Bourne v. Curtin, No. 09-2131 (6th Cir. 2012)
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In 2002 defendant was tried in Michigan for the stabbing death of a police officer after a traffic stop. The jury sent a note to the judge asking to re-hear testimony from five witnesses. Without consulting with counsel, the judge denied the request. Defendant was convicted and exhausted appeals without raising the court's failure to consult with the parties before denying the request. State courts also rejected collateral attacks that did raise the issue. The district court denied a petition for habeas corpus, holding that defendant procedurally defaulted all his grounds for relief, except for his ineffective-assistance argument, because he did not raise them on direct appeal. The court rejected the ineffective-assistance argument on the merits. The Sixth Circuit affirmed. Defendant made no argument that he suffered actual harm from the failure to consult the parties; the trial court had good reason to conclude that the request to re-hear testimony was unreasonable. Not all communications between a judge and jury are critical or per se harmful. The state court reasonably concluded that defendant failed to demonstrate his appellate counsel's deficiency.
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