted these sub-claims would have nevertheless failed, since the state court rejected the sub-
    claims on the merits. See 
    Thompson, 580 F.3d at 437
    .
    The district court read the state appeals court’s generalized account of Walker’s ineffective
    assistance claims to mean that Walker failed to raise these sub-claims in state post-conviction
    proceedings. Walker, 
    2009 WL 4827429
    , slip op. at *29–31. This reading was incorrect,
    particularly given Respondent’s decision not to argue in front of the district court that Walker’s
    claim was defaulted.
    Furthermore, the district court did not consider this claim as one for ineffective assistance
    of counsel. Rather, the district court incorrectly treated Walker’s ineffective assistance claim as an
    independent prosecutorial misconduct claim, before concluding that Walker defaulted the claim.
    Walker, 
    2009 WL 4827429
    , slip op. at *31 (“Petitioner did not present any of the facts of these
    prosecutorial misconduct claims as independent federal claims of prosecutorial misconduct to the
    state courts. Thus, these prosecutorial misconduct claims are subject to procedural default.”). The
    district court may have been allowed to raise a procedural default defense sua sponte, see Lorraine
    v. Coyle, 
    291 F.3d 416
    , 426 (6th Cir. 2002), but that power assumes the court construes a defaulted
    claim as the petitioner has fashioned it.
    Had the district court properly read Walker’s ineffective assistance claim and concluded that
    it was defaulted, that conclusion would have been incorrect, because the Tennessee Court of
    Criminal Appeals rejected the claim on the merits. Therefore, the district court incorrectly concluded
    20
    No. 09-6537
    that Walker defaulted his ineffective assistance claims based on counsel’s failure to object to the
    prosecutors’ bolstering Officer Lane’s testimony and allegation that Walker knew of Howard Harp’s
    history of suicide attempts.
    B.      Legal Framework
    Defense counsel’s failure to object to prosecutorial misconduct can amount to ineffective
    assistance of counsel. See Hodge v. Hurley, 
    426 F.3d 368
    , 377 (6th Cir. 2005). A petitioner’s
    ineffective assistance claim based on counsel’s failure to object will not succeed if the decision not
    to object flowed from objectively reasonable trial strategy. 
    Id. at 385–86.
    The soundness of
    counsel’s strategy becomes increasingly difficult to demonstrate the more outrageous the
    prosecutor’s conduct. See 
    id. A prosecutor
    commits misconduct if improper comments from the prosecutor “so infected
    the trial with unfairness as to make the conviction a denial of due process.” 
    Lundgren, 440 F.3d at 778
    (quoting Darden v. Wainwright, 
    477 U.S. 168
    , 181 (1986)). The questions of whether a
    prosecutor’s comments amount to misconduct, and whether the misconduct renders a trial
    fundamentally unfair, are mixed questions of law and fact reviewed de novo. United States v.
    Francis, 
    170 F.3d 546
    , 549 (6th Cir. 1999).
    We employ a two-part test for reviewing a habeas petition’s prosecutorial misconduct claim.
    First, a petitioner must demonstrate the prosecutor’s comments were improper. Broom v. Mitchell,
    
    441 F.3d 392
    , 412 (6th Cir. 2006). A prosecutor’s conduct is improper if she makes an argument
    not based on evidence in the record, makes a statement calculated to incite the jurors’ “passions and
    prejudices,” or makes a comment aimed at “completely undercut[ting] the defendant’s sole
    21
    No. 09-6537
    mitigation theory.” 
    Id. (citing Bates
    v. Bell, 
    402 F.3d 635
    , 641 (6th Cir. 2005), DePew v. Anderson,
    
    311 F.3d 742
    , 749 (6th Cir. 2002), and Gall v. Parker, 
    231 F.3d 265
    , 315 (6th Cir. 2000)).
    Second, a petitioner must demonstrate that the prosecutor’s conduct was flagrant. 
    Id. In deciding
    whether a prosecutor’s conduct was flagrant, this Court considers “(1) the likelihood that
    the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the
    remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made;
    and (4) the total strength of the evidence against the [petitioner].” 
    Id. (citation omitted).
    C.      Analysis
    Walker alleges five comments from state prosecutors were improper and flagrant, and,
    accordingly, counsel’s failure to object to the accused comments represented ineffective assistance.
    First, Walker contends the prosecutor’s description of the gunshot residue expert’s testimony
    misrepresented evidence in the record. A forensic expert tested Walker’s hands for gunshot residue.
    He found small amounts of barium and antimony, two of the three metals that compose gunshot
    residue. The expert described the amount of residue he found on Walker’s hands as inconclusive
    and present at levels insufficient to allow him to conclude Walker fired the gun. In her closing
    statement, the prosecutor described the expert’s testimony:
    Now, where does the defendant have minute amounts of gunshot residue on his
    hands? You’ll recall [the expert] said he had them on the surfaces of his hands, I
    believe a little bit on one of the palms—I don’t remember from my notes—but on the
    surfaces of his hands. So even though he washed his hands, and Mr. Davis from the
    lab testified that you can remove gunshot residue by washing your hands, but this
    defendant had gunshot residue, minute particles of gunshot residue, or the chemicals,
    two chemicals, in very small amounts of his hands.
    (Pet’r App. 365.)
    22
    No. 09-6537
    Second, Walker argues that the prosecutor misrepresented the evidence regarding blood
    found on the shirt Walker wore when Howard was shot. A serologist performed a test on a portion
    of the shirt stained by two small red spots. The serologist concluded that one of the spots one-eighth
    of an inch in diameter was dried human blood, but she could not determine the source of the blood
    or when it stained Walker’s shirt. In her closing statement, the prosecutor described the contents of
    the red spots:
    [I]f you will look very closely up in this area of this T-shirt, if you’ll look very, very
    closely to the spot and the splatter on that, the faded splatter on there, I believe that
    you will understand what [the investigating officer] saw if you can just imagine it
    being a little brighter color. We’re not talking about smears of blood. We’re talking
    about blood splatter, what happens when somebody pulls a trigger and blows
    somebody’s brains out and the blood splatters. It splatters. It doesn’t transfer. It’s
    not smeared. It splatters.
    (Id. 366.) Walker contends that counsel’s description of the red spots as “splatter” was improper,
    because the serologist did not testify that both spots were human blood.
    Third, Walker challenges counsel’s failure to object to certain characterizations the lead
    prosecutor made during her closing argument:
    Mr. Walker is a very clever and a very cunning, very heartless [sic]. And I say that
    because the proof in this case showed you that. And I want to tell you specifically
    what I’m talking about. He has no remorse. At any time during this evidence that’s
    been presented in this case did you hear one single time that he shed a tear or he said
    anything being remorse as far as this victim?
    (Id. 367.).
    Fourth, Walker contends the prosecutor misrepresented evidence in the record by asserting
    that Walker knew about Howard’s history of suicide attempts. Jerry Harp testified that he had
    known Walker for roughly one month prior to the day of the shooting. The record before the Court
    23
    No. 09-6537
    does not disclose whether Howard had previously met Walker before the day of the shooting or
    whether Walker had any knowledge of Howard’s history. In her closing statement, the prosecutor
    argued that Walker knew about Howard’s history of suicide attempts:
    Everybody in the world that knew the victim in this case and knew his family,
    including his friend, Mr. Lon Walker, his drinking buddy, knew that Howard Harp
    had threatened or attempted suicide on numerous other occasions . . . [Jerry Harp]
    testified in here that when [Howard] would get to drinking and he would get
    depressed that he would start feeling like nobody loved him and he would start
    threatening suicide, sometimes attempting suicide. And this defendant right over
    here who was friends with Jerry and Howard Harp went out drinking with them, hung
    out with them, knew all about that, and this defendant right over here took advantage
    of that situation . . . This defendant over here who was jealous, who knew this young
    man had a tendency to try, to threaten, to attempt suicide.
    (Id. 363–64.) Walker argues the misrepresentation was significant, contending it created the
    impression that Walker knew he could shoot Howard and potentially blame the shooting on Howard.
    Finally, the prosecutors referred to Officer Lane’s investigation during their closing
    arguments, which Walker argues was improper. In her closing statement, the lead prosecutor
    expressed confidence in Officer Lane’s investigation of Howard’s death:
    [L]adies and gentlemen of the jury, I just want to say and I want to tell you that James
    Lane with the Cookeville Police Department has done an excellent job in this case
    investigating this case, and we are just asking you to find the truth. That’s all we are
    asking you to do in this case.
    (Id. 368.) The assisting prosecutor then explained how Patzer’s discussions with Officer Lane led
    her to change her story and state that Walker shot Howard. In explaining why Officer Lane
    investigated the shooting, the prosecutor stated:
    Officer Lane told you that he had 154 active cases. Ladies and gentlemen, if this had
    been a suicide, he probably would have been happy to fold his case file up and let it
    go. But, as [defense counsel] said, we’re after justice. And if he feels that was not
    24
    No. 09-6537
    justice, then he’s got to investigate. He didn’t need another case. He’s got plenty of
    them.
    (Id. 389.) Walker contends the prosecutors’ statements constituted misconduct, on the ground that
    it is improper for a prosecutor to bolster an officer’s testimony or offer his personal opinion on the
    defendant’s guilt.   See, e.g., United States v. Warshak, 
    631 F.3d 266
    , 303 (6th Cir. 2010).
    The prosecutors’ first three comments were not improper. The prosecutor quickly corrected
    herself after stating that the expert found gunshot residue on Walker’s hands, describing the
    materials on Walker’s hands as two of the chemicals that make up gunshot residue. As to the
    comments about the blood on Walker’s shirt, counsel did not misrepresent the evidence presented
    to the jury. “Splatter” is not a term of art, and by using that term the prosecutor did not imply that
    the expert testified she found blood splatter on Walker’s shirt. Rather, “splatter” is a colloquial term,
    which counsel used to argue that the spots on Walker’s shirt were, in fact, spots of Howard’s blood
    that fell on Walker’s shirt. This argument was a proper attempt to lead the jury to an inference
    drawn from some evidence on record, which does not constitute misconduct. See United States v.
    Henry, 
    545 F.3d 367
    , 377 (6th Cir. 2008).
    For the same reason, the prosecutor’s comments regarding Walker’s character were not
    improper. She drew her argument from Officer Lane’s testimony that Walker appeared calm when
    officers showed up at her trailer, and the inference was a valid one. While this Court has concluded
    that a prosecutor commits misconduct by making an “animated recitation” of properly-admitted
    character evidence, Washington v. Hofbauer, 
    228 F.3d 689
    , 699 (6th Cir. 2000), and by asserting that
    members of the jury should be afraid to “run into [the defendant] at night,” 
    Hodge, 426 F.3d at 383
    ,
    the prosecutor’s comments in this case fell well short of the impropriety displayed in those cases.
    25
    No. 09-6537
    By contrast, the remaining two sets of comments were improper. The record does not
    disclose that Walker knew about Howard’s history of suicide attempts, and so it was improper for
    the prosecutor to assert that Walker knew of them. As this Court has explained, a prosecutor’s act
    of misrepresenting facts in evidence is improper, since doing so “may profoundly impress a jury and
    may have a significant impact on the jury’s deliberations.” 
    Washington, 228 F.3d at 700
    (quoting
    Donnelly v. DeChristoforo, 
    416 U.S. 637
    , 646 (1974)). The record before the Court discloses no
    basis upon which the prosecutor could argue that Walker “knew all about” Howard’s history of
    suicide attempts. The prosecutor’s remarks were also flagrant: they were deliberate and extensive,
    spreading across roughly two transcript pages of her closing statement. Given the testimony that
    Walker had become angry with Howard earlier in the evening, the prosecutor’s remarks potentially
    misled the jury into believing Walker could have formulated a plan to act on his anger. The
    comments are all the more troubling given that no other evidence supported the theory that Walker
    acted with the sort of premeditation that using knowledge of Howard’s suicide attempts as an alibi
    would have entailed.
    Even more troubling were the prosecutor’s comments regarding Officer Lane’s investigation,
    which bolstered and vouched for Lane’s testimony. We have explained that “[b]olstering and
    vouching are much alike and go to the heart of a fair trial.” 
    Francis, 170 F.3d at 551
    . A prosecutor
    bolsters testimony when he “implies that the witness’s testimony is corroborated by evidence known
    to the government but not known to the jury.” 
    Id. Vouching occurs
    when a prosecutor places the
    prestige of the government behind a witness with the prosecutor’s personal assurance of the
    witness’s reliability. 
    Id. at 550.
    Vouching also occurs when a prosecutor expresses his “personal
    26
    No. 09-6537
    belief” in the defendant’s guilt, which this Court has repeatedly condemned. 
    Bess, 593 F.2d at 755
    –56; see 
    Warshak, 631 F.3d at 303
    .
    While all of the prosecutors’ comments lauding the officer’s investigation were out of
    bounds, it was especially improper for the assisting prosecutor to assert that Lane “would have been
    happy to fold his case file up . . . if [Howard’s death] had been a suicide.” This comment directly
    violated the rule long recognized in our circuit that “it is always improper for a prosecutor to suggest
    that a defendant is guilty merely because he is being prosecuted or has been indicted.” 
    Washington, 228 F.3d at 701
    –02 (quoting 
    Bess, 593 F.3d at 754
    ) (internal quotation marks omitted). We
    announced that rule in Bess, in which an Assistant United States Attorney prosecuting a defendant
    accused of converting government property asserted to the jury that:
    If the United States did not believe the defendant was guilty of committing these
    charges in the indictment, based on the evidence that has been presented to you, this
    case, of course, would have never been presented to you in the first place. It would
    have never been presented to you.
    
    Bess, 593 F.3d at 753
    . The case against the defendant in Bess, like the case against Walker, was one
    in which “[c]redibility was the key issue.” 
    Id. The comments
    in Bess, like the comments of the
    assisting prosecutor here, were “doubly inexcusable” since they were “made by a prosecuting
    attorney.” 
    Id. at 753–54.
    The jury deciding Walker’s fate “face[d] difficult credibility issues”
    related to Patzer’s testimony. 
    Id. at 755.
    Bolstering and vouching are “especially problematic” in
    cases where the jury’s verdict is likely to turn on witness credibility. United States v. Combs, 
    379 F.3d 564
    , 576 (9th Cir. 2004) (internal citations omitted). Making them even more problematic in
    this case is the fact that a law enforcement official’s testimony was vouched for and bolstered, thus
    giving the assisting prosecutor’s comments a “devastating impact.” 
    Bess, 593 F.3d at 755
    .
    27
    No. 09-6537
    The assisting prosecutor’s comments also implied that he personally believed Walker was
    guilty. See 
    Francis, 170 F.3d at 550
    (explaining that vouching can occur when a prosecutor’s
    comments “imply,” rather than state outright, his knowledge of facts outside the jury’s view). The
    assisting prosecutor’s comments set up a stark contrast. In one scenario, police would rule Howard’s
    death a suicide, making Lane “happy to fold his case file up and let [the case] go.” As the case
    turned out, however, Officer Lane sought out “justice” and investigated Walker. The comments
    equated acquittal with injustice, and forced the jury into a straightjacketed choice between the justice
    of a conviction and the injustice of an acquittal.
    The comments were also flagrant. The prosecutor’s remarks were relatively isolated, but we
    have recognized that, “[i]n some instances, a single forbidden comment is sufficient to poison the
    entire trial.” 
    Warshak, 631 F.3d at 307
    . We have just such an instance in this case: the comments
    about Officer Lane’s investigation poisoned Walker’s trial. The comments were not casual or off-
    handed, but were rather woven into the prosecutor’s narrative detailing the change in Patzer’s story
    and Officer Lane’s decision to investigate the shooting as a homicide. Thus, the prosecutor’s
    comments were deliberate.
    Also significant in our flagrancy inquiry is the fact that the prosecutor’s comments bolstered
    and vouched for the testimony and investigation of a law enforcement official rather than a lay
    witness. We have not hesitated to reverse convictions in which a prosecutor has vouched for or
    bolstered the testimony of a lay witness. See, e.g., 
    Francis, 170 F.3d at 551
    ; United States v.
    Carroll, 
    26 F.3d 1380
    , 1389 (6th Cir. 1994). We find it more damaging that the assisting prosecutor
    here bolstered and vouched for a police investigator. If it poisons an entire trial for a prosecutor to
    28
    No. 09-6537
    vouch for the truthfulness of a government witness testifying pursuant to a plea agreement, see
    
    Francis, 170 F.3d at 550
    , then it must be the case that comments vouching for the investigation and
    testimony of a law enforcement official does the same. Thus, the comments likely misled the jury,
    resting as they did on the assumption that jurors should trust a law enforcement official irrespective
    of the evidence before them. All told, no reasonable jurist could disagree with the conclusion that
    counsel’s comments so poisoned Walker’s trial as to deprive him of due process of law.
    Petitioner’s trial counsel could not have had a strategic basis for failing to object to the
    prosecutors’ offending statements. Walker’s chances of acquittal could gain nothing from a
    statement from the prosecutors appealing to the high regard in which law enforcement officials are
    held, particularly in a case low on hard evidence and staked largely on witness credibility. Defense
    counsel should have objected to the prosecutors’ remarks.
    For the reasons stated above, the state court unreasonably applied federal law in concluding
    that counsel’s failure to object to these comments did not constitute ineffective assistance. See
    Walker, 
    2002 WL 31520654
    , at *11–12. While there may be reasons to conclude that counsel’s
    failure to object to an improper remark is justified in other cases, none of those reasons apply here.
    In certain cases, counsel may reason that an objection would draw undesirable attention to the
    prosecutor’s comments. See Schauer v. McKee, 401 F. App’x 97, 101 (6th Cir. 2010). That
    justification is unconvincing with regard to the prosecutor’s comments about Officer Lane. Given
    the obvious potency of the prosecutor’s comments and important role credibility judgments played
    in the jury’s deliberations, the prosecutor’s request that the jury assume fire existed where Officer
    Lane found smoke was too damaging to ignore. Moreover, while a single failure to object often does
    29
    No. 09-6537
    not constitute error, see 
    Lundgren, 440 F.3d at 774
    , the comments vouching for and bolstering
    Officer Lane were sufficiently severe to poison the entire trial, see 
    Warshak, 631 F.3d at 307
    ,
    rendering inexcusable counsel’s decision to let them pass. The state court erred by overlooking these
    factors in concluding counsel was not ineffective for failing to object.
    Counsel’s failure to object prejudiced Walker. As we have explained, the evidence against
    Walker left the outcome of his trial far from certain, and the case against him turned largely on
    witness credibility. Thus, counsel’s decision not to object to the prosecutor’s comments freed jury
    members to allow the judgment of a law enforcement official to satisfy any doubts about the state’s
    evidence. Hence, there is a reasonable probabily that an objection from counsel would have led to
    a different outcome in Walker’s trial.
    CONCLUSION
    For the reasons stated above, the judgment of the district court is reversed, and a conditional
    writ of habeas corpus is issued, directing the State of Tennessee to retry Petitioner within 120 days
    from the date of this order or release him from custody.
    30