We "also must not indulge in hindsight, but must evaluate the reasonableness of counsel's performance within the context of the circumstances at the time of the alleged errors." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996), overruled on other grounds, In re Abdur' Rahman, 392 F.3d 174 (6th Cir. 2004) (en banc). Defendants alleging the ineffective assistance of counsel bear "a heavy burden of proof."
In Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Supreme Court held that when determining whether a defendant was deprived of the Sixth Amendment right to an impartial jury, a reviewing court need look only at the jury that actually sat, not at the jurors excused for cause or by peremptory challenge. Moreover, in McQueen v. Scroggy, 99 F.3d 1302 (1996), the Sixth Circuit explained: Even assuming that the inclusion of [the allegedly impartial juror] on the jury would have been unconstitutional, the fact remains that [the juror] was excluded by peremptory challenge. [The petitioner] is unable to demonstrate what constitutional harm resulted from this.
Credibility findings made by state courts are entitled to the presumption of correctness. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997), overruled on other grounds by In re Abdur' Rahman, 392 F.3d 174 (6th Cir. 2004), judgment vacated, 545 U.S. 1151 (2005); Smith v. Jago, 888 F.2d 399, 407 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). II. PROCEDURAL HISTORY
28 U.S.C. ยง 2254(d)(1) and (2). Credibility findings made by state courts are entitled to the presumption of correctness. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004); Smith v. Jago, 888 F.2d 399, 407 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). II. PROCEDURAL HISTORY
The Sixth Circuit has framed the question as whether, "[o]n balance," counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. McQueen v. Scroggy, 99 F.3d 1302, 131112 (1996) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). A court reviewing an ineffective assistance claim need not address both components of the inquiry if the petitioner fails to make a sufficient showing as to one.
The Strickland test requires that a defendant demonstrate two essential elements: (1) counsel's performance was deficient, i.e., counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment, and (2) counsel's deficient performance prejudiced the defense, i.e., deprived the defendant of a fair trial rendering the outcome of the trial unreliable. Id. at 687-88, 104 S.Ct. 2052; McQueen v. Scroggy, 99 F.3d 1302, 1310-11 (6th Cir. 1996), cert. denied, 520 U.S. 1257, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997); Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th Cir. 1992). See also Flippins v. United States, 808 F.2d 16, 17-18 (6th Cir.), cert. denied, 481 U.S. 1056, 107 S.Ct. 2197, 95 L.Ed.2d 852 (1987).
In addition, credibility findings made by state courts are entitled to the presumption of correctness. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997), overruled on other grounds by In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004); Smith v. Jago, 888 F.2d 399, 407 (6th Cir. 1989), cert. denied, 495 U.S. 961 (1990). The Sixth Circuit has previously found that the appellant "bears a heavy burden" when insufficiency of the evidence is claimed, United States v. Vannerson, 786 F.2d 221, 225 (6th Cir.), cert. denied, 476 U.S. 1123 (1986), and "[i]t is for the jury, not [a reviewing] court, to assess the credibility of the witnesses presented at trial."
Strickland requires a defendant to demonstrate two essential elements: (1) counsel's performance was deficient ( i.e., counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment), and (2) counsel's deficient performance prejudiced the defense ( i.e., deprived the defendant of a fair trial rendering the outcome of the trial unreliable). Id. at 687-88; see also McQueen v. Scroggy, 99 F.3d 1302, 1310-11 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997); Simsv. Livesay, 970 F.2d 1575, 1579-81 (6th Cir. 1992); Flippins v. United States, 808 F.2d 16, 17-18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987).
Strickland requires a defendant to demonstrate two essential elements: (1) counsel's performance was deficient ( i.e., counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment), and (2) counsel's deficient performance prejudiced the defense ( i.e., deprived the defendant of a fair trial rendering the outcome of the trial unreliable). Id. at 687-88; see also McQueen v. Scroggy, 99 F.3d 1302, 1310-11 (6th Cir. 1996), cert. denied, 520 U.S. 1257 (1997); Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th Cir. 1992); Flippins v. United States, 808 F.2d 16, 17-18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987). To establish his attorney was not performing within the range of competence demanded of attorneys in criminal cases, a defendant must demonstrate the attorney's representation fell below an objective standard of reasonableness.
Once a claim is properly before a federal court on habeas corpus review, the federal court must "presume a state trial or appellate court's conclusions as to facts are correct unless the petitioner demonstrates by convincing evidence that the facts are erroneous under one of the eight conditions enumerated in 28 U.S.C. ยง 2254(d)(1)-(8)." McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996) (citing Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (per curiam) (applying pre-AEDPA law)). Based on pre-AEDPA law, this presumption of correctness applies unless the petitioner can establish: