DENISE PAGE HOOD, Chief District Judge.
Jerome L. Knight, ("Petitioner"), confined at the Ionia Correctional Facility in Ionia, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for first-degree premeditated murder, M.C.L.A. 750.316(1)(a), and possession of a firearm during the commission of a felony, M.C.L.A. 750.227b(1). For the reasons that follow, the petition for a writ of habeas corpus is
Petitioner was convicted following a jury trial in the Wayne County Circuit Court, in which he was jointly tried with co-defendant Gregory Rice. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, since they are presumed correct on habeas review. See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
People v. Knight, No. 320631, 2015 WL 5657382, at *1-2 (Mich. Ct. App. Sept. 24, 2015) (internal footnote omitted).
The conviction was affirmed. Id., lv. den. 499 Mich. 916, 877 N.W.2d 878 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:
A state court's decision is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. 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." Id. at 410-11.
The Supreme Court explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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, 559 U.S. 766, 773 (2010) ((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "[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, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain habeas relief in federal court, a state prisoner is required to 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." Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Although the Michigan Court of Appeals reviewed and rejected a portion of petitioner's third and fourth claims under a plain error standard because petitioner failed to preserve a portion of these claims as a constitutional issue at the trial court level, the AEDPA deference applies to any underlying plain-error analysis of a procedurally defaulted claim. See Stewart v. Trierweiler, 867 F.3d 633, 638(6th Cir. 2017).
Petitioner argues that the prosecution presented insufficient evidence to establish his identity as the perpetrator. Petitioner also claims that there was insufficient evidence of premeditation and deliberation to support his conviction for first-degree premeditated murder.
It is beyond question that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re Winship, 397 U.S. 358, 364 (1970). But the crucial question on review of the sufficiency of the evidence to support a criminal conviction is, "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). "[F]ederal courts are not required to address a proceduraldefault issue before deciding against the petitioner on the merits." Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). "Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law." Lambrix, 520 U.S. at 525. Petitioner's unpreserved claims are related to the preserved portions of his third and fourth claims. Because the same legal analysis applies to both the preserved and unpreserved portions of his third and fourth claims, it would be easier to simply address the merits of the unpreserved claims. (1979). A court need not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19 (internal citation and footnote omitted) (emphasis in the original).
When considering a challenge to the sufficiency of the evidence to convict, the reviewing court must give circumstantial evidence the same weight as direct evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993). "Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (internal quotation omitted); see also Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir. 2008) ("A conviction may be sustained based on nothing more than circumstantial evidence."). Moreover, "[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508 n.17 (1957)); see also Holland v. United States, 348 U.S. 121, 140 (1954) (circumstantial evidence is "intrinsically no different from testimonial evidence," and "[i]f the jury is convinced beyond a reasonable doubt, we can require no more"); Harrington, 562 U.S. at 113 ("sufficient conventional circumstantial evidence" supported the verdict).
A federal habeas court cannot overturn a state court decision that rejects a sufficiency of the evidence claim simply because the federal court disagrees with the state court's resolution of that claim. Instead, a federal court may grant habeas relief only if the state court decision was an objectively unreasonable application of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011). "Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold." Id. For a federal habeas court reviewing a state court conviction, "the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 656 (2012). A state court's determination that the evidence does not fall below that threshold is entitled to "considerable deference under [the] AEDPA." Id.
Finally, on habeas review, a federal court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor was observed at trial. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must defer to the fact finder for its assessment of the credibility of witnesses. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
The Michigan Court of Appeals rejected petitioner's sufficiency of evidence claim as follows:
People v. Knight, 2015 WL 5657382, at *3-5.
Under Michigan law, "[T]he identity of a defendant as the perpetrator of the crimes charged is an element of the offense and must be proved beyond a reasonable doubt." Byrd v. Tessmer, 82 F. App'x 147, 150 (6th Cir. 2003) (citing People v. Turrell, 25 Mich.App. 646, 181 N.W.2d 655, 656 (1970)). Identity of a defendant can be inferred through circumstantial evidence. See Dell v. Straub, 194 F.Supp.2d 629, 648 (E.D. Mich. 2002). Eyewitness identification is not necessary to sustain a conviction. See United States v. Brown, 408 F.3d 1049, 1051 (8th Cir. 2005); Dell v. Straub, 194 F. Supp. 2d at 648.
To convict a defendant of first-degree murder in Michigan, the state must prove that a defendant's intentional killing of another was deliberated and premeditated. See Scott v. Elo, 302 F.3d 598, 602 (6th Cir. 2002) (citing People v. Schollaert, 194 Mich.App. 158; 486 N.W.2d 312, 318 (1992)). The elements of premeditation and deliberation may be inferred from the circumstances surrounding the killing. See Johnson v. Hofbauer, 159 F.Supp.2d 582, 596 (E.D. Mich. 2001) (citing People v. Anderson, 209 Mich.App. 527, 537; 531 N.W.2d 780 (1995)). Premeditation may be established through evidence of the following factors:
Cyars v. Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004); Anderson, 209 Mich. App. at 527.
Premeditation and deliberation may be inferred from the type of weapon used and the location of the wounds inflicted. See People v. Berry, 198 Mich.App. 123, 128; 497 N.W.2d 202 (1993). Use of a lethal weapon will support an inference of an intent to kill. Johnson, 159 F. Supp. 2d at 596 (citing People v. Turner, 62 Mich.App. 467, 470; 233 N.W.2d 617 (1975)). Finally, premeditation and intent to kill may be inferred from circumstantial evidence. See DeLisle v. Rivers, 161 F.3d 370, 389 (6th Cir. 1998).
To support a finding under Michigan law that a defendant aided and abetted in the commission of a crime, the prosecutor must show that:
Riley v. Berghuis, 481 F.3d 315, 322 (6th Cir. 2007) (citing People v. Carines, 460 Mich. 750, 757-58; 597 N.W.2d 130 (1999)).
In order to be convicted under Michigan law of first-degree premeditated murder under an aiding and abetting theory, the prosecutor is required to prove that at the time of the killing the defendant either had the premeditated and deliberate intent to kill the victim or that he participated knowing that the co-defendant possessed this specific intent. Puckett v. Costello, 111 F. App'x 379, 382 (6th Cir. 2004) (quoting People v. Youngblood, 165 Mich.App. 381, 418 N.W.2d 472, 475 (1988)).
In order to be guilty of aiding and abetting under Michigan law, the accused must take some conscious action designed to make the criminal venture succeed. See Fuller v. Anderson, 662 F.2d 420, 424 (6th Cir. 1981). Aiding and abetting describes all forms of assistance rendered to the perpetrator of the crime and comprehends all words or deeds which might support, encourage, or incite the commission of the crime. People v. Turner, 213 Mich.App. 558, 568; 540 N.W.2d 728 (1995).
To be convicted of aiding and abetting, the defendant must either possess the required intent to commit the crime or have participated while knowing that the principal had the requisite intent; such intent may be inferred from circumstantial evidence. See Long v. Stovall, 450 F.Supp.2d 746, 753 (E.D. Mich. 2006); People v. Wilson, 196 Mich.App. 604, 614; 493 N.W.2d 471 (1992). The intent of an aider and abettor is satisfied by proof that he knew the principal's intent when he gave aid or assistance to the principal. People v. McCray, 210 Mich.App. 9, 14; 533 N.W.2d 359 (1995). An aider and abettor's state of mind may be inferred from all of the facts and circumstances, including close association between the defendant and the principal, the defendant's participation in the planning and execution of the crime, and evidence of flight after the crime. Turner, 213 Mich. App. at 568-69.
The Michigan Court of Appeals reasonably concluded that there was sufficient evidence presented to establish petitioner's identity as one of the perpetrators and that he acted with premeditation and deliberation when he aided and abetted in the victim's murder.
In the present case, there was sufficient evidence for a rational trier of fact to conclude that petitioner and Hill had a contentious relationship, that petitioner previously threatened to kill Hill numerous times, that petitioner threatened to kill Hill the day before she died, that petitioner solicitated Coleman to kill Hill, and when Coleman refused, petitioner acted with premeditation and deliberation when he provided money for Coleman to bail Rice out of jail in exchange for Rice killing Hill. Parneisha Jerry testified that two and a half months prior to Hill's murder, she and Hill were out at a night club when petitioner pulled up in a Bronco and yelled out the window to Hill, that he hated her and that he was going to kill her. (ECF 6-5, PageID.476-479, 493-495). Edward Petty also testified that he was present, on another occasion, when petitioner rode by in his Bronco, rolled down his window, and said to Hill "I'll kill you, bitch." (ECF 6-7, PageID.994-995).
Petitioner's prior threats to kill the victim was evidence to permit a rational trier of fact to conclude that petitioner was the person who assisted in the murder of the victim. See Pinchon v. Myers, 615 F.3d 631, 643-44 (6th Cir. 2010). Evidence that petitioner had prior disputes with the victim supports a reasonable inference that the subsequent shooting was premeditated. Scott, 302 F.3d at 603. Furthermore, other acts evidence admitted under 404(b) evidence established that petitioner previously tried to solicit Mr. Coleman to kill the victim, which is further evidence establishing that petitioner planned the murder of Hill. See Jamison v. Collins, 100 F.Supp.2d 647, 707 (S.D. Ohio 2000), aff'd, 291 F.3d 380 (6th Cir. 2002), as amended on denial of reh'g (July 11, 2002). See also Belanger v. Stovall, No. 07-CV-11336, 2009 WL 2390539, at *18 (E.D. Mich. July 31, 2009) (evidence that petitioner solicited a friend to murder the victim before her husband agreed to do so and that defendant encouraged her husband to kill the victim supported a finding of premeditation and deliberation)).
Petitioner's animosity towards the victim, the fact that Rice provided information to Colman about the killing that only the perpetrator himself would have known, and that Coleman had previously been solicited to kill Hill by petitioner would permit a rational trier of fact to conclude that petitioner had planned and orchestrated with Rice the murder of Hill, so as to support his convictions. See Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir. 2008). The fact that petitioner and his co-defendant acted in concert is further evidence of premeditation. See e.g. People v. Jackson, 292 Mich.App. 583, 589-90, 808 N.W.2d 541 (2011).
Because there were multiple pieces of evidence to establish petitioner's identity as one of the perpetrators of the homicide, the Michigan Court of Appeals did not unreasonably apply Jackson v. Virginia in rejecting petitioner's sufficiency of evidence claim. See Moreland v. Bradshaw, 699 F.3d 908, 919-21 (6th Cir. 2012).
A federal court's review on habeas is very deferential to the state courts regarding sufficiency of evidence claims. This Court cannot say that the Michigan Court of Appeals' rejection of petitioner's sufficiency of evidence claim resulted in a decision that was contrary to, or involved an unreasonable application of Jackson. Durr v. Mitchell, 487 F.3d 423, 448 (6th Cir. 2007). "While there may have been other possible conclusions that the jury could have drawn from the evidence, a determination of premeditation `beyond a reasonable doubt' does not require a jury to find that the evidence eliminates every other reasonable theory except that presented by the prosecution." Titus v. Jackson, 452 F. App'x 647, 650 (6th Cir. 2011).
Finally, to the extent that petitioner challenges the credibility of the prosecution witnesses, he would not be entitled to relief. Attacks on witness credibility are simply challenges to the quality of the prosecution's evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002). An assessment of the credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats petitioner's claim. Id. Any insufficiency of evidence claim that rests on an allegation of the witnesses' credibility, which is the province of the finder of fact, does not entitle a habeas petitioner to relief. See Tyler v. Mitchell, 416 F.3d 500, 505 (6th Cir. 2005). Petitioner is not entitled to relief on his first claim.
Petitioner next contends that the trial court erred in permitting the prosecutor to introduce Rodney Coleman's out of court statement made to Stephanie Harris to bolster Coleman's testimonial credibility.
The admission of a prior consistent statement when the declarant is available for cross-examination at trial, as was the case here, is not a question that rises to the level of a constitutional violation for purposes of habeas corpus relief. See United States ex. rel. Gonzalez v. DeTella, 918 F.Supp. 1214, 1222 (N.D. Ill. 1996) (internal citations omitted). Indeed, there is no violation of the Sixth Amendment's Confrontation Clause when the witness testifies at trial and is subject to unrestricted cross-examination. United States v. Owens, 484 U.S. 554, 560 (1988). As the Supreme Court has explained, "where the declarant is not absent, but is present to testify and to submit to cross examination, our cases, if anything, support the conclusion that the admission of his out of court statements does not create a confrontation clause problem." California v. Green, 390 U.S. 149, 162 (1970). In this situation, "the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements." Owens, 484 U.S. at 560 (internal citations omitted).
Mr. Coleman testified at trial and was subjected to cross-examination. Ms. Harris also testified at petitioner's trial in conformance with Coleman's testimony. (ECF 6-7, PageID.975). Both Mr. Coleman and Ms. Harris were available for cross-examination and the jury observed their demeanor.
Because Harris and Coleman were subject to cross-examination at petitioner's trial, the admission of Coleman's out of court statement presented no Confrontation Clause violations. Id. Moreover, there is "no Supreme Court decision holding that the improper use of a witness's prior consistent statements violates the Constitution." Drain v. Woods, 902 F.Supp.2d 1006, 1037 (E.D. Mich. 2012); aff'd, 595 F. App'x 558, 561 (6th Cir. 2014). Because the admission of the prior consistent statement did not deprive petitioner of a fundamentally fair trial, petitioner is not entitled to habeas relief on his second claim. See Benton v. Booker, 403 F. App'x 984, 986 (6th Cir. 2010).
Petitioner alleges that the trial court erred in barring the defense from presenting evidence of the allegations Ms. Hill made against Christopher Bennett when she obtained a personal protection order against him, when the court previously had ruled that Ms. Hill's allegations against Mr. Knight were admissible as relevant to her state of mind.
Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he also has the right to present his own witnesses to establish a defense. This right is a fundamental element of the due process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986) ("whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense'") (internal citations omitted). However, an accused in a criminal case does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme Court, in fact, has indicated its "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689. The Supreme Court gives trial court judges "wide latitude" to exclude evidence that is repetitive, marginally relevant, or that poses a risk of harassment, prejudice, or confusion of the issues. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Under the standard of review for habeas cases as enunciated in § 2254(d)(1), it is not enough for a habeas petitioner to show that the state trial court's decision to exclude potentially helpful evidence to the defense was erroneous or incorrect. Instead, a habeas petitioner must show that the state trial court's decision to exclude the evidence was "an objectively unreasonable application of clearly established Supreme Court precedent." See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 2003).
The Michigan Court of Appeals rejected petitioner's claim as follows:
People v. Knight, 2015 WL 5657382, at *6-8.
The United States Supreme Court "repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005). State courts are the "ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is essential to establish an element of a crime, like the question whether a given element is necessary, is a question of state law, of which federal habeas review is not available. See Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002). Likewise, "[D]ue process does not require that a defendant be permitted to present any defense he chooses. Rather, states are allowed to define the elements of, and defenses to, state crimes." See Lakin v. Stine, 80 F. App'x 368, 373 (6th Cir. 2003) (citing Apprendi v. New Jersey, 530 U.S. 466, 484-87 (2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, (1986)).
Petitioner is not entitled to habeas relief because the Michigan Court of Appeals concluded that under Michigan law, the evidence was not admissible under M.R.E. 803(3). "States have great latitude in criminal proceedings, including latitude to formulate both the elements of crimes and the defenses to them." Taylor v. Withrow, 288 F.3d 846, 853 (6th Cir. 2002). Because the evidence in question was inadmissible, the Michigan Court of Appeals reasonably found that petitioner was not precluded from presenting a defense. The Court rejects Petitioner's third claim.
Petitioner alleges that he was denied his right to confrontation when Medical Examiner Dr. John Somerset's preliminary examination testimony was read into the record.
Out of court statements that are testimonial in nature are barred by the Sixth Amendment Confrontation Clause unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the court. See Crawford v. Washington, 541 U.S. 36 (2004). Although an exception to the confrontation requirement exists where a witness is unavailable and gave testimony at previous judicial proceedings against the same defendant which was subject to cross-examination, this exception is inapplicable "unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 724-25 (1968); see also Hamilton v. Morgan, 474 F.3d 854, 858 (6th Cir. 2007).
When prosecutors seek to admit a non-testifying witness' preliminary hearing testimony, the Confrontation Clause requires two things: first, the prosecution must establish that the declarant is "unavailable" by showing that prosecutorial authorities made a good-faith effort to obtain the declarant's presence at trial, and, second, to satisfy the "indicia of reliability" requirement, the prosecution must demonstrate that the defendant had an adequate opportunity to cross-examine the declarant at the preliminary examination. See Pillette v. Berghuis, 630 F.Supp.2d 791, 804 (E.D. Mich. 2009); rev'd on other grds, 408 F. App'x 873 (6th Cir. 2010); cert. den. 132 S.Ct. 125 (2011) (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3rd Cir. 1999)). The lengths to which the prosecution must go to produce a witness, such that the admission of the witness' prior, confronted testimony at the subsequent trial does not violate the Confrontation Clause, is a question of reasonableness. Hardy v. Cross, 565 U.S. 65, 70 (2011) (quoting Ohio v. Roberts, 448 U.S. 56, 74 (1980)). The Supreme Court noted that "when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness' presence, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising." Id., at 71-72. Most importantly, "the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to overturn a state court's decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken." Id. at 72.
The trial court and the Michigan Court of Appeals reasonably rejected petitioner's Confrontation Clause claim. When the prosecution claims that a witness is unavailable for health reasons, a trial court must make a case-specific finding of necessity before the admission of that witness' prior testimony in lieu of live testimony will satisfy the Confrontation Clause. See Stoner v. Sowders, 997 F.2d 209, 212 (6th Cir. 1993) (citing Maryland v. Craig, 497 U.S. 836, 855 (1990)). The inquiry "must focus on both the severity and duration of the illness. The trial court must inquire as to the specific symptoms of the illness to determine what tasks the patient is able to perform, and the court must determine whether there is the probability that the illness will last long enough `so that, with proper regard to the importance of the testimony, the trial cannot be postponed.'" Id. at 212-13 (quoting Burns v. Clusen, 798 F.2d 931, 937-38 (7th Cir. 1986)).
The trial court properly found that the medical examiner was unavailable to testify, in light of the fact that the medical examiner was 70 years old, residing in Ohio, and was scheduled to have a medical procedure which would conflict with giving testimony at petitioner's trial. (ECF 6-6, PageID.626). Furthermore, neither defense attorney challenged the prosecutor's diligence in securing Dr. Somerset as a witness, and only objected on grounds that the defendants were previously represented by inadequate counsel which they claimed did not protect their client's rights. (Id. at 627-631). The trial court did not err by finding Dr. Somerset was unavailable prior to admitting his Preliminary Examination testimony. See United States v. Bruce, 142 F.3d 437 (Table); 1998 WL 165144, p. 5-6 (6th Cir. Mar. 31, 1998) (district court did not err in admitting witness' videotaped deposition at criminal trial pursuant to F.R.E. 804(a)(4), where the witness had undergone abdominal surgery eleven days prior to trial and doctor indicated in note that witness would not be able to tolerate automobile ride to court due to post-surgical discomfort); see also Ecker v. Scott, 69 F.3d 69, 73 (5th Cir. 1995) (robbery victim suffering from bone cancer and hip fracture was "unavailable" to testify at petitioner's second prosecution, and admitting her prior testimony did not violate Confrontation Clause, even though petitioner claimed that victim might have been able to testify in four weeks).
Under the AEDPA's deferential standard of review, this Court concludes that the Michigan Court of Appeals' rejection of petitioner's claim was a reasonable determination, precluding habeas relief.
The second prong for admission of the victim's preliminary examination testimony was also satisfied because petitioner had an opportunity to cross-examine the victim at the preliminary examination.
Petitioner is not entitled to habeas relief in the absence of any Supreme Court precedent to support his argument that his opportunity to cross-examine the victim at his own preliminary hearing was inadequate to satisfy the requirements of the Confrontation Clause. See Williams v. Bauman, 759 F.3d 630, 635-36 (6th Cir. 2014). Although "there is some question whether a preliminary hearing necessarily offers an adequate prior opportunity for cross-examination for Confrontation Clause purposes[.]," see Al-Timimi v. Jackson, 379 F. App'x 435, 437 (6th Cir. 2010), see also Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 2007) (doubting whether "the opportunity to question a witness at a preliminary examination hearing satisfies the pre-Crawford understanding of the Confrontation Clause's guarantee of an opportunity for effective cross-examination") (internal quotation marks omitted), the Sixth Circuit in Al-Timini noted that the Supreme Court in Barber indicated that "there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand of the confrontation clause where the witness is shown to be actually unavailable." Al-Timini, 379 F. App'x at 438 (quoting Barber, 390 U.S. at 725-26). The Sixth Circuit in Al-Timini also noted that the Supreme Court appeared "to have retreated from the doubts it expressed in Barber by finding that the opportunity for cross-examination afforded at a preliminary examination may satisfy the Confrontation Clause in at least some circumstances." Id. The Sixth Circuit in Al-Timini observed that the Supreme Court in the cases of California v. Green, 399 U.S. 149 (1970) and Ohio v. Roberts, 448 U.S. 56 (1980) had found no Confrontation Clause violation by the admission of an unavailable witness' preliminary examination testimony because the defendants in both cases had the opportunity to cross-examine the witness at the preliminary examination. Al-Timini, 379 F. App'x at 438-39. At the preliminary hearing in this case, petitioner was represented by counsel, who was given a full opportunity to cross-examine the medical examiner, without any restriction by the examining magistrate, and who took advantage of this opportunity to the extent that he saw fit. Accordingly, the trial judge's decision to admit the medical examiner's testimony from the preliminary examination when the medical examiner was unavailable to testify was not contrary to, or an unreasonable application of clearly established federal law. Williams, 759 F.3d at 635-36; Al-Timini, 379 F. App'x at 439. Petitioner is not entitled to relief on his fourth claim.
For the reasons discussed, state court adjudication of petitioner's claims did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Nor did the state court adjudication result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This Court concludes that petitioner is not entitled to federal habeas relief on the claims contained in his petition.
In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
This Court denies a certificate of appealability because reasonable jurists would not find this Court's assessment of the claims to be debatable or wrong. See Slack v. McDaniel, 529 U.S. at 484.
Although this Court will deny a certificate of appealability to petitioner, the standard for granting an application for leave to proceed in forma pauperis (IFP) is a lower standard than the standard for certificates of appealability. See Foster v. Ludwick, 208 F.Supp.2d 750, 764 (E.D. Mich. 2002) (citing United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of appealability may only be granted if petitioner makes a substantial showing of the denial of a constitutional right, a court may grant IFP status if it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a). "Good faith" requires a showing that the issues raised are not frivolous; it does not require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court's resolution of petitioner's claims, the issues are not frivolous; therefore, an appeal could be taken in good faith and petitioner may proceed in forma pauperis on appeal. Id.
Based upon the foregoing, IT IS ORDERED that:
