Freeman v. Trombley (744 F. Supp. 2d 697, 2010)

OPINION & ORDER CONDITIONALLY GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

DENISE PAGE HOOD, District Judge.

I. INTRODUCTION

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Frederick Thomas Freeman, (“Petitioner”), who is confined at the Saginaw Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas corpus through counsel raising the following claims: (1) Petitioner was denied the right to make a record regarding his defense attorney’s drug use; (2) ineffective assistance of counsel; (3) ineffective assistance of appellate counsel; (4) prosecutorial misconduct; (5) actual innocence; (6) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (7) jury instruction error; and (8) cumulative error. Petitioner was convicted of first-degree murder, Mich. Comp. Laws § 750.316. He was sentenced to life imprisonment. For the reasons that follow, the petition will be conditionally granted.

II. FACTUAL BACKGROUND

Petitioner’s conviction arose from the shooting death of Scott Macklem, on November 5, 1986, in the parking lot of St. Clair Community College shortly before 9:00 am. The prosecution theorizes that Mr. Macklem was murdered by Petitioner due to his jealousy of Crystal Merrill and Mr. Macklem’s relationship. Crystal Merrill is the former girlfriend of Petitioner. Ms. Merrill and Mr. Macklem were engaged to be married and were expecting their first child together. Petitioner argues that he did not commit the murder and that he was not at the scene of the shooting. Petitioner produced alibi witnesses at trial to support his theory of the case.

III. PROCEDURAL HISTORY

Following Petitioner’s conviction, he filed a direct appeal with the Michigan Court of Appeals raising the following claims: (1) trial court error in the admission of prior “bad acts” evidence; (2) trial court error in the admission of hypnotically induced identification testimony; (3) trial court error in its denial of Petitioner’s motion for a new trial; (4) ineffective assistance of counsel; (5) trial court error in the admission of in-court identification testimony when it was improperly suggestive; (6) trial court error in its decision to deny Petitioner’s motion to suppress statements made by him to the police as they were searching his home; (7) prosecutorial misconduct; (8) trial court error in its admission of rebuttal testimony from a prosecution witness; (9) trial court error in the admission of testimony from a police officer who eavesdropped on a telephone conversation between Petitioner and Ms. Merrill; and (10) insufficient evidence to sustain the charge of first-degree murder. The Michigan Court of Appeals affirmed Petitioner’s conviction. People v. Freeman, No.: 103276 (Mich.Ct.App. Sept. 13, 1993)

Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court and raised the following claims:

I. Defendant-Appellant Frederick Freeman was denied due process and a fair trial where, over objection, the prosecutor’s case rested largely on improperly admitted character evidence and likewise improper evidence of alleged bad acts, including rape, assault, extortion and electronic surveillance.

II. The introduction of post hypnotic testimony denied defendant his right to due process of law and his right of cross-examination due to the inherent unreliability of the process of hypnosis and its outcome, the failure to preserve prehypnotic recall or to follow the requisite safeguards, and the corruptive effect of the suggestive, post-hypnotic identification.

III. Defendant-Appellant Frederick Freeman was denied due process and a fair trial and the effective assistance of counsel where Rene Gobeyn, Richard Krueger and Kathleen Ballard were allowed to give identification testimony which was the product of suggestive pretrial identification procedures.

IV. The prosecutor and his prison inmate witness misled the jury as to the bargain for the witness’ testimony, thus depriving defendant of his constitutional rights to due process and to confrontation of witnesses.

V. Defendant-Appellant Freeman was denied due process and a fair trial where the trial court vouched for his credibility by telling the jury that Mr. Joplin had received “no favor” for testifying.

VI. Defendant-Appellant Freeman was denied due process and a fair trial where the prosecutor’s closing argument improperly shifted the burden to the defense to prove an alibi beyond a “serious doubt” by producing documentary evidence in support.

VII. The trial court erred reversibly by failing to suppress the alleged declarations of defendant-appellant Freeman where those statements were the fruit of an unlawful search of Mr. Freeman’s home and/or Mr. Freeman was denied the effective assistance of counsel where trial counsel failed to timely object to the search.

VIII. The trial court erred reversibly by allowing the prosecution, over objection, to present so-called rebuttal evidence concerning charter air flights that was irrelevant and immaterial to the issues in the case and distracting and confusing to the jury.

IX. The cumulative effect of the errors denied defendant-appellant Freeman a fair trial.

X. Defendant-Appellant Freeman was improperly tried and convicted and is entitled to reversal where the prosecutor presented insufficient evidence at the preliminary examination to support a bindover on the open murder charge.

The Michigan Supreme Court denied leave to appeal. People v. Freeman, 445 Mich. 911, 519 N.W.2d 894 (1994) (table). Petitioner filed a motion for reconsideration with the Michigan Supreme Court and relief was denied. People v. Freeman, 522 N.W.2d 636 (1994).

On October 1, 2004, Petitioner filed a motion for relief from judgment in the trial court raising the following claims: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) defective jury instruction; (4) new law regarding concealment of promises to informants; (5) newly discovered evidence; (6) Petitioner’s exposure to the jury while in prison garb; (7) the verdict was against the great weight of the evidence; and (8) insufficient evidence to sustain a first-degree murder conviction. The trial court denied Petitioner’s motion on January 11, 2005. Petitioner filed a motion for rehearing and reconsideration with the trial court and relief was again denied on February 3, 2005.

Petitioner filed an application for leave to appeal with the Michigan Court of Appeals raising the following issues:

I. The defendant demonstrated a significant possibility of his innocence and the trial court abused its discretion in refusing to consider the defendant’s showing of actual innocence or to order an evidentiary hearing.

II. The lower court abused its discretion in finding that the issues herein raised had been raised in previous appeals.

III. The defendant was denied the effective representation of trial counsel by virtue of trial counsel’s drug addiction and activities which adversely affected his performance.

IV. Trial counsel, by virtue of his drag activities which made him a target for investigation by local law enforcement officials, was enmeshed in a conflict of interest in undertaking the representation of the defendant, who was being prosecuted by the same officials and his representation thereby rendered ineffective under Strickland v. Washington and it progeny.

V. Trial counsel was also enmeshed in an impermissible conflict of interest by virtue of his having been the attorney for the chief investigating officer, which conflict rendered his representation of the defendant ineffective under Strickland v. Washington and its progeny.

VI. Trial counsel’s failure to call Michelle Woodworth and other witnesses constituted ineffective representation under Strickland v. Washington and its progeny.

VII. Trial counsel’s obstruction of the defendant’s desire and right to testify constituted a deprivation of his constitutional right to testify.

VIII. The police threats directed at material defense witness Michelle Wood-worth resulting in her nonappearance constituted prosecutorial misconduct depriving the defendant of due process guaranteed by the federal and state constitutions.

IX. The elicitation by the prosecution of the false testimony of Philip Joplin and its concealment of promises made to him to secure his testimony constituted prosecutorial misconduct and a violation of the constitutional rights of the defendant.

X. The repeated production of objectionable and highly inflammatory testimony and argument, the courtroom display of items shown only to inflame the passions of the jury, and the prosecutor’s comment on the defendant’s failure to testify constituted prosecutorial misconduct which deprived the defendant of a constitutionally fair trial.

XI. The failure of defendant’s appellate counsel to raise the issues presented in Arguments III through X above deprived the defendant of the effective assistance of appellate counsel under Evitts v. Lucey and its progeny.

XII. Appellate Counsel failed to raise other significant issues in the defendant’s previous appeals, including the claims that the verdict was against the great weight of the evidence, that the evidence was insufficient to support the verdict, that the defendant was exposed to the jury while in shackles and jail garb, and that the instruction given the jury on reasonable doubt was constitutionally defective.

Petitioner’s application for leave to appeal was denied. People v. Freeman, No: 260864 (Mich.Ct.App. Aug. 25, 2005). Petitioner filed an application for leave to appeal with the Michigan Supreme Court raising the same claims. Relief was denied on January 30, 2006. People v. Freeman, 474 Mich. 1025, 708 N.W.2d 423 (2006) (table).

Now pending before the Court is Petitioner’s petition for writ of habeas corpus filed on January 23, 2007, wherein he raises the following habeas claims:

“I. The trial court denied the petitioner[’s] due process by failing to allow the petitioner to make a record concerning trial counsel’s drug addiction and activities which adversely [ajffected his performance at the petitioner’s trial and which were not argued in the petitioner’s original appeal by appointed appellate counsel.

II. Trial counsel was ineffective when he had a conflict of interest, was impaired by a drug addiction, by failing to call petitioner’s chief alibi witness, and when he obstructed petitioner from taking the stand.

III. The failure of defendant’s original appellate counsel to raise the issues deprived the petitioner of the effective assistance of appellate counsel under Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

IV. There was prosecutorial misconduct and a violation of the petitioner’s due process rights.”

Petitioner subsequently filed with this Court a motion for leave to supplement his habeas petition [Dkt. #22]. The Court granted the motion [Dkt. # 29], allowing for the following additional issues to be raised on habeas review: (1) actual innocence; (2) trial court error in allowing Petitioner to be dressed in prison garb and shackles in the presence of the jury; (3) jury instruction error; and (4) cumulative error.

IV. STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), a petitioner is not entitled to relief in a federal habeas corpus proceeding unless the state court’s adjudication of his or her due process claim resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

“Clearly established federal law” means “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision is “contrary to” 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 decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 412-13, 120 S.Ct. 1495.

“Under the ‘unreasonable application’ clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Furthermore, a federal court may not issue a writ of habeas corpus under the “unreasonable application” clause of 28 U.S.C. § 2254(d) “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 365, 120 S.Ct. 1495; see also Price v. Vincent, 538 U.S. 634, 638-39, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable,” as opposed to transforming the inquiry into a subjective one by inquiring whether all reasonable jurists would agree that the application by the state court was reasonable. Williams v. Taylor, 529 U.S. at 411, 120 S.Ct. 1495.

Y. ANALYSIS

A. Procedural Default & Statute of Limitations

Respondent argues that the habeas petition should be dismissed because it is time-barred. Alternatively, Respondent asserts that several habeas claims should be denied because they are procedurally defaulted. For the reasons set forth below the Court disagrees with both arguments and the habeas petition will be reviewed on the merits.

B. Ineffective Assistance of Counsel

Petitioner argues that he received ineffective assistance of counsel because: (1) his defense attorney was using illegal narcotics while representing Petitioner at trial; (2) defense counsel created a conflict of interest problem; (3) defense counsel obstructed Petitioner’s opportunity and desire to testify in his own defense, and (4) defense counsel failed to call Michelle Woodworth as a chief alibi witness.

To show that Petitioner was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two-prong test. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court sets forth the two-pronged test for determining whether a habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, the petitioner must establish that the deficient performance prejudiced the defense. Counsel’s errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.

With respect to the performance prong, a petitioner must identify acts that were “outside the wide range of professionally competent assistance” in order to prove deficient performance. Id. at 690, 104 S.Ct. 2052. The reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689,104 S.Ct. 2052. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. 2052.

To satisfy the prejudice prong under Strickland, a petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. “On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result.” McQueen v. Scroggy, 99 F.3d 1302, 1311-12 (6th Cir.1996). Under Strickland, a court must presume that decisions by counsel as to whether to call or question witnesses are matters of trial strategy. See Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir.2002).

1. Trial Counsel’s Drug Use (Overall Performance at Trial)

Petitioner claims that defense counsel was addicted to drugs while representing him during his trial court proceedings and, therefore, was afforded ineffective assistance of counsel. Specifically, Petitioner cites the following deficiencies in his legal representation: (1) failure to object and/or move to strike the testimony of various witnesses; and (2) defense counsel’s inattention to the trial court proceedings while scribbling non-sensical statements on paper. Pet. at 19-22; Pet., Ex. E.

It is undisputed that defense counsel had a substance abuse problem around the time he was serving as Petitioner’s defense attorney. Pet. Ex. A, pp. 38-45; Ex. B. It is also undisputed that defense counsel was found to be ineffective during his service as counsel in a subsequent case. Pet., Ex. A, pp. 136-38. “The Strickland standard applies to claims of ineffective assistance of counsel due to drug use.” Muniz v. Smith, 2009 WL 2928898, *10 (E.D.Mich. Sept. 10, 2009). An attorney’s use of drugs at or around the time of his legal representation does not raise the presumption of prejudice to the client. Id.; Burdine v. Johnson, 262 F.3d 336, 395 (5th Cir.2001) (“Prejudice has not been presumed for claims of denial of effective-assistance due to counsel’s alleged impairment because of alcohol, drug use or a mental condition.”). In order for Petitioner to be successful in receiving habeas relief on the theory that his attorney was addicted to drugs during his legal representation, he must demonstrate that he suffered prejudice as a result of defense counsel’s drug use. See, e.g., Berry v. King, 765 F.2d 451, 454 (5th Cir.1985).

As previously stated, Petitioner points to instances during trial where he believes defense counsel should have responded differently. With any trial of this length (spanning the course of Vh months) there will be judgment calls, and no two attorneys would try the same case in the exact same way. See Durr v. Mitchell, 487 F.3d 423, 439 (6th Cir.2007) (“In a trial of any size, numerous potentially objectionable events occur. ‘[T]he Constitution does not insure that defense counsel will recognize and raise every conceivable constitutional claim.’ ”). If an attorney chooses not to place certain objections on the record or move to strike certain testimony, that does not conclusively mean that his legal representation is deficient or that the defendant will suffer prejudice as a result. Id. (“[A]ny single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial to a client that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel’s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.”).

The Michigan Court of Appeals addressed the issue of the admission of character and “bad acts” testimony in this case, to which no objections were made by defense counsel, as follows:

“We believe that the trial judge was fully aware of the potential harm of admitting “bad acts” evidence and would have limited the matters now raised on appeal had defendant objected below. However, it appears that the defense purposely did not object in furtherance of a strategy of attacking the credibility of Crystal Merrill. The defense attempted to portray Ms. Merrill as unstable and incredible. Her testimony that she continued to date defendant despite alleged “rapes” and “slave behavior” was used by the defense to challenge her credibility.

XXX

While the defense strategy of attacking the credibility of Crystal Merrill did not ultimately prevail, it had the potential for success. Further we believe that a portion of the now disputed testimony was factual background relating to the prior relationship between Merrill and defendant. Some preliminary background information was necessary for the jury to understand the prosecutor’s theory as to why defendant would kill a total stranger.”

People v. Freeman, No.: 103276, 1-2 (Mich.Ct.App. Sept. 13, 1993)

Petitioner also raised an ineffective assistance of counsel issue on direct appeal, but it was not based upon defense counsel’s drug use. The basis of Petitioner’s claim was that defense counsel did not move to suppress certain witness identification evidence. The Michigan Court of Appeals ruled as follows:

“In the instant case, after conducting a Ginther hearing, the trial court determined that defendant had not been denied the effective assistance of counsel. We agree. Defendant’s contention that his trial counsel should have moved to suppress the photographic identification of defendant by witnesses Rene Gobeyn, Richard Krueger and Kathleen Ballard because the lineup was conducted without the presence of defendant’s counsel, is without merit. At the Ginther hearing, defendant’s trial counsel testified that he had reviewed the circumstances surrounding the photographic lineup and determined that no legal basis existed to support a motion to suppress the identification of defendant from the lineup. We find as did the trial court that defendant was not entitled to have counsel present at the photographic lineup because he was not yet the focus of the police investigation.

Defendant also contends that trial counsel was ineffective because he failed to move to suppress the witnesses’ identification of defendant at the corporeal lineup. We disagree. Counsel who was present at the corporeal lineup, testified at the Ginther hearing that he did not move to suppress witness Richard Krueger’s identification because Krueger identified someone other than defendant and counsel intended to use that misidentification to impeach the witness at trial. As such, counsel’s decision was a matter of sound trial strategy. Likewise, trial counsel did not move to suppress witness Rene Gobeyn’s identification of defendant on grounds other than those raised by defendant on appeal. Furthermore, witness Kathleen Ballard could not identify the assailant at the corporal lineup, making suppression unnecessary.”

Id. at 2-3.

A Ginther hearing was held assessing the effectiveness of counsel at trial. At the hearing, there was a finding that defense counsel provided effective assistance. The matter was reviewed by the Michigan Court of Appeals, and it agreed with the trial court findings. A review of the record demonstrates that defense counsel’s drug use during trial did not prejudicially impact Petitioner’s defense.

Before the trial began, defense counsel made several substantive motions on Petitioner’s behalf, some of which were successful. Tr. 2/2/87, pp. 3, 24-54. Defense counsel also represented to the court that, of the 83 listed prosecution witnesses, he had interviewed each witness and traveled to Escanaba, Flint and other cities outside of the Detroit metropolitan area in order to obtain those interviews. Tr. 4/8/87, pp. 2-3. He also told the trial court that he had requested search warrants and police reports in furtherance of his discovery. Id. Additional motions were filed regarding venue, discovery, suppression, request for a polygraph, request for appointment of a private investigator, request to interview certain witnesses. See, e.g., id. at 1, 6, 9, 24-25, 33, 39, 48. Once the trial began, additional substantive motions were filed, including motions for mistrial, exclusion of hypnosis testimony and suppression. Tr. 5/1/87, pg. 652; Tr. 5/5/87, pg. 849; Tr. 5/7/87, pg. 1514.

In addition to the numerous motions filed by Petitioner, defense counsel’s advocacy at trial cannot be deemed deficient or ineffective. As noted by the Michigan Court of Appeals and by defense counsel at his Ginther hearing, trial counsel had a strategy to place Ms. Merrill in a bad light with the jury by attacking her credibility. The record demonstrates the level of aggressiveness displayed by defense counsel in an effort to discredit her incriminating testimony. Tr. 4/30/87, pp. 568-651; Tr. 5/1/87, pp. 652-55, 696-700, 726-31. Petitioner was also very aggressive with his cross-examination of Sergeant Bowns, infra, which is set forth in more detail below. Defense counsel demonstrated his knowledge regarding the physical evidence including shell casings, fingerprints, and weaponry, being used against Petitioner and attempted to use the evidence to Petitioner’s advantage by implying that law enforcement officials may have missed or ignored pivotal evidence regarding the shotgun shell. Tr. 5/5/87, pp. 955, 974-77, 1001-04; Tr. 5/13/87, pp. 1828-1829.

Defense counsel also lessened the negative impact of Officer David Hall’s testimony. Officer Hall overheard a conversation between Petitioner and Ms. Merrill and testified about several incriminating statements made by Petitioner to Ms. Merrill. However, defense counsel was able to aggressively attack Officer Hall’s testimony on the grounds that the alleged incriminating statements by Petitioner attested to during direct examination were not included in the initial police report, but rather were only recalled by Officer Hall several months after the fact at trial. Tr. 5/7/87, pp. 1303-26.

Defense counsel called 21 defense witnesses. Since Petitioner was identified as wearing an army-style kind of jacket, defense counsel called Bruce Lamb to testify that the Army had an office in the area near the crime scene, which would not make it unusual to see other individuals in the area wearing army style jackets. Tr. 5/13/87, pp. 1771-75. He also called Booker T. Brown, a cell-mate of Petitioner’s, and Donna Henderson, a security officer at the college where Mr. Macklem was shot. Tr. 5/13/87, pp. 1754-56,1817-19.

Reviewing the record in its entirety, the Court finds that defense counsel’s overall scope of legal representation was not prejudicial to Petitioner’s case. Petitioner is not entitled to habeas relief relative to this prong of his ineffective assistance of counsel argument.

2. Conflict of Interest

Petitioner argues that due to a conflict of interest, defense counsel was not aggressive in his cross-examination of Sergeant John Bowns, a witness for the prosecution. Defense counsel represented Sergeant Bowns in a prior and unrelated civil employment matter. Because of this relationship, Petitioner argues that defense counsel’s cross-examination of Sergeant Bowns did not demonstrate a zealous representation of Petitioner rights.

Petitioner has a Sixth Amendment right to conflict free representation by his counsel. See Smith v. Anderson, 689 F.2d 59, 62-63 (6th Cir.1982); see also Gillard v. Mitchell, 445 F.3d 883 (6th Cir.2006). Sergeant Bowns was an investigating officer in the murder of Mr. Macklem. Petitioner asserts that his counsel was ineffective relative to his cross-examination of Sergeant Bowns, specifically as follows:

“A review of six opportunities he had to ‘vigorously cross-examine Bowns contradicts the contention [that defense counsel engaged in a vigorous cross-examination], For instance, Bowns clearly lied when he testified that the search warrant he obtained in Eseanaba was for a search of certain “targeted items,” as opposed to a search limited to Petitioner’s person. Yet, Dean [defense counsel] never touched on this opportunity to attack Bowns’ credibility. Nor did he probe into conversation that had been had between Bowns and the jailhouse informant, Philip Joplin, which would have revealed that it had been Bowns who had made the covert promises to Joplin that secured his false testimony. Nor did he raise with Bowns, either during trial or in this motion for a new trial, the fact that Bowns had made threats to Michelle Woodworth that frightened her from testifying. All were instances of police misconduct and cried out for development in Bowns’ cross-examination.’ ”

Pet. at 27.

The record belies Petitioner’s argument. Petitioner has identified lines of questioning defense counsel could have followed during his cross-examination of Sergeant Bowns. However, the record demonstrates how defense counsel approached the trial court outside of the presence of the jury relative to Sergeant Bowns, and leveled several forms of attack against his testimony in an effort to lessen the negative impact of his testimony against Petitioner: accusations by defense counsel about the identity of the affiant on a search warrant; defense counsel’s challenge to the admissibility of statements made by Petitioner to Sergeant Bowns; accusations by defense counsel that Sergeant Bowns’ conduct amounted to manifest injustice; accusations by defense counsel that Sergeant Bowns was perjuring himself; accusations by defense counsel that Sergeant Bowns intimidated Michelle Woodworth into not testifying. Tr. 5/12/87, pp. 1514-18. A reading of the record reveals that despite defense counsel’s choice not to attack Sergeant Bowns in the matter in which Petitioner suggests, the Court finds that defense counsel performed an adversarial, lengthy, and zealous cross-examination of Sergeant Bowns on a variety of subjects, including Bowns’ lack of experience in leading homicide investigations, Bowns’ mishandling of evidence during the investigation, and his having searched Petitioner’s house without finding anything associated with the homicide. See, e.g., Tr. 5/1/87, pp. 817-25, 836-38; Tr. 5/5/87, pp. 954-56; Tr. 5/6/87, pp. 1213-39.

Although Petitioner points out other questioning and forms of attack on Sergeant Bowns while on the witness stand, he has not overcome the presumption that defense counsel’s decision not to approach his cross-examination of Sergeant Bowns in the manner suggested by Petitioner was sound trial strategy. Nor has Petitioner established that an actual conflict of interest exists in this case. “[A]n actual conflict of interest mean[s] precisely a conflict that affected counsel’s performance as opposed to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).

Only where there is dual representation involving the attorney does that presumption of prejudice standard apply. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The Sixth Circuit has interpreted Sullivan’s presumption of prejudice standard, stating that it does not extend “to conflicts of interest other than those of multiple concurrent representation.” Smith v. Hofbauer, 312 F.3d 809, 816 (6th Cir.2002). Petitioner has failed to establish that defense counsel was representing Sergeant Bowns and Petitioner at the same time. Therefore, the presumption of prejudice standard does not apply. Id. As a result, the traditional Strickland standard applies in determining the issue of ineffective assistance of counsel. Lordi v. Ishee, 384 F.3d 189, 193 (6th Cir.2004).

Petitioner cannot establish that counsel labored under an actual conflict of interest that adversely affected defense counsel’s performance. Mickens, 535 U.S. at 171, 122 S.Ct. 1237. Defense counsel elicited testimony from his former client, was aggressive during his cross-examination of Sergeant Bowns, challenged Sergeant Bowns’ testimony before the trial court, and treated Sergeant Bowns in an adversarial manner. The Court does not find that Petitioner’s assertion of the existence of a conflict of interest is a basis for his ineffective assistance of counsel claim.

3. Obstruction of Petitioner’s Right to Testify in his own Defense

Petitioner argues that he was denied effective assistance of counsel because his defense attorney precluded him from testifying in his own defense at trial. He claims that he was, at a minimum, entitled to an evidentiary hearing on the matter so that he could make a record of the issue. It is well-established that a criminal defendant has a constitutional right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 52-53 & n. 10, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Neuman v. Rivers, 125 F.3d 315, 318 (6th Cir.1997).

“[I]t has been held that a barebones assertion by a defendant [even one] made under oath, is insufficient to require a hearing or other action on his claim that he has a right to testify in his own defense and it was denied him. It is just too facile a tactic to be allowed to succeed. Some greater particularity is necessary — to give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim”

McCoy v. Bock, No. 01-10052, 2003 WL 22994984, *11 (E.D.Mich. Dec. 17, 2003) (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.1991), and citing Chang v. United States, 250 F.3d 79, 84-85 (2nd Cir.2001); Siciliano v. Vose, 834 F.2d 29, 31 (1st Cir.1987)).

“A defendant who wants to testify can reject defense counsel’s advice to the contrary by insisting on testifying, communicating with the trial court, or discharging counsel. At base, a defendant must alert the trial court that he desires to testify or that there is a disagreement with defense counsel regarding whether he should take the stand. When a defendant does not alert the trial court of a disagreement, waiver of the right to testify may be inferred from the defendant’s conduct. Waiver is presumed from the defendant’s failure to testify or notify the trial court of the desire.”

Hodge v. Haeberlin, 579 F.3d 627, 639-40 (6th Cir.2009) (citations omitted); (quoting United States v. Webber, 208 F.3d 545, 551 (6th Cir.2000)).

In this case, Petitioner attests in a self-serving affidavit that trial counsel precluded him from testifying at trial. Petitioner does not present any evidence other than his own assertions, which allege that he was misled or believed he was not allowed to testify; he was threatened into not testifying; and he was uninformed about his constitutional right to testify in his own defense. Petitioner stated in his affidavit:

“Affiant strongly desired to testify in his defense. Based upon his conversations with Mr. Dean, he assumed he would be called to testify. However, Mr. Dean— despite affiant’s protests and without his consent — declined to call affiant to the stand. When affiant wished to protest to the court his counsel’s refusal to call him, the court refused to hear him, telling him he would have to address the court through his attorney. The only explanation offered affiant by Mr. Dean was that affiant had been present during the trial and would for that reason not be allowed to testify. Affiant was at no time told that he had an absolute right to testify in his defense. Mr. Dean also threatened to withdraw from the case when affiant demanded to be allowed to tell the court that he wanted to testify. If affiant had been permitted to testify, he would have testified in great detail about his complete innocence of this crime; that he would have contradicted much of Ms. Merrill’s testimony; that he would have detailed her obsession with him; that he would have contradicted many of the false statements elicited about his character by the prosecution; that he would have contradicted many factually inaccurate statements made by prosecution witnesses; that he would have provided more detailed evidence of his alibi on the days before, during and after the crime; that he would have explained the exact nature of the phone calls between himself, Sgt. Bowns and Ms. Merrill; that he would have contradicted the testimony of Sgt. Hall regarding the comments attributed to him in the phone call to Ms. Merrill on November 13, 1986; that he would have offered testimony as to the suggestive lineup procedure employed by the investigating officers; that he would have testified that he never owned or possessed a shotgun; that he would have testified that he at no time had any ill feelings toward Mr. Macklem or any reason to do him harm; that he never in any way acknowledged to Mr. Joplin any involvement in this crime. He would further have offered other substantial and material evidence to establish his innocence of this offense.”

Pet., Ex. D, ¶¶ 40, 41. This claim was not raised on direct appeal, however, Petitioner asserts that he requested that his appellate attorney raise the issue and he failed to do so. Id. at ¶¶ 48, 49.

Michelle Woodworth, Petitioner’s ex-girlfriend, also stated in her affidavit: “[a]fter the trial in which Frederick Freeman was convicted of murder, attorney Dean told her that he had made a mistake by not allowing Frederick Freeman to testify at trial.” Pet., Ex. G, pg. 5, ¶ 31. Finally, in a May 19, 1987 article in the “Times Herald,” jurors from Petitioner’s trial were interviewed afterwards and one of them said: “[a]nd if he was so innocent, why didn’t he testify himself and tell us he didn’t do it.’ ” Pet., Ex. M.

Here, although the record supports that Petitioner in fact did not testify in his own defense and there is no trial record evidence to support Petitioner’s assertions that he tried to exercise his constitutional right to testify with his defense attorney and with the trial court judge, Petitioner’s affidavit provides a sufficient amount of detail explaining why there would be no record of his efforts to testify in his own defense. A disagreement between defense counsel and Petitioner would not necessarily make its way to the record. Also, if the trial judge only heard from Petitioner through defense counsel, Defendant would not have had an opportunity to express his concerns to the trial judge. Petitioner would only be left with his own account of what transpired relative to his inability to testify.

The Court is aware that self-serving affidavits are reviewed with suspicion and skepticism as they are typically drafted for the purpose of supporting the affiant’s position in a case. However, if the affidavit is detailed or contains particulars which would “give the claim sufficient credibility to warrant a further investment of judicial resources in determining the truth of the claim,” the affidavit would be sufficient evidence to support habeas relief. See McCoy, No. 01-10052, 2003 WL 22994984, *11. Petitioner’s affidavit amounts to more than “bald assertions.” The affidavit sets forth specific and factual details regarding Petitioner’s attempts to testify at his trial. He states that defense counsel failed to tell Petitioner that he had a constitutional right to testify and Petitioner was unaware of that fact. Petitioner states that his attorney threatened to abandon his case if he persisted with his efforts to testify in his own defense. Petitioner states that he tried to tell the judge of his desire to testify and would not be heard. Petitioner states that he told his attorney of his desire to testify and was rejected. Petitioner goes on to state what he would have testified to if he had been given the opportunity to testify in his own defense.

“[Djefense counsel’s role is to advise the defendant whether or not the defendant should take the stand, but it is for the defendant, ultimately, to decide.” Webber, 208 F.3d at 550-51. As noted, a defendant must “alert the trial court” that he desires to testify or that there is a disagreement with defense counsel regarding whether he should take the stand. If the defendant fails to do so, waiver is presumed. Id. at 551. In this case, Petitioner provides a sworn statement that he did alert the judge and that there was a disagreement with his attorney. The Court finds that Petitioner did all that he could do to exercise his right to testify in his own defense and was not only precluded from doing so, but also prevented from making a record of the claim. Habeas relief is therefore warranted on this claim.

4. Failure to Call Michelle Woodworth

Petitioner argues that defense counsel was ineffective due to his poor decision to not call Michelle Woodworth as a witness. Petitioner asserts that Ms. Woodworth, his live-in girlfriend at the time, would have provided an alibi for Petitioner. She would have also provided testimony disputing the theory that Petitioner was an obsessive ex-boyfriend who was so jealous of Ms. Merrill’s and Mr. Macklem’s relationship that he was driven to kill Mr. Macklem. Petitioner asserts that Ms. Woodworth would have testified that it was Petitioner who wanted to sever the relationship with Ms. Merrill.

A review of the record indicates that defense counsel’s decision to not call Ms. Woodworth may have been one of strategy because the record reflects that defense counsel clearly knew about Ms. Wood-worth, but: (1) chose to use unrelated, unimpeachable, and more reliable alibi witnesses to support his defense theory; (2) had trouble locating her after she appeared to leave town; and (3) was not sure if he wanted to use her as an alibi witness because of her tumultuous relationship with Petitioner and her untruthfulness in the past. Mot. New Tr. 6/15/87, pp. 9-13, 15-16.

However, during Petitioner’s first motion for a new trial, defense counsel argued as a basis for the motion that Michelle Woodworth’s testimony was newly discovered evidence as she was then prepared to submit to polygraphs and/or provide testimony to support the fact that Petitioner was with her at the time Macklem was being murdered. Id. at 5. The trial court denied Petitioner’s motion for a new trial and stated as follows:

Well, I am not satisfied that the purported evidence the defense wants to elicit from this witness is newly discovered. Whatever the young lady knew she knew from the outset. From the trial it was clear to me that the parties had had an ongoing and close relationship. If, as it appears from Defendant’s Counsel’s argument now, that her testimony was so critical, and obviously if she claims that she was with him at 9:00 in the morning there could be no evidence that is more critical to his defense, every effort should have been made by the defense to preserve that witness and preserve that testimony.

As Mr. Cleland has pointed out, there are ways with the assistance of the Court that testimony can be preserved or material witnesses can be held to account. None of those things were done in this case.

Because the Court feels the evidence in question was not newly discovered and because it is very clear to the Court that reasonable diligence was not exercised in securing the attendance of that witness or in some way preserving her testimony, a Motion for a new trial must be denied.

Id. at 15. Additionally, although the prosecutor stated at the hearing that he concluded defense counsel’s basis for not endorsing Ms. Woodworth as an alibi witness was strategic, he also said the following:

Her name nowhere appears on either of Mr. Dean’s alibi notices; neither hers nor the other young woman we have heard talk about who at the moment her name escapes me. But in any event, there was no attempt by the defense to raise these before the trial; to ask leave of the Court for any assistance; to ask the Prosecution for any assistance in finding a witness. Under the statute, which may be allowable, I wouldn’t guarantee that at the moment, but at least there is a procedure that is laid out in the statute to ask the assistance of the Prosecution in locating important witnesses. None of that was done. None of that was even attempted.

Id. at 9. By defense counsel’s own admission, some of the reasons for not calling Ms. Woodworth as a witness at trial still existed at the time of the motion hearing for a new trial, for example, her troubled relationship with Petitioner. Despite that fact, he still asked the trial court to accept her testimony as newly discovered so that it could be heard at a new trial. Defense counsel stated as follows:

She has indicated to me that she no longer wants anything to do with Defendant Frederick Freeman. That although the Prosecution claims that she was dominated by him, she says no, although there may have been some mistreatment and she no longer wants to be associated.

Id. at 5. Moreover, Ms. Woodworth’s affidavit testimony states as follows:

“25. Following Frederick Freeman’s arrest, she made herself available to his attorney, David Dean, whom she saw on a virtually daily basis while, according to her understanding, he was preparing for the trial of Frederick Freeman. She told attorney Dean everything reflected in this affidavit, and all information within her knowledge concerning Frederick Freeman and his non-involvement in the death of Scott Macklem.

* * *

29. Both attorney Dean and Detectives Bowns and Hudson were aware that she had gone to live with her mother and that Mr. Dean’s office was in contact with her mother before the trial of Frederick Freeman. She assume[d] she would be called to testify at the trial by attorney Dean, but she was never requested to do so, nor did she ever receive a subpoena to appear for the trial of Frederick Freeman. Attorney Dean never told her that he would not call her as a witness, or give any reason why he would not do so.”

Pet., Ex. G, pp. 4-5. The testimony set forth in Ms. Woodworth’s affidavit not only would have provided a strong alibi for Petitioner, but it contradicts defense counsel’s representations that she was uncooperative and that he did not know how to contact her for purposes of securing her trial testimony. Therefore, for defense counsel to fail to preserve her testimony or endorse her as an alibi witness, regardless of whether he was certain that she would be called as a witness, is as described by the trial court as a failure to exercise “reasonable diligence.”

The Court finds that defense counsel’s failure to preserve the opportunity to call Ms. Woodworth as an alibi witness constituted deficient performance. In light of the fact that Ms. Woodworth’s testimony provided Petitioner with a solid alibi — that Petitioner was with her at the time Mr. Maeklem was murdered — prejudiced Petitioner’s defense. The Court finds that defense counsel’s error was so serious that it deprived Petitioner of a fair trial or appeal. Habeas relief is warranted on this issue.

C. Prison Garb & Shackles

Petitioner argues that he was “paraded in front of his jury in prison garb and fully manacled” Pet. at 34. Petitioner states in his habeas petition that “[n]o reason was advanced for these measures.” Id. at 35. However, Petitioner’s affidavit reads as follows:

Prosecutor Cleland, claiming falsely that affiant was “planning an escape,” used this explanation to justify the affiant being initially brought to the courtroom each day in shackles and jail garb and shown to the jury while so shackled. When affiant tried to bring this to the attention of the trial judge, he was told to communicate it through his attorney. Affiant related this on several occasions to his attorney, Mr. Dean, but Mr. Dean failed to call it to the attention of the court.

Pet. Ex. D, ¶ 32. Respondent does not address the issue in its responsive pleading.

Compelling a defendant to wear identifiable prison attire at trial can violate the constitutional right to due process because it impairs the presumption of innocence so basic to our adversary system. Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Use of visible shackles during the guilt or penalty phases of a trial is forbidden under the Constitution “unless that use is ‘justified by an essential state interest’' — such as the interest of courtroom security— specific to the defendant on trial.” Deck v. Missouri, 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)) (empha^ sis in original).

Initially, during pre-trial motions, voir dire, and during the first part of the first witness’ testimony, it appears from the record that Petitioner was brought to the courthouse in prison garb, passed the jury room, and subsequently changed into civilian clothing in an office outside of the courtroom. Tr. 4/30/87, pg. 446. The trial court judge grew impatient with this practice because following Petitioner’s arrival to court, everyone would be required to wait an additional 25 minutes for Petitioner to get dressed. Id. Therefore, the trial judge requested that the prosecutor facilitate Petitioner getting dressed before he came to court so that the trial proceedings could begin on time, and the courthouse would not be used as a dressing room. Id. at 446-47.

From the time during the testimony of the prosecutor’s first witness until the conclusion of the trial, Petitioner no longer arrived at court in prison garb. For the limited number of times Petitioner did arrive to the courthouse in prison garb, he claims that habeas relief is warranted since the jury saw him when he passed by the jury room.

The record does not reference Petitioner being shackled, but only that he was wearing “jail house greens.” Even assuming he was shackled and in prison clothing during the initial portion of the trial, there is no evidence in the record, except for Petitioner’s representation, that the jurors saw Petitioner in prison garb and shackles. Even if the jurors did see Petitioner, the Supreme Court’s holding in Deck is limited to visible restraints during trial. Mendoza v. Berghuis, 544 F.3d 650, 654 (6th Cir.2008). “[T]he Supreme Court has not held that a defendant’s constitutional rights are violated when jurors see him shackled during transport to or from the courtroom.” Id. at 655. “[JQurors may well expect criminal defendants ... to be restrained during transport to the courtroom.” Id. at 655 (emphasis in original). As the Mendoza court observed, although “there is authority from the [Sixth Circuit] to the contrary, [s ]ee e.g., [United States v.] Moreno, 933 F.2d [362,] 368 [ (6th Cir. 1991) ], ... the predicate for [petitioner’s] claim — ‘clearly established federal law, as determined by the Supreme Court of the United States’ — is absent here.” 544 F.3d at 655-56. When the trial court requested that the prosecutor assist in facilitating Petitioner being brought to court in civilian clothing, the record only reflects that the judge’s reasoning was purely based upon his desire to be efficient and save time. Contrary to the implications in Petitioner’s pleadings, the trial court does not indicate any concern on the record regarding Petitioner’s claim of a possible constitutional violation resulting from arriving at court in prison garb, unlike that which is implied in the Petitioner’s pleadings. Therefore, Petitioner was not denied his right to a presumption of innocence and a fair trial. Since there has been no unreasonable application of Estelle or Deck, habeas relief is not warranted on this claim.

D. Improper Jury Instruction

Petitioner claims that the trial court erroneously instructed the jury regarding the concept of reasonable doubt. An erroneous jury instruction warrants habeas corpus relief only where the instruction “so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). “[I]t must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ but that it violated some [constitutional] right.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (quoting Cupp, 414 U.S. at 146, 94 S.Ct. 396). The jury instruction “ ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72, 112 S.Ct. 475 (quoting Cupp, 414 U.S. at 147, 94 S.Ct. 396). The court must “inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)).

A federal court may not grant the writ of habeas corpus on the ground that a jury instruction was incorrect under state law, Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and “[a]n omission[ ] or an incomplete instruetion[ ] is less likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). On habeas review, this Court is bound by the state court’s interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005).

Petitioner claims that the trial court erroneously instructed the jury on reasonable doubt because the trial court used the phrase “moral certainty” in its reasonable doubt instruction “which tells the jury that a doubt ‘based on the possibility of the innocence of the defendant’ is not reasonable doubt.” Pet. at 36. Petitioner argues that this language is misleading and fails to provide “constitutionally adequate due process” Id. The trial court issued the following reasonable doubt jury instruction:

Basic to our system of criminal justice is the principle that a person accused of a crime is presumed to be innocent. This presumption of innocense starts at the very beginning of this case, and continues throughout the trial, and during deliberations. Each and every one of you must be satisfied beyond a reasonable doubt after deliberating, that the defendant is guilty before you can return a verdict of guilty. You must begin your deliberations with the presumption of innocence foremost in your minds.

The fact that the defendant was arrested and is on trial is no evidence against him. There must be evidence introduced in this trial that convinces you of the defendant’s guilt beyond a reasonable doubt. The law does not require a defendant to prove his innocence or to produce any evidence whatsoever. The burden of proving guilt is upon the prosecution throughout the entire course of the trial, and at no time does the burden of proof shift to the defendant.

Unlike civil cases the burden of proof is higher in criminal cases and the prosecution must prove guilt. If for any reason, after considering all of the evidence in this case, you are not satisfied that every element has been proven beyond a reasonable doubt, then you must find the defendant not guilty.

A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence in this case, or growing out of any reasonable or legitimate inferences drawn from the evidence or the lack of evidence. It is not merely an imaginary doubt or a flimsy, fanciful doubt, or a doubt based upon the mere possibility of the innocence of the defendant, or a doubt based upon sympathy, but rather it is a fair, honest doubt based upon reason and common sense. It is a state of mind which would cause you to hesitate in making an important decision in your own personal life.

By stating that the prosecution must prove guilt beyond a reasonable doubt, I mean there must be such evidence that causes you to have a firm conviction to a moral certainty of the truth of the charge here made against the defendant.

Tr. 5/15/87, pp. 2032-34

It is, of course, beyond debate that the state must prove each element of a charged offense beyond a reasonable doubt in order to sustain a conviction. See In re Winship, 397 U.S. at 363, 90 S.Ct. 1068. On habeas review, the proper inquiry for a court assessing a reasonable doubt instruction is whether there is a reasonable likelihood that the jury did apply the jury instruction in an unconstitutional manner. Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Here, Petitioner contends that the reasonable doubt instruction was deficient because it contained language referring to “moral certainty” and “the possibility of innocence” that reduced the prosecution’s burden of proof. Petitioner believes that the term “moral certainty” in the reasonable doubt instruction impermissibly lowered the burden of proof. In Cage v. Louisiana, 498 U.S. 39, 40-41, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), the Supreme Court held that an instruction that defined reasonable doubt in terms of “grave uncertainty” and “actual substantial doubt,” and required conviction based upon “moral certainty,” could have been interpreted by a reasonable juror as allowing a finding of guilt based upon a degree of proof below that required by the Due Process Clause. Cage, 498 U.S. at 41, 111 S.Ct. 328 (1990). In reversing the conviction, the Supreme Court found that terms like “substantial” and “grave,” in common parlance, “suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” Id. When combined with the reference to moral certainty, a reasonable juror could have been confused by the instruction and interpreted it to overstate the required degree of uncertainty. Id.

In Victor v. Nebraska, the Supreme Court limited its holding in Cage, reasoning that the mere use of the term “moral certainty” in a jury instruction defining reasonable doubt by itself did not violate due process. The Court determined that the term “moral certainty,” read in the context of the instruction in Victor, merely impressed upon the jury the need to reach a subjective state of near-certitude of guilt. The Court found no reasonable likelihood that the jury would have understood the phrase to be disassociated from the evidence in that case. 511 U.S. at 14-16, 114 S.Ct. 1239. The Court also found that use of the term “moral certainty” in the Nebraska jury instruction on reasonable doubt did not violate due process because the jurors were further instructed that they had to have an abiding conviction as to the defendant’s guilt; the instruction equated doubt sufficient to preclude moral certainty with doubt that would cause a reasonable person to hesitate to act; and the jurors were told that they should be governed solely by the evidence introduced before them, without indulging in speculation, conjectures, or inferences not supported by the evidence. Id. at 21-22, 114 S.Ct. 1239. The Court distinguished these jury instructions from the instruction found unconstitutional in Cage, noting that in Cage the instruction merely told the jury that they had to be morally certain of the defendant’s guilt without any additional explanations that would give meaning to the phrase “moral certainty.” Id.

The Sixth Circuit has held that the use of the term “moral certainty” does not automatically render a jury instruction on reasonable doubt fundamentally unfair. In Austin v. Bell, 126 F.3d 843, 847 (6th Cir.1997), the Sixth Circuit Court of Appeals ruled that a reasonable doubt instruction, which stated that moral certainty was required to convict the defendant on a criminal charge, did not impermissibly lower the burden of proof. The instruction in that case included an additional statement that reasonable doubt was engendered by “an inability to let the mind rest easily” after considering all of the proof in the case. Id. That language, the court believed, lent content to the phrase “moral certainty.” Id. In context, the court concluded, the phrase did not create a reasonable likelihood that the jury impermissibly applied the jury instruction. Id.; see also Cone v. Bell, 243 F.3d 961, 971-72 (6th Cir.2001), reversed on other grounds by Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

This Court b