OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

LAWRENCE P. ZATKOFF, District Judge.

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Khalil Chahine was convicted of second-degree murder, MICH. COMP. LAWS § 750.317, assault with a dangerous weapon, MICH. COMP. LAWS § 750.82, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, in the Wayne County Circuit Court. He was sentenced to 20 to 30 years imprisonment on the murder conviction, a concurrent term of two to four years imprisonment on the assault conviction, and a consecutive term of two years imprisonment on the felony firearm conviction in 2005. In his pleadings, Petitioner raises claims concerning the exclusion of evidence and his right to present a defense, his right to confrontation, and the denial of a discovery request and his right to due process. Respondent has filed an answer to the petition contending that it should be denied. For the reasons stated, the Court denies the petition for a writ of habeas corpus and denies a certificate of appealability.

II. Facts and Procedural History

Petitioner's convictions arise from the shooting death of Paul Hallis and an assault upon Catherine Hallis in Dearborn, Michigan during the early morning hours of May 16, 2004. The Michigan Court of Appeals provided a factual overview of the case, which is presumed correct on habeas review, see Monroe v. Smith, 197 F.Supp.2d 753, 758 (E.D. Mich. 2001), aff'd. 41 F. App'x 730 (6th Cir. 2002), as follows:

People v. Chahine, No. 263429, 2007 WL 601599 *1 (Mich. Ct. App. Feb. 27, 2007) (unpublished).

Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals, essentially raising the same claims presented on habeas review. The court denied relief on those claims and affirmed Petitioner's convictions. Id. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Chahine, 480 Mich. 1168, 747 N.W.2d 226 (2008).

Petitioner, through counsel, thereafter filed his federal habeas petition raising the following claims as grounds for relief:

Respondent has filed an answer to the petition contending that it should be denied because the claims are not cognizable and/or lack merit.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this case because Petitioner filed his petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

28 U.S.C. § 2254(d) (1996).

A state court's decision is contrary to clearly established law if it "`applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

"[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,' and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court has recently held that "a state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), "a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state court's rejection of his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id.

Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. See Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court "has held on numerous occasions that it is not `an unreasonable application of clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court") (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) "does not require a state court to give reasons before its decision can be deemed to have been `adjudicated on the merits.'" Harrington, 131 S. Ct. at 785. Furthermore, it "does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the requirements of "clearly established law" are to be determined solely by Supreme Court precedent, the decisions of lower federal courts may be useful in assessing the reasonableness of the state court's resolution of an issue. See Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F.Supp. 354, 359 (E.D. Mich. 2002).

A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas review is "limited to the record that was before the state court." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011).

IV. Analysis

A. Exclusion of Statement as Substantive Evidence

Petitioner first asserts that he is entitled habeas relief because the state courts erred and denied him due process and the right to present a defense by ruling that a statement made by his brother-in-law, Ali El-Ozeir, while in custody in Lebanon, was not admissible as substantive evidence at trial. Respondent contends that this claim is not cognizable and/or lacks merit.

The Michigan Court of Appeals described the statements as follows:

Chahine, 2007 WL 601599 *3.

Petitioner's defense to the charges was that he was not the shooter and that the shooting was done in self-defense/defense of others because the victims had firearms and shot at them. Prior to trial, Petitioner moved to admit El-Ozeir's third statement in which El-Ozeir claimed that he, and not Petitioner, was the shooter and that he acted in self-defense. The trial court initially ruled that the statement was admissible under Michigan Rule of Evidence 804(b)(3). On interlocutory appeal, the Michigan Court of Appeals peremptorily reversed that decision and ruled that the statement was inadmissible. The court explained:

Id. at *2 (quoting People v. Chahine, Mich. Ct. App. No. 260932, unpublished order issued on March 15, 2005). Consequently, El-Ozeir's out-of-court statements were not admitted as substantive evidence at trial.

Those statements, however, were deemed admissible for impeachment purposes during trial after the prosecutor "opened the door" for their use by asking a police detective if he had "any evidence" to suggest that someone other than Petitioner did the shooting and the detective responded "none." The trial court allowed Petitioner to impeach the detective with El-Ozeir's statements, but continued to deny his request to admit the statements as substantive evidence. Id.

Petitioner challenges the state courts' evidentiary rulings. Alleged trial court errors in the application of state evidentiary law are generally not cognizable as grounds for habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). "Trial court errors in state procedure and/or evidentiary law do not rise to the level of federal constitutional claims warranting relief in a habeas action, unless the errors render the proceeding so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment." McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting McGuire, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 2007)). Accordingly, to the extent that Petitioner asserts that the state courts erred under Michigan law, he fails to state a claim upon which habeas relief may be granted. State courts are the final arbiters of state law and the federal courts will not intervene in such matters. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).

Petitioner nonetheless asserts that he was denied due process and the right to present a defense. The right of an accused to present a defense has long been recognized as "a fundamental element of due process." Washington v. State, 388 U.S. 14, 19 (1967); see also Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006) (state rule excluding evidence of third party guilt based solely on strength of prosecution's case violated defendant's right to present a defense); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (exclusion of hearsay statements critical to defense which "bore persuasive assurances of trustworthiness," coupled with refusal to permit cross-examination of the declarant, violated defendant's right to due process). However, "a defendant's right to present evidence is not unlimited, but rather it is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998). A defendant "does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissable under standard rules of evidence." Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)); see also Holmes, 547 U.S. at 326 (recognizing that "well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury"). State rules excluding evidence from criminal trials "do not abridge an accused's right to present a defense so long as they are not `arbitrary' or `disproportionate to the purposes they are designed to serve.'" Scheffer, 523 U.S. at 308 (internal citations omitted). "A defendant's interest in presenting . . . evidence may thus bow to accommodate other legitimate interest in the criminal trial process." Id. When deciding if the exclusion of evidence infringes upon a defendant's rights, the question is not whether the excluded evidence would have caused the jury to reach a different result. The question is whether the defendant was afforded "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)); see also Chambers, 410 U.S. at 302.

On direct appeal, the Michigan Court of Appeals denied relief on this claim applying the law of the case doctrine to affirm its prior ruling and finding that Petitioner failed to establish a constitutional violation. The court explained in relevant part:

Chahine, 2007 WL 601599 at *4.

The Michigan Court of Appeals' decision is neither contrary to Supreme Court precedent nor an unreasonable application thereof. Petitioner has failed to establish that the state courts' rulings denied him due process. El-Ozeir's third statement was inadmissible hearsay under the Michigan Rules of Evidence and did not fit within the exception provided for statements against penal interest. See Mich. R. Evid. 804(b)(3). The statement did not subject El-Ozeir to criminal liability in the United States because he fled the country and was in Lebanon when he made the statement and he was not subject to extradition. While the defense asserted that El-Ozeir would be subject to prosecution in Lebanon, counsel offered no valid evidence to support that assertion or show what punishment he could face. Moreover, El-Ozeir's third statement was not truly a statement against penal interest given that he asserted that he did not mean to hit anyone and claimed that the shooting was done in self-defense, which would absolve him of criminal liability. See, e.g., United States v. Shryock, 342 F.3d 948, 981-82 (9th Cir. 2003) (discussing similar federal evidentiary rule). Additionally, El-Ozeir's third statement was not trustworthy given that it was inconsistent with his prior statements in several respects and it directly conflicted with his second statement in which he denied being the shooter. The statement was further subject to question because of the familial relationships among the parties involved in the incident, i.e., El-Ozeir may have made his statement to assist his brother-in-law in defending against a murder charge and possible life sentence in the United States. Consequently, the state court's refusal to admit the statement as substantive evidence was reasonable and a matter within its discretion under state evidentiary rules. No due process violation occurred.

Second, the state courts' evidentiary rulings did not deny Petitioner the right to present a defense. Although the state courts did not allow El-Ozeir's out-of-court statements to be admitted as substantive evidence, the trial court allowed them to be used to impeach Detective Muscat's testimony, consistent with state evidentiary rules. The jury was thus aware that El-Ozeir made a statement claiming he was the shooter and that the shooting was done in self-defense and could consider the statement for impeachment purposes. More importantly, Petitioner was able to challenge the prosecution's witnesses and the state's evidence through cross-examination. He also had ample opportunity to present admissible evidence, including his own testimony, that he was not the shooter and/or that the shooting was done in self-defense. In fact, the defense was able to highlight Salwa Ali's testimony that she spoke to the victim shortly before the shooting and he thought that Petitioner was driving the other vehicle, as well as her testimony that the victim had a history of confronting Petitioner and was often armed with a weapon. Petitioner thus had a meaningful opportunity to present a complete defense at trial. See, e.g., Wynne v. Renico, 606 F.3d 867, 870-71 (6th Cir. 2010) (state trial court did not violate petitioner's right to present a defense at murder trial by excluding propensity evidence of third party guilt where defendant had opportunity to present other, proper evidence in support of defense theory).

Petitioner cites Holmes, supra and Chambers, supra, in support of his constitutional claim. However, nothing in those cases requires that a trial court allow the admission of untrustworthy hearsay statements as evidence of third party guilt in order to satisfy the Constitution. See, e.g., United States v. Phillips, 198 F. App'x 558, 561 (7th Cir. 2011) (citing Holmes and Chambers). In Holmes, the Supreme Court held that a defendant's due process rights were violated by a state court's application of an evidentiary rule which precluded the defendant from introducing evidence of third-party guilt if the prosecution had introduced forensic evidence that, if believed, strongly supported a guilty verdict. The Court found that the rule improperly focused on the strength of the prosecution's case instead of the probative value or the potential adverse effects of admitting the defense's third-party guilt evidence. Holmes, 547 U.S. at 321, 331. In Chambers, a murder defendant called as a witness a man who had previously confessed to the murder. When the witness repudiated his confession, the defendant was not allowed to examine him as an adverse witness based upon a state rule which barred parties from impeaching their own witnesses. The defendant was also not allowed to introduce evidence that the witness had made self-incriminating statements to other people because state hearsay rules did not include an exception for statements against penal interest. The Supreme Court held that the limitation on cross-examination combined with the exclusion of the witness's out-of-court statements resulted in a constitutional violation. Chambers, 410 U.S. at 294-97, 302. In this case, the state courts refused to admit El-Ozeir's statements as substantive evidence based upon Michigan's hearsay rule and a determination that those statements did not fall within the exception for statements against penal interest. The state courts did not run afoul of Holmes or Chambers. See, e.g., Inman v. Warden, No. 11-12417, 2012 WL 413993, *2-3 (11th Cir. Feb. 10, 2012) (unpublished case denying habeas relief on similar claim). Petitioner has failed to establish that the state courts' evidentiary rulings were contrary to or an unreasonable application of Supreme Court precedent or that they otherwise violated his constitutional rights.

Lastly, even if the state courts erred in refusing to allow El-Ozeir's third statement to be admitted as substantive evidence at trial, such error was harmless. For purposes of federal habeas review, a constitutional error that implicates trial procedures is considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117-18 (2007) (confirming that Brecht standard applies in "virtually all" habeas cases); Ruelas v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is "always the test" in this circuit). The prosecution in this case presented significant evidence of Petitioner's guilt at trial. In particular, witnesses testified that Petitioner, not El-Ozeir, was feuding with the victim over a woman, three eyewitnesses identified Petitioner as the shooter, all of the occupants of the victims' car denied having or firing any weapons, the police did not find shell casings in the victims' vehicle nor bullet holes in the perpetrators' vehicle, the police recovered gunshot residue from Petitioner's shirt which was consistent with firing a gun, and a fellow inmate testified that Petitioner admitted shooting the victim. Additionally, the record reveals that the trial court instructed the jury on the charge of aiding and abetting. Thus, even if the jury believed that El-Ozeir was the shooter, they could still have convicted Petitioner as an aider and abettor to the crime given that he drove the vehicle, that he and/or El-Ozeir was armed with a gun, that he engaged the victims' vehicle during the confrontation, and that he fled the scene with El-Ozeir after the shooting. Given such circumstances, any error arising from the state courts' evidentiary ruling was harmless beyond a reasonable doubt. Habeas relief is not warranted on this claim.

B. Limitation on Impeachment Evidence

Petitioner next asserts that he is entitled to habeas relief because the trial court violated his rights to present a defense and confrontation by not allowing defense counsel to present evidence about the circumstances surrounding El-Ozeir's statements in order to impeach Detective Muscat after Muscat commented on the credibility of El-Ozeir's statements. Respondent contends that this claim lacks merit.

During trial, the trial court ruled that the prosecutor "opened the door" to use El-Ozeir's out-of-court statements for impeachment purposes after the prosecutor asked Detective Muscat the following question:

Chahine, 2007 WL 601599 at *2. While being questioned about El-Ozeir's statements, Detective Muscat testified that he did not believe that El-Ozeir's third statement was credible in order to explain his answer that there was no evidence that someone other than Petitioner was the shooter. Id. at *5. Defense counsel then sought to admit evidence of the circumstances surrounding El-Ozier's third statement. The trial court refused to allow such testimony, finding that it was precluded by the Michigan Court of Appeals' interlocutory order concerning the statements.

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315 (1973). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness's story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness." Id. at 314. The right of cross-examination, however, is not absolute. "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. VanArsdall, 475 U.S. 673, 679 (1986); see also Norris v. Schotten, 146 F.3d 314, 329-30 (6th Cir. 1998). The Confrontation Clause "guarantees an opportunity for cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

The Michigan Court of Appeals considered this issue on direct appeal and denied relief. The court stated:

Chahine, 2007 WL 601599 at *5.

The Michigan Court of Appeals' decision is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. The circumstances surrounding El-Ozeir's statements were not relevant given that those statements were only deemed admissible for impeachment purposes. Detective Muscat's credibility, not El-Ozeir's credibility, was at issue. The trial court properly limited the inquiry into such matters for the purpose of clarifying Detective Muscat's statement and to allow for impeachment of his testimony. The court did not allow questioning about the circumstances surrounding El-Ozeir's statements because it would have been a collateral, time-consuming matter. The trial court's ruling was reasonable and within the bounds of state evidentiary rules. More importantly, for purposes of habeas review, defense counsel had the opportunity to impeach Detective Muscat with El-Ozeir's statements and to otherwise question him about his investigation of the shooting. Defense counsel was not precluded from presenting relevant and admissible evidence in support of Petitioner's defense that he was not the shooter and/or that the shooting was justified. The trial court adequately protected Petitioner's rights of confrontation and to present a defense at trial. Petitioner has failed to establish a constitutional violation.

Moreover, even if the trial court erred in limiting the impeachment testimony, Petitioner is not entitled to relief because any such error was harmless. As explained supra, for purposes of federal habeas review, a constitutional error that implicates trial procedures is harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Confrontation errors, like other trial errors, are subject to harmless error analysis. See Delaware v. VanArsdall, 475 U.S. at 684. In this case, the trial court allowed defense counsel to impeach Detective Muscat with El-Ozeir's statements themselves and to inquire about the police investigation of the crime. The jury thus had sufficient basis to evaluate Detective Muscat's credibility. Additionally, as discussed supra, the prosecution presented significant evidence of Petitioner's guilt at trial, including the ongoing dispute between Petitioner and the victim, the eyewitness testimony identifying Petitioner as the shooter, the gunshot residue on Petitioner's clothing, the testimony and crime scene evidence indicating that gunshots were fired from Petitioner's vehicle and not the victim's vehicle, and Petitioner's own admission to a fellow inmate that he committed the shooting. Given such circumstances, any error in refusing to allow defense counsel to inquire into the circumstances surrounding El-Ozeir's statement was harmless under Brecht. Habeas relief is not warranted on this claim.

C. Non-Disclosure of Evidence Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court erred in denying his discovery request for audiotapes which were given to the prosecutor during the course of trial and may have contained information helpful to the defense. Respondent contends that this claim lacks merit.

During trial, federal authorities seized audiotapes from Petitioner's father's restaurant business pursuant to a search warrant issued in an unrelated investigation of Petitioner's father. Several of those tapes were given to the Wayne County Prosecutor's Office because they contained information relevant to Petitioner's trial — namely conversations between Petitioner's father and potential defense witnesses. Defense counsel asked to review the tapes or have the court conduct an in camera review. The trial court denied both requests, but ordered the prosecutor to disclose any exculpatory information found on the tapes, which he agreed to do. The court also precluded the prosecutor from using the tapes to impeach defense witnesses at trial. The Michigan Court of Appeals described the tapes as follows:

Chahine, 2007 WL 601599 at *7.

It is well-settled that there is no general constitutional right to discovery in a criminal case. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988). The United States Supreme Court has held that the prosecutor's failure to disclose evidence favorable to the defense constitutes a denial of due process "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). To find a Brady violation, not only must the evidence be suppressed, but the suppressed evidence must be material and favorable to the accused. Elmore v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985). Favorable evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 432-36 (1995). Material evidence is that which is "so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce." United States v. Clark, 988 F.2d 1459, 1467 (6th Cir. 1993). The duty to disclose favorable evidence includes the duty to disclose favorable impeachment evidence. Bagley, supra; Giglio v. United States, 405 U.S. 150, 154-55 (1972).

The Brady rule only applies to "the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103 (1976); see also Mullins v. United States, 22 f.3d 1365, 1370-71 (6th Cir. 1994). Moreover, a Brady violation does not occur if previously undisclosed evidence is disclosed during trial unless the defendant is prejudiced by its non-disclosure. See United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986). Thus, in order to establish a Brady violation, a petitioner must show that: (1) the evidence was suppressed by the prosecution in that it was not known to the petitioner nor available from another source; (2) the evidence was favorable or exculpatory; and (3) the evidence was material to the question of the petitioner's guilt. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); see also Strickler v. Greene, 527 U.S. 263, 281-282 (1999). The petitioner bears the burden of establishing a Brady violation. Carter, 218 F.3d at 601.

The Michigan Court of Appeals denied relief on this claim, stating in relevant part:

Chahine, 2007 WL 601599 at *8-9.1

The state courts' denial of relief on this claim is neither contrary to Supreme Court precedent nor an unreasonable application of federal law or the facts. Petitioner has not met his burden of establishing a Brady violation. First, Petitioner has failed to show that the evidence was "suppressed" given that the tapes contained recorded conversations between Petitioner's father and potential defense witnesses. While the tapes themselves were within the prosecutor's control after being seized, the substance of the conversations was available to Petitioner through his father and the recorded parties. Second, Petitioner has failed to show that the tapes contained favorable or exculpatory information. The tapes themselves were inadmissible hearsay (barring an exception), and it appears from the record that the tapes, at best, contained information which could have been used to impeach defense witnesses. Such information was neither exculpatory nor favorable to the defense. Additionally, the trial court required the prosecutor to disclose any exculpatory evidence, which he agreed to do, and barred the prosecutor from using the tapes to impeach defense witnesses at trial. Given such circumstances, Petitioner has failed to establish a Brady violation. He has also failed to show that he was denied the right to present a defense. Petitioner was aware of the tapes at the time of trial and knew that they contained conversations between his father and potential defense witnesses. He could have simply asked his father and/or those witnesses to testify at trial. He has not shown that having access to the tapes would have benefitted his defense. Petitioner has thus failed to establish that the prosecutor committed a Brady violation or otherwise violated his constitutional rights. Habeas relief is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas relief on the claims contained in his petition. Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal the Court's dispositive decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "A petitioner satisfies this standard by demonstrating 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). Having considered the matter, the Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right as to his habeas claims. Accordingly, the Court DENIES a certificate of appealability.

IT IS SO ORDERED.