GEORGE CARAM STEEH, District Judge.
This matter has come before the Court on petitioner Samuel Dreall Caston's petition for the writ of habeas corpus under 28 U.S.C. § 2254. The pro se petition challenges petitioner's convictions for felonious assault, Mich. Comp. Laws §750.82, possession of marijuana, second offense, Mich. Comp. Laws, § 333.7403(2)(d); Mich. Comp. Laws § 333.7413(2), and domestic violence, Mich. Comp. Laws § 750.812. The convictions arose from an altercation between petitioner and his former girlfriend, LaShawna Hubbard, in 2014. Petitioner's sole ground for habeas relief is that the trial court erred when it ruled that Hubbard was unavailable at trial and that the prosecutor could admit in evidence Hubbard's testimony from petitioner's preliminary examination.
The State asserts in an answer to the petition that petitioner's claim is procedurally defaulted and that most of his claim is not cognizable on habeas review. The State also contends that the state appellate court's decision was reasonable and not contrary to Supreme Court precedent.
The Court agrees that petitioner's claim does not warrant habeas corpus relief. Accordingly, the petition will be denied.
Petitioner waived his right to a jury and was tried before a circuit court judge in Oakland County, Michigan on March 23, 2015. The Michigan Court of Appeals summarized the trial proceedings and facts as follows:
Petitioner did not testify or present any witnesses. His defense was that he argued with Hubbard, but did not hit her. He also maintained that the trial court lacked jurisdiction over him and that he was not guilty of anything.
The trial court found petitioner guilty, as charged, of felonious assault, possession of marijuana, and domestic violence. On April 29, 2015, the trial court sentenced petitioner as a fourth habitual offender to concurrent terms of two to fifteen years in prison for the felonious assault, 163 days in jail for possession of marijuana, second offense, and 93 days in jail for domestic violence, with jail credit of 163 days for each of the three offenses.
Petitioner raised his current claim in the Michigan Court of Appeals in an appeal as of right. The Court of Appeals affirmed his convictions and sentences,
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)."
28 U.S.C. § 2254(d).
"[A] federal habeas court may not issue the writ 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."
"AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,'
"[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."
As noted above, petitioner claims that the trial court erred when it (1) determined that Hubbard was unavailable to testify at trial and (2) ruled that the prosecutor could admit in evidence Hubbard's testimony from petitioner's preliminary examination. Petitioner contends that the trial court abused its discretion when it determined that the police made a good-faith effort to produce Hubbard for trial. Petitioner also contends that the admission of Hubbard's prior testimony violated his State and Federal constitutional right to confront the witnesses against him.
The Michigan Court of Appeals reviewed petitioner's claim for plain error because petitioner did not preserve the claim for appellate review by making the same argument in the trial court. The Court of Appeals also determined that petitioner forfeited his claim regarding the right of confrontation by making threatening and manipulative telephone calls to Hubbard, thereby rendering Hubbard unavailable to testify at trial.
The State argues that petitioner procedurally defaulted his claim. A procedural default is "a critical failure to comply with state procedural law."
The state procedural rule in question here is Michigan's contemporaneous-objection rule, which requires defendants in criminal cases to preserve their appellate claims by objecting on the same ground in the trial court.
Factor two also is satisfied because the Michigan Court of Appeals enforced the contemporaneous-objection rule. The Court of Appeals stated that petitioner did not properly preserve his claim by: (1) challenging the admission of Hubbard's preliminary examination testimony on the ground that the prosecution had not shown due diligence; and (2) asserting that he was being denied his constitutional right to confront the witnesses against him.
The third procedural-default factor is satisfied if the state procedural rule in question was an adequate and independent state ground for denying review of a federal constitutional claim. "The adequacy of a state procedural bar turns on whether it is firmly established and regularly followed; a state rule is independent if the state court actually relies on it to preclude a merits review."
"Michigan's contemporaneous-objection rule is both a well-established and normally enforced procedural rule,"
The fourth factor requires a habeas petitioner to show "cause" for his state procedural error and resulting prejudice. Petitioner has not alleged that "cause and prejudice" excuse his procedural default. The Court, therefore, deems the "cause and prejudice" argument abandoned.
In the absence of "cause and prejudice," a habeas petitioner may pursue a procedurally defaulted claim if he can demonstrate that failure to consider his claim will result in a fundamental miscarriage of justice.
Petitioner contends in a reply to the State's answer to the habeas petition that the prosecution failed to disclose Hubbard's outstanding warrant on a charge of felonious assault. See Petitioner's reply brief, ECF No. 11. Petitioner maintains that this was a miscarriage of justice because evidence of the warrant for Hubbard's arrest could have resulted in a different disposition of his case.
Petitioner has not submitted any proof that Hubbard had an outstanding warrant for her arrest. Even if there was an actual warrant for her arrest, the warrant obviously is not new evidence, because petitioner alleges that the warrant was the reason Hubbard did not appear at his trial.
The warrant also does not establish petitioner's innocence on the assault and domestic violence charges, as there was no evidence justifying his violent conduct toward Hubbard. Although Hubbard testified at the preliminary examination that she had a can of mace in her pocket during the incident with petitioner, she claimed that she did not use it or even take the mace out of her pocket. She merely threatened to use the mace if petitioner tried to hit her with the bat. (12/3/14 Prelim. Examination Tr. at 26-31.)
Petitioner has not supported his constitutional claim with new and reliable evidence of actual innocence. Therefore, he has failed to show that a miscarriage of justice would occur if the Court failed to address the merits of his claim. His claim is procedurally defaulted because all four factors of a procedurally-defaulted claim are satisfied.
Petitioner's claim also lacks substantive merit. The alleged violations of state law are not a basis for granting the writ of habeas corpus because "federal habeas corpus relief does not lie for errors of state law."
The Sixth Amendment to the United States Constitution guarantees defendants in criminal cases the right to be confronted with the witnesses against them. U.S. CONST. amend. VI. This right is "applicable to the States through the Fourteenth Amendment,"
At the beginning of petitioner's trial, the prosecutor stated that Hubbard had been served with a subpoena to appear in court, but that she was not there yet. The prosecutor then stated that she would attempt to introduce Hubbard's testimony from the preliminary examination if Hubbard did not appear at trial. The trial court responded to the prosecutor's comments by asking Detective Devon Benson to call Hubbard and tell her to come to court immediately. (3/23/15 Trial Tr. at 13-15.)
After the parties made their opening statements, Detective Benson informed the trial court that he had been unable to reach Hubbard or leave a message for her because her voice mail was full. The trial court chose to proceed with other witnesses in the hope that Hubbard would still appear. Id. at 26-27.
Detective Benson subsequently testified about his efforts to obtain Hubbard's presence at trial. He explained that he had informed Hubbard of the trial date by phone and that he subsequently served her with a subpoena on March 13, 2015, which was ten days before trial. Benson also informed Hubbard that he would arrange transportation for her if she needed a ride. The two of them agreed to meet with the prosecutor on March 19, 2015, but Hubbard canceled the meeting that morning. Detective Benson tried to call Hubbard several times after March 19, but the calls would go straight to her voice mail, and he was not able to leave a message because the voice mail was full. Id. at 134-36.
Continuing, Detective Benson testified that, on the day of trial, two detectives went to Hubbard's place of employment and were told that Hubbard no longer worked there. The detectives also were unable to find Hubbard at her mother's home or at the home of petitioner's sister, where Hubbard was staying on the date of the incident with petitioner. Id. at 137-38.
On cross-examination, Detective Benson admitted that he had not looked for Hubbard's mailing address or any Secretary of State records and that he did not talk with Hubbard's mother in the previous few days. Id. at 149. However, he claimed that Hubbard had never refused to testify and that there was nothing else he could do to try to locate her. Id. at 149-50.
Public safety officer Anthony Carignan also attempted without success to locate Hubbard before trial, id. at 62-63, and the prosecutor added that she spoke with Hubbard on March 19, 2015, which was the date set for their meeting with Detective Benson. Hubbard offered to re-schedule their meeting, but also informed the prosecutor that she did not want to appear in court and testify. She did not return the prosecutor's subsequent calls. Id. at 152-53.
The trial court determined that the prosecution had shown due diligence in trying to obtain Hubbard's presence and that Hubbard was unavailable. The trial court also ruled that the prosecutor could admit in evidence Hubbard's testimony from petitioner's preliminary examination. Id. at 157-58.
The Michigan Court of Appeals affirmed the trial court's ruling, stating that the trial court had properly concluded that the prosecution and police acted with due diligence in securing Hubbard's attendance at trial. The Court of Appeals also stated that Hubbard's testimony at the preliminary examination was correctly admitted in evidence under the Michigan Rules of Evidence.
Petitioner contends that the trial court erred in finding that Hubbard was unavailable. However, a witness is unavailable for purposes of the Confrontation Clause if "the prosecutorial authorities made a good-faith effort to obtain [the witness's] presence at trial,"
The state courts' conclusions — that the prosecution and police had shown due diligence and that Hubbard was unavailable — were reasonable because an officer personally served Hubbard with a subpoena and other officers attempted to contact and find Hubbard. Further, Hubbard's evasive conduct, as well as her comment to the prosecutor about not wanting to appear in court, indicate that she did not intend to testify against petitioner. The Court, therefore, defers to the state appellate court's reasonable decision regarding Hubbard's unavailability and concludes that the unavailability prong of the
The "prior opportunity" prong also is satisfied, because petitioner had a full opportunity to confront Hubbard at his preliminary examination. This is not a case in which the opportunity to cross-examine the complaining witness was somehow deficient. Petitioner's former attorney thoroughly cross-examined and re-cross-examined Hubbard at the preliminary examination. See 12/3/14 Prelim. Examination Tr. at 36-51, 54-55.
The Court concludes that petitioner's right of confrontation was not violated by the state courts' determination that Hubbard was unavailable and that her prior testimony was admissible in evidence. Petitioner, therefore, is not entitled to relief on his constitutional claim.
Petitioner's sole ground for relief is procedurally defaulted and meritless. Further, the state appellate court's decision was not so lacking in justification that there was an error beyond any possibility of fair-minded disagreement. The Court, therefore, denies the petition for a writ of habeas corpus with prejudice.
The Court also declines to issue a certificate of appealability because petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Reasonable jurists, moreover, could not disagree with the Court's resolution of petitioner's claim, nor conclude that the claim deserves encouragement to proceed further.
The Court, nevertheless, will allow petitioner to appeal this decision in forma pauperis because petitioner was allowed to proceed in forma pauperis in this Court, see, ECF No. 6, and an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).
