Bruce GUILMETTE, Petitioner-Appellee, v. Carol R. HOWES, Warden, Respondent-Appellant, 591 F.3d 505

ROGERS, J., delivered the opinion of the court, in which COOK, J., joined. MARTIN, J. (pp. 512-17), delivered a separate dissenting opinion. OPINION ROGERS, Circuit Judge. A Michigan jury convicted petitioner Bruce Guilmette of first-degree home invasion. In a petition for a writ of habeas corpus, Guilmette alleges that his trial attorneys provided constitutionally ineffective assistance. The district court found that this claim was not procedurally defaulted and that petitioner’s counsel were ineffective, and the district court therefore granted petitioner a conditional writ.

Because our precedents dictate that petitioner procedurally defaulted his ineffective assistance of counsel claim, and because petitioner has not established cause and prejudice for that default, habeas relief was not warranted in this case. At approximately noon on January 7, 1999, Joan McCormick was alone in her home in Howell, Michigan. A man walked past her window, approached her front door, and then repeatedly rang the doorbell. McCormick did not answer the door. The man went out past a van he had parked in McCormick’s driveway, and she lost sight of him for a few minutes.

He then returned to the front door, and, after again repeatedly ringing the doorbell, began banging on the door. After what McCormick described as “a lot” of such banging, she saw her doorknob move, and then the locked door came “crashing open.” McCormick screamed and attempted to run away from the door. She tripped and fell, and when she then glanced back at the door, the man had disappeared from the doorway. From her window, McCormick saw the man circle the van from the passenger side to the driver side, enter the van, and drive away. McCormick identified the van as a gray Chevy Astro with a red pinstripe.

Just after she fell, McCormick called 911 and described both the man and his vehicle to the operator. Trooper Jennifer Coulter responded to the call, and when she arrived at McCormick’s residence, Coulter noticed footprints in the snow leading up to the front door. After interviewing McCormick, Coulter photographed the best footprint she could find. Later that day, McCormick independently photographed a footprint in the snow on the threshold of her doorway. McCormick identified the petitioner, Bruce Guilmette, out of two photographic lineups during the next few weeks. Guilmette was charged with home invasion.

At the preliminary hearing on February 24, 1999, McCormick stated that Guilmette resembled the man she had seen at her door but said that Guilmette’s brother, who was present at the hearing, bore a similar resemblance. She also described the man at her door as having hair that protruded from underneath his hat, probably by one or two inches. At Guilmette’s trial for first-degree home invasion, McCormick testified to the events of January 7 and stated that the man at her door “look[ed] a lot like” Guilmette. She also testified that the man she identified in the lineups — Guilmette—was the man at her house.

A police officer testified that McCormick had identified a picture of Guilmette’s vehicle, a gray Astro with a red pinstripe, as the vehicle in which the man had driven away. The prosecution additionally introduced into evidence both Trooper Coulter’s photograph of the footprint leading up to the house and McCormick’s photograph of the footprint on the threshold of her home. The defense maintained that Guilmette had been mistakenly identified, relying primarily on three arguments.

First, the defense presented evidence that the driver-side door on Guilmette’s van was inoperable, such that Guilmette could not have entered the van in the way that McCormick described. Second, the defense offered testimony and photographic evidence that, at least as of Christmas, 1998, Guilmette had short hair. They argued that this contradicted McCormick’s testimony from the preliminary hearing that the man at her door had longer hair.

Finally, the defense offered a time-stamped receipt from a methadone clinic that indicated that Guilmette was at that clinic, which was approximately fifty miles from McCormick’s home, at 12:38 p.m. on the day of the alleged home invasion. In rebuttal, the state presented evidence that Guilmette had previously pled guilty to a home invasion and larceny with a similar modus operandi and in connection with which Guilmette had been driving a similarly described van. The court instructed the jury to consider this testimony only for identification or as evidence of a scheme and pattern.

The prosecution also elicited testimony that the clock in the computer that generated the methadone clinic receipts was often inaccurate and that nineteen days after the incident, the clock was running eighteen minutes slow. The prosecution finally offered testimony of a detective who had driven from McCormick’s home to the methadone clinic in forty-five minutes, driving eighty to eighty-five miles per hour on the freeway and despite a six minute delay for road construction. The jury convicted Guilmette of first-degree home invasion, and Guilmette was unsuccessful in his direct appeal.

On state collateral review, Guilmette argued for the first time that his trial counsel were ineffective for failing to discover that the photographs of the two footprints admitted at trial apparently did not match. He argued that this constitutionally ineffective representation was prejudicial because the footprint from the door’s threshold was the only proof of entry, a required element of firsG — degree home invasion. See Mich. Comp. Laws § 750.110a(2).

The state trial court on collateral review denied this claim on the merits, finding that focusing on identification-rather than on whether there was entry- — was a matter of trial strategy. Both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal, issuing identical orders citing Guilmette’s “failure to meet the burden of establishing entitlement to relief under [Mich. Ct. R. 6.508(D) ].” Guilmette then filed a habeas petition seeking relief for the same alleged violation.

The district court granted a conditional habeas writ, finding that Guilmette’s trial counsel were constitutionally ineffective because they failed to investigate the differences between the two photographs. The warden now appeals, arguing that this ineffective assistance claim was procedurally defaulted and that Guilmette has failed to establish cause and prejudice for that default.

Guilmette’s ineffective assistance of counsel claim is procedurally defaulted because, although the state trial court on collateral review addressed the merits of Guilmette’s claim, both the state appellate and supreme courts denied the claim pursuant to Mich. Ct. R. 6.508(D). “When a habeas petitioner fails to obtain consideration of a claim by a state court ... due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner’s claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review.” Willis v.

Smith, 351 F.3d 741, 744 (6th Cir.2003) (internal quotation marks omitted). Guilmette did not raise his ineffective assistance of trial counsel claim on direct appeal, as required by Mich. Ct. R. 6.508(D)(3). Our decision in Munson v. Kapture, 384 F.3d 310 (6th Cir.2004), requires the conclusion that the Michigan courts enforced Rule 6.508(D)(3) in this case and thus that Guilmette’s claim is procedurally defaulted. In Munson, as in the present case, the petitioner did not raise certain claims on direct appeal. 384 F.3d at 312-13.

In both cases, the petitioner then raised the claims in a state trial court on collateral review, and the state trial court denied the claims on the merits. Id. at 313. Then in both cases, the state appellate and state supreme courts each denied leave to appeal in brief orders, stating that the petitioner had “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” Id. In Munson, we held that Rule 6.508(

D) constituted an adequate and independent state ground and thus held the claims to be procedurally barred. Id. at 315. No relevant fact distinguishes Munson from the present case, and thus Guilmette’s claim is similarly procedurally defaulted. This result is consistent with Abela v. Martin, 380 F.3d 915 (6th Cir.2004). In that case, both the Michigan trial court and the Michigan Court of Appeals denied the petitioner’s collateral claims on the merits before the Michigan Supreme Court denied review pursuant to Mich. Ct. R. 6.508(D). Id. at 920. In part because the lower state courts had “repeatedly ruled on the merits,” we concluded in Abe-la that the invocation of Mich. Ct. R. 6.508(

D) by only the Michigan Supreme Court did not sufficiently indicate that the court was invoking a procedural bar, and thus that the claim was not procedurally defaulted. Id. at 923-24. In the present case, however, both the state appellate and state supreme court denied leave to appeal pursuant to Rule 6.508(D); this case is thus squarely controlled by our decision in Munson. This conclusion is supported by five of this court’s other cases, three of which post-date Abela, and all of which hold that habeas claims were procedurally defaulted in situations materially indistinguishable from the present case.

See Alexander v. Smith, 311 Fed.Appx. 875 (6th Cir.2009) (post-Abela); Spencer v. Booker, 254 Fed.Appx. 520 (6th Cir.2007) (post-Abela); McCray v. Metrish, 232 Fed.Appx. 469 (6th Cir.2007) (post-Abela); Burroughs v. Makowski, 282 F.3d 410 (6th Cir.2002) (pre-Abela); Luberda v. Trippett, 211 F.3d 1004 (6th Cir.2000) (pre-Abela). In each, the state trial court on collateral review denied the petitioner’s claims on the merits, and then both the state appellate and state supreme courts denied the claims pursuant to Mich. Ct. R. 6.508(D).

See Alexander, 311 Fed.Appx. at 879; Spencer, 254 Fed.Appx. at 521-22; McCray, 232 Fed.Appx. at 477; Burroughs, 282 F.3d at 412; Luberda, 211 F.3d at 1006. We held that the petitioner’s claims were procedurally defaulted in each ease. Alexander, 311 Fed.Appx. at 884; Spencer, 254 Fed.Appx. at 524-25; McCray, 232 Fed.Appx. at 478; Burroughs, 282 F.3d at 414; Luberda, 211 F.3d at 1008. The binding nature of these precedents — procedurally closer than Abe-la to the instant case, and contained in published opinions issued both before Abe-la (Burroughs and Luberda) and after Abela (Munson) — is inescapable.

Because Guilmette’s ineffective assistance of counsel claim is procedurally defaulted, he must show cause and prejudice to excuse that default. Munson, 384 F.3d at 315. He cannot do so because his trial counsel were not constitutionally ineffective and because any error by those counsel did not prejudice him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Guilmette argues correctly that ineffective assistance of appellate counsel can constitute cause to overcome a procedural default. Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir.2005).

Where ineffective assistance of appellate counsel is presented as a possible cause to excuse the default of a claim of ineffective assistance of trial counsel, a court in some circumstances “must examine the merits of [the petitioner’s] ineffective-assistance-of-trial-counsel claim.” Ivory v. Jackson, 509 F.3d 284, 294 (6th Cir.2007). Guilmette argues that his trial counsel were ineffective for failing to notice that the two footprint photographs introduced by the prosecution at trial- — one taken by Trooper Coulter and the other taken by McCormick on the threshold of her door — apparently did not match.

He argues that had his counsel noticed this discrepancy, they could have argued that the footprint on the threshold was not Guilmette’s, and thus that the state had failed to establish entry. See Mich. Comp. Laws § 750.110a(2). This argument fails because it relies upon the improbable suggestion that Guilmette could have broken open McCormick’s door without satisfying the element of entry, which is defined in Michigan as “any part of defendant’s body [being] introduced within the house.” See People v. Gillman, 66 Mich.App. 419, 239 N.W.2d 396, 401 (1976).

Guilmette’s counsel had a promising mistake-of-identity defense based upon the victim’s questionable identification, Guilmette’s plausible alibi, and the inconsistency between the victim’s description of Guilmette’s actions and the testimony regarding Guilmette’s inoperable driver-side door. By contrast, a defense on the element of entry required the jury to believe that Guilmette could break open a locked door without having any part of his body enter into the house.

Guilmette’s trial counsel were not required to make — or to investigate facts relevant to — this implausible argument, in order to be effective. “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052.

Because the mistaken identity defense was strong, and because a reasonable attorney could have concluded that an entry defense was futile, a choice to conduct only a limited investigation does not rebut the strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052; see also Bobby v. Van Hook, — U.S. -, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009).

The implausibility of this argument also precludes a finding of prejudice, for there is not “a reasonable probability” that “the result of the proceeding would have been different” if counsel had presented this argument to the jury. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. This is all the more true because, if Guilmette’s counsel had contested entry, it might have either removed the focus from or undermined the credibility of the defense’s misidentification argument. See United States v. Ryan, 23 F.Supp.2d 1044, 1050-51 (S.D.Iowa 1998).

Indeed, statements by Guilmette’s trial counsel during closing argument support the conclusion that a focused identification defense was chosen in part to support the credibility of the defense. In that closing, Guilmette’s counsel relied specifically on the consistency of the defense’s case as a reason for the jury to find it credible. Attorney Gates-man argued, “At no time has anyone on the defense stood up, tried to persuade, presented to you, presented a question to a witness, that would try to persuade you that what Ms.

McCormick said up there happened around January 7, 1999, didn’t happen.” Defense counsel also argued that the prosecution’s inconsistent alternative arguments undermined the credibility of the case against Guilmette. In rebutting the defense’s alibi evidence, the prosecution suggested both that someone might have impersonated Guilmette at the methadone clinic to generate the receipt and that, even if the receipt was genuine, Guilmette could have traveled from the crime scene to the methadone clinic in the time between the crime and the issuance of the receipt.

In response to these alternative arguments, the defense counsel stated, “And I think the prosecution thinks he was at the methadone clinic. And I’ll tell you why I think they think that. Because, they investigated and they presented their positions on what we’ve presented.” In other words, the fact that the prosecution presented detailed evidence and arguments regarding the time line undermines the credibility of their argument that someone else might have been impersonating Guilmette at the clinic.

Together, these arguments suggested that the jury ought to find the defense more credible because defense counsel, unlike the prosecutor, had refrained from making inconsistent alternative arguments. Counsel’s limited investigation of the evidence related to entry “must be directly assessed for reasonableness” in light of this strategy, “applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Applying that deference, it cannot be said that counsel’s choices constituted “errors so serious that counsel [were] not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. This conclusion does not conflate the element of entry with the element of breaking. It is possible to satisfy the element of breaking without satisfying the element of entry in other factual situations, as when someone uses a crowbar to break into a dwelling. Cf. People v. Rodg ers, No. 225338, 2001 WL 1321598, at *1 (Mich.Ct.App.

Oct.26, 2001) (relying upon eyewitness testimony to establish entry where circumstantial evidence indicated that the defendants used a crowbar to break into a garage). But this does not apply to the present case, where there is no suggestion that the perpetrator used any implement. A defendant would have to be extraordinarily — indeed, impossibly — graceful to break down a door manually without “any part of [that] defendant’s body [being] introduced within the house.” See Gillman, 239 N.W.2d at 401.

To recognize this is not to conflate breaking with entering generally, but rather is only to notice that breaking may not be possible without entering under certain facts. For these reasons, Guilmette has not shown that his trial counsel were ineffective, and he cannot establish that he was prejudiced by the alleged ineffectiveness. His appellate counsel was therefore also not ineffective, for “ ‘appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.’ ” Willis, 351 F.3d at 745 (quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.2001)).

Guilmette has therefore failed to establish cause and prejudice for his procedural default of his claim of ineffective assistance of trial counsel, and thus he is barred from raising that issue on habeas review. We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. . The trial court dismissed one of Munson’s claims as procedurally defaulted, but the court denied the remainder of the claims, including a claim that Munson’s "trial counsel rendered ineffective assistance,” on the merits. Munson, 384 F.3d at 313. .

The warden suggests that the ground relied upon by the state appellate court is irrelevant because the state supreme court order is an explained order and because federal courts should only examine lower court opinions when state supreme court orders are not explained. Cf. Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir.2000). The warden thus argues that Guilmette’s claim would be procedurally defaulted even if the state appellate court had considered the merits of Guilmette’s claim of ineffective assistance of counsel. Cf. Alexander v. Smith, 311 Fed.Appx. 875, 883 (6th Cir.2009).

We decline to resolve this issue because its resolution is not necessary to decide the present case. . We respect the reasoning of the court in Abela, and the forceful restatement of that reasoning by our dissenting colleague in this case. On a clean slate we might well apply such reasoning here. We are not in a position to do so, however, because of the compelling nature of binding precedent. We cannot escape such compulsion by ignoring cases or disregarding the stated facts of such cases.

Luberda, a published opinion of this court preceding Abela, clearly states that the state trial court in Luberda's case did not rely upon Mich. Ct. R. 6.508(D). Luberda, 211 F.3d at 1006. In Munson, a published opinion of this court decided after Abela, four out of five of the claims — -including claims specifically raised on the federal appeal — -had been denied by the state trial court “for reasons other than Munson's failure to raise them earlier.’’ Munson, 384 F.3d at 313.