CAROL POOLE v. ANTHONY STEWART (2017)

ORDER

Carol Poole, a Michigan prisoner proceeding pro se, appeals the district court's denial of her petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Currently pending are Poole's application for a certificate of appealability (“COA”) and motion to proceed in forma pauperis. See Fed. R. App. P. 22(b).

On September 22, 2006, Poole's two-year-old foster daughter, Allison, died from a skull fracture and a brain injury that resulted from injuries sustained in the family home. The state charged Poole with felony murder, involuntary manslaughter, and first-degree child abuse. At trial, the prosecutor argued that Poole intentionally inflicted these injuries on Allison, while Poole maintained that she accidentally dropped Allison over the second-floor banister during a game of “whirly bird,” which involved her holding Allison and spinning around. In 2008, a jury convicted Poole of the lesser-included offense of second-degree murder, involuntary manslaughter, and first-degree child abuse. The trial court vacated the involuntary-manslaughter conviction and sentenced Poole to concurrent terms of imprisonment of twenty to thirty-five years for the murder conviction and ten to fifteen years for the child-abuse conviction. The Michigan Court of Appeals affirmed Poole's convictions on appeal, People v. Poole, No. 284245, 2009 WL 5150240 (Mich. Ct. App. Dec. 29, 2009), and the Michigan Supreme Court denied her application for leave to appeal and her motion for reconsideration. People v. Poole, 787 N.W.2d 496 (Mich. 2010) (denying reconsideration); People v. Poole, 783 N.W.2d 345 (Mich. 2010) (denying leave to appeal).

In August 2011, Poole filed a motion for relief from judgment in the trial court. The court denied relief, and the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal. People v. Poole, 829 N.W.2d 206 (Mich. 2013).

Poole then filed a § 2254 petition in federal district court. In it, she raised the following grounds for relief: (1) the trial court erroneously failed to suppress statements she had given to police that were involuntary and made without having been read her rights as required by Miranda v. Arizona, 384 U.S. 436 (1966); (2) there was insufficient evidence to support her convictions; (3) the prosecutor engaged in misconduct; (4) the trial court improperly admitted into evidence other acts of misconduct, specifically, testimony concerning uncharged acts of child abuse; (5) the trial court improperly denied her motion for a directed verdict; (6) the trial court erred by instructing the jury on the lesser-included offense of second-degree murder; (7) the court improperly failed to instruct the jury on the specific-intent element of first-degree child abuse and refused to adequately instruct the jury on the mens rea elements of felony murder, second-degree murder, and involuntary manslaughter; (8) the trial court improperly admitted expert-witness testimony that was not based on medical or scientific principles; (9) trial counsel provided ineffective assistance by failing to object to instances of prosecutorial misconduct, failing to object to the court's jury instructions, and failing to impeach the testimony of a police officer; (10) appellate counsel provided ineffective assistance; and (11) the cumulative errors at trial deprived her of her rights to a fair trial and due process. The district court denied Poole's petition, concluding that claims one through seven and ten through eleven either lacked merit or failed to state a cognizable claim and that claims eight and nine were procedurally defaulted. The district court declined to issue a COA. Poole now asks this court to issue a COA for all of her claims.

To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must demonstrate “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). When the district court denies a habeas petition on a procedural ground without reaching the underlying constitutional claims, a COA should issue when the petitioner demonstrates “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

I. Claims Denied on the Merits

A. Admission of Statements to Police

On the night of the incident, at approximately 2:00 a.m., Officer Derek Torolski was dispatched to Poole's home. Poole told him that Allison was not breathing, and Torolski saw Allison lifeless in her bed. After Allison was taken to the hospital in an ambulance, Torolski drove Poole to the hospital. Two detectives eventually arrived at the hospital and spoke to Poole. Detective Pomorski testified at trial that Poole first told them that Allison was injured as a result of thrashing around in her bed. After further questioning, Poole then told the detectives that she believed that Allison had fallen in the bathtub and hit her head. When the detectives pursued further questioning and told Poole that they did not believe her, Poole then told them that Allison had fallen from the bathroom vanity. Again, Pomorski told Poole that her story was not believable. At that point, Poole stated, “I killed my daughter,” and told the officers that Allison had gone over the handrail from the second floor to the first floor. Doctors then came into the room, and the detectives took Poole to Allison's room. Torolski eventually took Poole to the police station where she again spoke with Pomorski and other detectives. During the interview, Poole stated that Allison was injured while they were playing whirly bird on the second-floor landing. Poole stated that, after the fall, she went downstairs, looked at Allison, determined that she was okay, and eventually put her to bed. After the interview, Poole was taken back to the hospital to be with Allison. The following day, Poole was brought back to the police station where she memorialized the whirly-bird story in a written statement.

In her first habeas claim, Poole asserted that the trial court erred by denying her motion to suppress the statements she had made to the police while at the hospital. She maintained that she was in police custody while there, and that the police were therefore required to give her Miranda warnings before taking any statement from her.

Miranda applies only to suspects who are subjected to “custodial interrogation.” 384 U.S. at 444. “[C]ustodial interrogation” is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. “[T]he only relevant inquiry” for determining whether an individual is in custody “is how a reasonable man in the suspect's position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984). This presents two questions: “[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995) (footnote omitted). This court “consider[s] several factors when determining whether an interrogation was of a custodial nature, including (1) the location of the interview; (2) the length and manner of the questioning; (3) whether there was any restraint on the individual's freedom of movement; and (4) whether the individual was told that he or she did not need to answer the questions.” United States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010).

The evidence established that Poole accepted Torolski's offer of a ride to the hospital; she was never handcuffed, searched, or arrested while at the hospital; she was allowed to keep her cell phone; she consented to be interviewed by the detectives; she was interviewed in a room large enough to hold twelve people; doctors came in and out of the room during the interview; detectives never told her that she could not see Allison until she gave a statement; she was permitted to see Allison while accompanied by the officers; she was not continuously interviewed during the entire time she was at the hospital; she went to the bathroom when she wanted; she was never prevented from leaving the room; and she was not arrested until several days after talking to the police. In light of these facts, the Michigan Court of Appeals found that neither the fact that an officer drove her to the hospital nor the presence of police officers outside the rooms she was in at the hospital infringed upon her freedom to the point that she was “in custody” for Miranda purposes. Poole, 2009 WL 5150240, at *8. The court noted that Poole was never aware that Torolski was under an order to stay with her until detectives arrived and that she was never formally arrested or subjected to a restraint of movement associated with a formal arrest. Id. The district court held that, under these circumstances, a reasonable person would not have felt that she was not free to leave. In light of the deference owed to the state court's ruling, see 28 U.S.C. § 2254(d), no reasonable jurist could disagree with the district court's rejection of this claim.

Although the Michigan Court of Appeals did not address this claim, the district court considered Poole's assertion that her statements, including the one made after she had been Mirandized, were not voluntary. To be admissible, a confession “must be free and voluntary; [and] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Bram v. United States, 168 U.S. 532, 542-43 (1897). In determining the voluntariness of a confession, it is necessary to examine the totality of the circumstances surrounding the confession. See United States v. Brown, 557 F.2d 541, 546 (6th Cir. 1977). A trial court should consider factors including “ ‘the crucial element of police coercion, the length of the interrogation, its location, its continuity, the defendant's maturity, education, physical condition and mental health,’ and whether the suspect was advised of his Miranda rights.” Brown v. Jackson, 501 F. App'x 376, 378 (6th Cir. 2012) (quoting Withrow v. Williams, 507 U.S. 680, 693-94 (1993)).

No reasonable jurist could debate the district court's conclusion that Poole's statements were voluntary. As the district court explained, “Poole was a 40-year-old, unimpaired, well-educated person who was not deprived of any necessities when she agreed to answer police questions at both the hospital and the police station,” the hospital interview lasted less than three hours and was not continuous, and, as for the statement made at the police station, Poole was read her Miranda rights. Poole argues that her statements were involuntary because, at the time of the statements, she had not slept for thirty-two hours; she was “suicidal, incoherent, confused, and experiencing Acute Stress Disorder”; she had been separated from the friend who was with her at the hospital; the detectives did not let her see Allison until she had given a statement; and the police “induced [her] statement by utilizing [her] fear and concern for Allison and medical help for Allison.” While Poole may have been in a distressed mental state at the time she was questioned, that fact alone does not render her statements involuntary. See Colorado v. Connelly, 479 U.S. 157, 164-65 (1986). In order for a confession to be found involuntary, a defendant must show that the police engaged in coercive conduct. See id. Poole argued that the police used coercive tactics to induce a statement from her, focusing primarily on her assertion that they kept her from seeing Allison until she gave them a statement. She points to nothing in the record, however, to support this conclusion. In fact, Pomorski testified that, when doctors came into the room where Poole was being interviewed to speak with her, Poole stated that she wanted to see Allison. The detectives then took her up to Allison's room. In the absence of any evidence to show that the police engaged in coercive conduct, Poole's claim does not deserve encouragement to proceed further.

B. Sufficiency of the Evidence

Poole's second claim challenges the sufficiency of the evidence to support her convictions. She argues that her “convictions are based on unreasonable inference and speculation” and that the medical and expert testimony did not establish the intent necessary to sustain her second-degree-murder and first-degree-child-abuse convictions.

In reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court may not “reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[E]ven were [the court] to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, [the court] must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable.” Id.; see 28 U.S.C. § 2254(d)(2).

Applying the above standard, the Michigan Court of Appeals explained that, although Poole argued that there was no evidence to establish intent, “the evidence of the serious nature of the victim's injuries, specifically a cracked skull, subdural hematomas, and fresh retinal hemorrhaging, and the force necessary to cause them, was sufficient evidence from which a rational jury could find the element of intent.” Poole, 2009 WL 5150240, at *9. The court noted that Poole had failed to seek medical treatment for Allison and cited the testimony of Dr. Leena Dev, the director of the Child Protective Team at the hospital where Allison was treated, who examined Allison at the hospital. Id. Dr. Dev concluded that Allison “was a victim of non-accidental trauma” and explained that she reached that conclusion because “none of the history provided matched the severity of her injury,” her injuries could not be explained by a medical condition, the onset of the injuries was sudden, and Poole's explanation of what had happened changed over a very short period of time. The court of appeals explained that intent could reasonably be inferred from the injuries themselves and from Poole's failure to seek prompt medical care for Allison. Id.

Poole's arguments in her habeas petition and her COA application merely reiterate her claim that the jury rejected at trial, i.e., that Allison was accidentally injured during a game of whirly bird. As the state court of appeals explained, Poole's arguments “presume[ ] first that the jury had to accept her theory.” Id. Moreover, her arguments ask this court to reweigh the evidence presented at trial, which is improper on habeas review. See Brown, 567 F.3d at 205. No reasonable jurist would disagree with the district court's conclusion that, viewed in a light most favorable to the prosecution, the evidence presented at trial—even if circumstantial—was sufficient to sustain her convictions. See Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th. Cir. 2010).

C. Prosecutorial Misconduct

In her third claim, Poole asserted that she was denied a fair trial due to improper and egregious misconduct on the part of the prosecutor. Specifically, she argued that the prosecutor engaged in misconduct by “mocking and commenting on [her] demeanor,” “mocking” a defense witness, commenting on her education and socioeconomic status, suggesting that defense counsel instructed her to “pretend cry,” and comparing her to a dog. The state appellate court, Poole, 2009 WL 5150240, at *1-5, and the district court denied Poole's claims on the merits.

“On habeas review, ‘[t]he relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the conviction a denial of due process.’ ” Bates v. Bell, 402 F.3d 635, 640-41 (6th Cir. 2005) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). If a prosecutor acted improperly, relief is available “only if the statements were so flagrant as to render the entire trial fundamentally unfair.” Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003).

On re-direct examination of one of the witnesses who had been at the hospital with Poole, the prosecutor asked about Poole's demeanor at the hospital and in the courtroom, which Poole characterized as an attempt to suggest that her crying was fake. The prosecutor asked, “Have you heard her go (Indicating) no tears and then stop?” The state appellate court concluded that the prosecutor's question did not deny Poole a fair trial, explaining that the court sustained counsel's objection to the question and later instructed the jury that counsel's questions are not evidence. Poole, 2009 WL 5150240, at *2. Given the isolated nature of the comment and the presumption that jurors follow the instructions given to them, see Richardson v. Marsh, 481 U.S. 200, 211 (1987), no reasonable jurist could disagree with the district court's denial of relief on this aspect of Poole's prosecutorial-misconduct claim.

During the prosecutor's cross-examination of defense expert Dr. Robert Rothfeder, defense counsel interjected and stated, “Judge, I think it should be noted for the record that Mr. Dorsey is like shaking his head at the doctor ․ I think a fair characterization of what Mr. Dorsey is doing is mocking this person ․ and ․ his behavior is becoming distracting to the jury.” Poole argued that “[t]hese antics were deliberate and meant to distract the jury while defense ․ witness was testifying.” Without pointing to other instances in the record, Poole asserted that this conduct was “continual and deliberate.” Again, the state appellate court rejected this claim, explaining that any prejudice was cured by the court's instructions to the jury concerning what constitutes evidence and that Poole failed to demonstrate any likelihood that the prosecutor's conduct affected the outcome of this trial. Poole, 2009 WL 5150240, at *2. Reasonable jurists could not debate the district court's rejection of this claim.

Next, Poole argued that, during his rebuttal argument, the prosecutor made improper remarks about her education and socioeconomic status, stating, for example, “This college educated, good job, suburban woman suddenly goes into a fog and didn't know what to do. That doesn't make any sense.” She also argued that the prosecutor improperly compared her to a dog, stating “[E]ven a dog with puppies would have given their [sic] child more attention than Carol Poole did.” The Michigan Court of Appeals concluded that these comments were not improper because they were made in response to defense counsel's arguments at closing. Poole, 2009 WL 5150240, at *3-5. The court noted that defense counsel had commented that Poole and her husband were both employed with good jobs and that Poole had passed extensive background checks and argued that Poole was a nurturing, patient, and loving mother. Id. at *4. The court also noted that the trial court sustained defense counsel's objection regarding the repeated comments about Poole's education and socioeconomic status on the ground that the comments had become redundant. Id. at * 5. Reasonable jurists would not disagree that the prosecutor's comments were within the “wide latitude” given to prosecutors to respond to defense counsel's arguments. Angel v. Overberg, 682 F.2d 605, 607-08 (6th Cir. 1982).

Finally, Poole argued that the prosecutor improperly suggested in his closing argument that defense counsel had coached her to cry during the trial. The prosecutor noted for the jury that Poole “never made a sound” during his opening statement, but then “[d]efense [c]ounsel got up, walked around, and he appeared to say something to her or touch her, and as soon [as] he got in front of you and started talking, she started—(indicating sobbing)—and no tears.” Although this court has suggested that comments about a defendant's demeanor are in fact constitutionally questionable, see Cunningham v. Perini, 655 F.2d 98, 100-01 (6th Cir. 1981), Poole has failed to make a substantial showing that reasonable jurists could debate the district court's conclusion that any error was corrected when the trial court instructed the jury that counsel's arguments do not constitute evidence.

Poole's claims of prosecutorial misconduct do not deserve encouragement to proceed further.

D. Other-Acts Evidence

Poole's next ground for relief asserted that the trial court erred by allowing the prosecution to introduce into evidence, pursuant to Michigan Rule of Evidence 404(b), testimony of two daycare workers concerning prior injuries suffered by Allison and Poole's explanation for those injuries. Because “[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence,” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), reasonable jurists could not disagree with the district court's rejection of this claim on the ground that it failed to state a cognizable claim for habeas relief.

E. Denial of Motion for a Directed Verdict

Poole next argued that the trial court erred by denying her motion for a directed verdict on the felony-murder and first-degree-child-abuse charges. As the Michigan Court of Appeals explained, Poole's argument as to both charges was “premised on the alleged lack of evidence of the specific intent required for a conviction of first-degree child abuse.” Poole, 2009 WL 5150240, at *11. Indeed, in her petition, she argued that “there was no evidence that one could even infer to satisfy the specific intent element of child abuse in the first degree and therefore the elements for felony murder.” Because there was sufficient evidence to support the child-abuse and second-degree-murder charges, as discussed above—and by extension the felony-murder charge, see People v. Maynor, 662 N.W.2d 468, 472 (Mich. Ct. App. 2003) (explaining that “felony murder is essentially second-degree murder, elevated by one of the felonies enumerated in [Mich. Comp. Laws] § 750.316,” which includes “[f]irst-degree child abuse”)—no reasonable jurist could disagree with the district court's conclusion that the denial of the motion for a directed verdict did not violate Poole's constitutional rights.

F. Jury Instructions

In her sixth and seventh claims, Poole argued that the trial court erred by instructing the jury on the lesser-included offense of second-degree murder, failing to instruct the jury on the specific-intent element of first-degree child abuse, and refusing to adequately instruct the jury on the mens rea elements of felony murder, second-degree murder, and involuntary manslaughter.

To obtain habeas relief on a challenge to a state trial court's jury instruction, a petitioner must show that “the challenged instruction ‘by itself so infected the entire trial that the resulting conviction violates due process.’ ” Hanna v. Ishee, 694 F.3d 596, 620 (6th Cir. 2012) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)). The jury instructions must have been so flawed as to render the entire trial fundamentally unfair. Hardaway v. Withrow, 305 F.3d 558, 565 (6th Cir. 2002).

First, reasonable jurists could not debate the district court's conclusion that the trial court's decision to instruct the jury on second-degree murder did not violate Poole's right to due process. Under Michigan law, while instruction on second-degree murder as a lesser-included offense of first-degree murder is not automatically required, it “is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it.” People v. Cornell, 646 N.W.2d 127, 139 (Mich. 2002). Here, the disputed factual element distinguishing the felony-murder and second-degree-murder charges was whether Poole committed the predicate felony of first-degree child abuse.

Second, the district court's ruling on Poole's claim concerning the trial court's failure to instruct the jury on specific intent for first-degree child abuse and to adequately instruct on the mens rea elements of the murder and manslaughter charges is not debatable. To the extent Poole asserted that the instructions were incorrect under state law, such an argument presents a state-law claim that is not cognizable on habeas review. See Estelle, 502 U.S. at 62. The Michigan Court of Appeals held that the trial court's instructions were proper under state law, Poole, 2009 WL 5150240, at *12, and this court must defer to that ruling. Moreover, Poole has not made a substantial showing that the instructions rendered her trial fundamentally unfair. She points out that the jury asked questions about the term “knowingly” as used in the instructions concerning first-degree child abuse and argues that, given the jury's confusion, the trial court should have instructed on specific intent. However, as the state appellate court explained, under Michigan law, “it is unnecessary to instruct a jury on specific intent for first-degree child abuse ‘as long as the jury is instructed that it must find that defendant either knowingly or intentionally caused the harm,’ which the trial court did in this case.” Poole, 2009 WL 5150240, at *12 (quoting People v. Maynor, 683 N.W.2d 565, 569 (Mich. 2004)). Poole's jury-instruction claims do not deserve encouragement to proceed further.

II. Procedurally Defaulted Claims

In her eighth claim, Poole argued that the trial court improperly admitted the testimony of Dr. Dev, the medical expert witness for the prosecution, because it was not based on medical or scientific principles. And in her ninth claim, Poole asserted that trial counsel provided ineffective assistance by failing to object to instances of prosecutorial misconduct, failing to object to the trial court's erroneous and confusing statements of law during jury deliberations, and failing to impeach the testimony of a police officer. The district court denied the claims as procedurally defaulted, observing that the Michigan courts had applied Michigan Court Rule 6.508(D)(3) to bar consideration of the claims. When a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice ․ or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Michigan Court Rule 6.508(D)(3) bars post-conviction relief on claims that “could have been raised on appeal from the conviction and sentence.” This court has held that Rule 6.508(D)(3) is an independent and adequate state ground for denying review of a federal constitutional claim. See Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005). Poole asserted habeas claims nine and ten for the first time in her motion for relief from judgment. The last state court decision denying relief on these claims came from the Michigan Supreme Court in a form decision stating that Poole “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Poole, 829 N.W.2d 206 (Mich. 2013). Because this court has held that such decisions citing Rule 6.508(D) are ambiguous as to whether they refer to procedural default or to denial of relief on the merits, Guilmette v. Howes, 624 F.3d 286, 289-92 (6th Cir. 2010) (en banc), this court must look to the last reasoned state court decision to determine the basis for the rejection of the claim, which, in this case, came from the trial court. In its order denying the motion, the trial court, citing Rule 6.508(D)(3), discussed the cause-and-prejudice standard that a movant must meet in order to advance claims that were not previously raised, addressed the merits of Poole's claims, and concluded that Poole failed to satisfy the cause-and-prejudice standard. Thus, the order makes clear that the court was denying relief on these two claims on procedural grounds.

Reasonable jurists could not debate the district court's procedural ruling as to either of these claims. To overcome a procedural default, a petitioner must show cause for his failure to raise the claims and prejudice arising therefrom, or that failing to review the claims would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. A fundamental miscarriage of justice requires a showing of actual innocence, which Poole has not made. See Dretke v . Haley, 541 U.S. 386, 393 (2004). Indeed, as the district court stated, Poole has admitted her involvement in Allison's death. Instead, Poole maintains that appellate counsel's ineffectiveness in failing to raise this claim on direct appeal excuses the default.

To establish ineffective assistance of appellate counsel, a defendant must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The performance inquiry requires the defendant to “show that counsel's representation fell below an objective standard of reasonableness.” Id. at 688. An attorney is not required “to raise every non-frivolous issue on appeal.” Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003). Indeed, “ ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). Where, as here, appellate counsel “presents one argument on appeal rather than another ․ the petitioner must demonstrate that the issue not presented ‘was clearly stronger than issues that counsel did present.’ ” Caver, 349 F.3d at 348 (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)).

Poole has not shown that her claim concerning Dr. Dev's testimony was “clearly stronger” than those raised on direct appeal. In denying Poole's motion for relief from judgment, the trial court explained that Dr. Dev's testimony that Allison's injuries were not accidentally caused was properly admitted under Michigan Rule of Evidence 702 because it was “rationally based on medical evidence as to the child's injuries considered in light of [Dr. Dev's] knowledge, skill, experience, training, and education.” Poole has not shown that this ruling was erroneous under state law, and in any event, a habeas court must defer to a state court's ruling on matters of state law. Further, even if Dr. Dev's testimony was improperly admitted, Poole has failed to establish that it rendered her trial fundamentally unfair. See Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). At trial, Poole's attorney conducted an extensive cross-examination of Dr. Dev and called an expert witness to counter Dr. Dev's testimony.

Nor has Poole demonstrated prejudice from appellate counsel's failure to raise Poole's claims that asserted ineffective assistance of trial counsel based on failure to object to alleged instances of prosecutorial misconduct and allegedly improper jury instructions and based on failure to impeach the testimony of a police officer. It is not debatable that Poole cannot “show a reasonable probability that, but for [her] counsel's defective performance, [she] would have prevailed on appeal.” Mapes v. Tate, 388 F.3d 187, 194 (6th Cir. 2004) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). Poole has failed to make a substantial showing of the denial of her right to effective assistance of appellate counsel to overcome the procedural default of her eighth and ninth claims.

In addition to asserting ineffective assistance of appellate counsel as cause to excuse the procedural default of her claims, Poole also raised it in her tenth claim as an independent ground for habeas relief. With respect to her claim concerning Dr. Dev's testimony, counsel cannot be deemed ineffective for failing to raise on appeal an issue that lacks merit. See Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). As for her trial-counsel claims, counsel cannot be expected to raise his own ineffectiveness on appeal. See Combs v. Coyle, 205 F.3d 269, 276 (6th Cir. 2000). Reasonable jurists could not debate the district court's denial of relief on Poole's ineffective-assistance-of-appellate-counsel claim.

III. Cumulative Error

Finally, Poole alleged that the cumulative errors at trial warrant habeas relief. No reasonable jurist would debate the district court's rejection of this claim on the ground that it does not state a cognizable claim for habeas relief. See Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002).

Accordingly, Poole's application for a COA is DENIED as to all claims. Her motion to proceed in forma pauperis is DISMISSED AS MOOT.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk