ROBERT J. JONKER, Chief District Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner is imprisoned for a term of 25 years to 50 years. Petitioner is serving six concurrent sentences: four terms of 25 years to 50 years and two terms of 16 months to 24 months. The sentences were imposed by the Allegan County Circuit Court on June 6, 2008, after a jury convicted Petitioner of four counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b and two counts of disseminating sexually explicit matter to a minor, MICH. COMP. LAWS § 722.675. In his pro se petition, Petitioner raises two grounds for relief, as follows:
(Pet., ECF No. 1, PageID.5,9.) Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds should be denied. Upon review of the pleadings and the record, the Court will deny the petition for failure to raise a meritorious federal claim.
During the months (and perhaps even years) preceding June 30, 2007, JB (a girl who was eight years old at the time of Petitioner's trial in April of 2008), and her brother RB, approximately two years her senior, spent a significant amount of time at the home of their adult sister and her husband, Petitioner. That stopped on June 30, 2007, because on that date JB broke down and told her mother that Petitioner had been sexually assaulting JB and RB when they visited or stayed at Petitioner's home.
Following a three-day trial beginning on April 22, 2008, a jury convicted Petitioner of repeatedly raping JB (digital-vaginal penetration, penile-vaginal penetration, penile-oral penetration, and penile-anal penetration) and showing pornographic videos to JB and RB. On June 6, 2008 Petitioner was sentenced as outlined above.
The evidence admitted at trial and the facts underlying the crime are not critically important to resolving Petitioner's habeas claims. Petitioner's claims depend not on the content of JB's testimony at trial but on the trial court's efforts to protect her while she testified. Nonetheless, a brief review of the underlying facts sheds light on the trial court's reasoning for the protection it afforded JB. The Michigan Court of Appeals provided a summary:
People v. Rose, 808 N.W.2d 301, 307 (Mich. App. 2010).
Prior to testifying at Petitioner's preliminary examination, JB had expressed to the prosecutor her fear of Petitioner and his wife, JB's oldest sister. The prosecutor requested that JB be permitted to testify at the preliminary examination behind a screen. (Prelim. Exam. Transcript, July 31, 2007, ECF No. 13, pp. 3-8.) The trial court permitted the use of the screen over Petitioner's objection based on JB's age, the wishes of her family, the nature of the offenses, concern for JB's welfare, her expressed fear, and hesitancy to testify if forced to be in Petitioner's presence. (Id. at p. 7.)
It is difficult to understand the impact of the screen without seeing it in operation.
Put simply, the screen permits the accused to see the witness but does not permit the witness to see the accused.
At trial, the prosecutor again moved to allow JB to testify behind a one-way screen because, once again, JB had indicated to the prosecutor and her therapist that she was afraid and would be unable to testify in Petitioner's presence. (Trial Transcript, April 22, 2008, ECF No. 19, p. 123.) JB's therapist provided supporting expert testimony. The therapist testified that JB was afraid to testify in Petitioner's presence and did not want to see him. (Id. at p. 128.) The therapist testified that a face-to-face confrontation with Petitioner may be a triggering event that could cause JB to experience the trauma again; that it might numb her, shut her down, and render her unable to speak. (Id. at p. 129.) The therapist testified that it was likely that JB would be psychologically and emotionally unable to testify without the protection the screen would provide. (Id. at p. 131.) The therapist was clear that JB's fear was not simply a fear of testifying, but was instead a fear of testifying in front of the Petitioner. (Id. at pp. 136-137.) The therapist testified that absent protection, JB could potentially regress in her therapy. (Id. at p. 141.)
The trial court granted the motion:
(Id. at pp. 144-145.) Based on the court's comments prior to ruling on the motion, it was apparent that the court considered the use of the screen to be less offensive to Petitioner's rights than the use of a video deposition. (Id. at p. 143.)
Petitioner appealed as of right to the Michigan Court of Appeals. His brief, which was filed by counsel on August 3, 2009, raised three issues. The two issues he has raised in this action were presented as one issue. (See Def.-Appellant's Br. on Appeal, ECF No. 25.) By opinion released on July 1, 2010, and published on August 26, 2010, the Michigan Court of Appeals rejected all appellate arguments and affirmed Petitioner's convictions and sentences. Rose, 808 N.W. 2d at 301.
Petitioner sought leave to appeal to the Michigan Supreme Court. The Michigan Supreme Court initially granted leave to appeal on February 2, 2011. People v. Rose, 793 N.W.2d 235 (Mich. 2011). The supreme court directed the parties to address the issues Petitioner raises here: "The parties shall address whether the use of a screen to shield a child complainant from the defendant during testimony violates the Confrontation Clause or prejudices the defendant because it impinges on the presumption of innocence." Id. The parties fully briefed the issues and, by invitation or permission of the supreme court, interested individuals and organizations filed several amicus curiae briefs. The parties presented oral arguments on October 5, 2011. Then, on December 9, 2011, the court vacated its grant of leave to appeal "because [it was] no longer persuaded that the questions presented should be reviewed by this Court." People v. Rose, 805 N.W.2d 827 (Mich. 2011). Justice Marilyn J. Kelly wrote a dissent wherein she concluded that the use of the screen in Petitioner's trial was so inherently prejudicial that it violated his due process rights. Id. at 828-829.
Petitioner thereafter sought a writ of certiorari in the United States Supreme Court. The Supreme Court denied the petition on June 18, 2012. Rose v. Michigan, 132 S.Ct. 2773 (2012).
Petitioner then filed his petition in this Court.
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has "drastically changed" the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372, 1376 (2015) (internal quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d at 655. In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 132 S. Ct. at 44).
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy this high bar, a habeas petitioner is required to `show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woods, 2015 WL 1400852, at *3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1705 (2014) (quotations marks omitted).
Where the state appellate court has issued a summary affirmance, it is strongly presumed to have been made on the merits, and a federal court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA. See Harrington, 562 U.S. at 99; see also Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013); Werth v. Bell, 692 F.3d 486, 494 (6th Cir. 2012) (applying Harrington and holding that a summary denial of leave to appeal by a Michigan appellate court is considered a decision on the merits entitled to AEDPA deference). The presumption, however, is not irrebuttable. Johnson, 133 S. Ct. at 1096. Where other circumstances indicate that the state court has not addressed the merits of a claim, the court conducts de novo review. See id. (recognizing that, among other things, if the state court only decided the issue based on a state standard different from the federal standard, the presumption arguably might be overcome); see also Harrington, 562 U.S. at 99-100 (noting that the presumption that the statecourt's decision was on the merits "may be overcome when there is reason to think some other explanation for the state court's decision is more likely"); Wiggins v. Smith, 539 U.S. 510, 534 (2003) (reviewing habeas issue de novo where state courts had not reached the question).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
The clearly established federal law with respect to Petitioner's Confrontation Clause challenge is set forth in two cases: Coy v. Iowa, 487 U.S. 1012 (1988), and Maryland v. Craig, 497 U.S. 836 (1990). John Avery Coy was charged with sexually assaulting two 13-year-old girls while they were camping in the backyard of the house next door to his. Coy, 487 U.S. at 1014. At the beginning of his trial, the prosecutor asked the court to permit the girls to testify either via closed-circuit television or behind a screen, as permitted under a recently enacted statute. Id. The court permitted the use of a large screen to be placed between the girls and Coy. Id. The screen enabled Coy dimly to perceive the witnesses, but the girls could not see him at all. Id. at 1015. Coy objected to the use of the screen. He argued that he was entitled to a face-to-face confrontation and that the screen violated his due process right because it eroded the presumption of innocence. Id. The Iowa Supreme Court rejected Coy's arguments. That court concluded that there was no Confrontation Clause violation because Coy's ability to cross-examine witnesses was unimpaired. Id. It further concluded that the screen was not inherently prejudicial and, therefore, did not impinge on Coy's due process rights. Id.
The Supreme Court reviewed the historic and policy roots underlying the Confrontation Clause. The Court recognized that the clause provided "`two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.'" Id. at p. 1017 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987)). The Court carefully considered the competing interests where an abused child is called upon to testify against the abuser:
Id. at 1019-1020 (parallel citation omitted). With respect to the use of the screen at Coy's trial, the Court concluded that "[i]t is difficult to image a more obvious or damaging violation of the defendant's right to a face-to-face encounter." Id. at 1020.
Concluding that the screen violated Coy's rights did not end the analysis. The Court acknowledged "that rights conferred by the Confrontation Clause are not absolute, and my give way to other important interests." Id. The Court did not explore what "other important interests" might warrant an exception to the face-to-face confrontation right. Id. at 1021. It rejected as insufficent, however, the legislative presumption of trauma and suggested that any exception "would surely be allowed only when necessary to further an important public policy[,]" and would have to be based on "individualized findings that these particular witnesses needed special protection . . . ." Id. The Court remanded to the Iowa Supreme Court for an assessment of harmlessness
Two years later, the Supreme Court was called upon to elaborate on the Coy decision in Maryland v. Craig, 497 U.S. 836 (1990). Sandra Ann Craig was charged with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery against a six-year-old girl. Id. at 840. Before Craig's trial, the prosecutor asked the court to permit the child to testify by way of one-way closed circuit television. Id. Maryland statute permitted such a procedure where the trial judge determined that requiring a child victim to testify in the courtroom would result in the child suffering serious emotional distress such that the child could not reasonably communicate. Id. at 841. If the trial court so determined, the statute provided for the following:
Id. at 841-42. The prosecutor put an expert on the stand regarding the impact of requiring face-to-face testimony from each child.
Id. at 842 (quoting Craig v. State, 560 A.2d 1120, 1128-29 (Md. 1989)).
The individualized findings that each child witness needed special protection permitted the Court to explore further the potential limits of a criminal defendant's right to a face-toface meeting with opposing witnesses. The Court listed the important elements of confrontation, physical presence, oath, cross-examination, and observation of demeanor by the trier of fact, and noted that face-to-face confrontation was not necessarily essential to vindicating the purpose of the Confrontation Clause. Id. at 846-47 ("[F]ace-to-face confrontation is not the sine qua non of the confrontation right."). Therefore, "`competing interests, if `closely examined,' may warrant dispensing with confrontation at trial.'" Id. at 848 (quoting Ohio v. Roberts, 448 U.S. 56, 64 (1980)). The Supreme Court concluded that "[a]s we suggested in Coy, our precedents confirm that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850.
With that conclusion in mind, the Court evaluated whether the Maryland solution sufficiently assured the reliability of the testimony:
Id. at 851-52 (citations omitted). With reliability assured, the only question remaining was whether the procedure was "necessary to further an important state interest." Id. at 852. On that point the Court held "if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant." Id. at 855.
Finally, the Court provided guidance as to the nature of the requisite "showing of necessity." It must be case-specific, based on evidence that the procedure is necessary to protect the welfare of the child, and the trauma must be a product of being in the presence of the defendant (as opposed to the trauma of being in the courtroom generally). Id. at 855-56. The Court declined to decide the exact measure of trauma required, but declared that it must be "more than de minimis." Id. at 856. The Court accepted that the Maryland requirement of "serious emotional distress" was sufficient to justify the procedure. Id.
The Michigan Court of Appeals reviewed the Supreme Court decisions in Coy and Craig. The court of appeals stated that Michigan had previously recognized and adopted the Craig test in People v. Burton, 556 N.W.2d 201 (1996). Thereafter, the court relied on citations to Burton, an opinion which expressly relied on Craig. In resolving Petitioner's claims, the court of appeals first considered whether the trial court had determined that the screen procedure was necessary to further an important state interest. Rose, 808 N.W. 2d at 314. Then, the court of appeals considered whether the trial court had heard evidence regarding whether the procedure was necessary to protect the witness. Id. From that evidence, the court of appeals explained, the court must determine whether the witness would be traumatized by the presence of the defendant and that the emotional distress would be more than de minimis. Measured against the Craig standard, the court of appeals concluded that the use of screen did not violate Rose's confrontation right. Id. at 314.
That the Michigan court's resolution of Petitioner's confrontation clause challenge was neither contrary to, nor unreasonable application of, clearly established federal law. The court of appeals evaluated the use of the screen in Petitioner's case following precisely the analysis prescribed in Craig. Nor can it be said that the facts underlying application of the Craig test were unreasonably determined. The expert's testimony provided the factual support necessary for the screen device to be employed. Petitioner has provided no evidence, much less the requisite clear and convincing evidence, to rebut the presumption of correctness accorded to the state court's factual findings. Petitioner's Confrontation Clause claim, therefore, is without merit.
The Supreme Court has not decided a due process challenge to the use of a screen or closed circuit television to protect a witness fearful of testifying in the presence of the accused. Because the majority in Coy reversed Coy's conviction and remanded for further proceedings based on its resolution of the Confrontation Clause challenge, the majority never considered the due process challenge to the use of the screen. Coy, 487 U.S. at 1022 ("We find it unnecessary to reach appellant's due process claim."). Justice Blackmun, in dissent, however, considered and rejected the due process challenge. Id. at 1034-35.
Coy, 487 U.S. at 1034 (parallel citations omitted). The resolution of the due process issue by the Michigan Court of Appeals is properly measured against the clearly established federal law cited by Justice Blackmun.
The Michigan Court of Appeals evaluated Petitioner's due process claim by applying the clearly established federal law cited by Justice Blackmun in Coy:
Rose, 808 N.W. 2d at 315.
The court noted that the authority applying the law to screens was quite limited. The court compared Justice Blackmun's dissent in Coy and the decision of the Nebraska Supreme Court in State v. Parker, 757 N.W.2d 7 (2008). Id. at 315-16. As set forth above, Justice Blackmun concluded the screen was not inherently prejudicial; the Parker court reached the opposite conclusion. The court of appeals sided with Justice Blackmun:
Rose, 808 N.W. 2d at 316-17 (parallel citations omitted). Absent inherent prejudice, the court of appeals concluded Petitioner's challenge failed because there was nothing in the record to support a claim that the screen caused actual prejudice to Petitioner. Id. at 317.
Petitioner insists that the use of the screen is inherently prejudicial. He supports his position with cites to the Parker opinion and the dissent authored by Michigan Supreme Court Justice Marilyn J. Kelly. Those sources, no matter how persuasive, are not clearly established federal law as determined by the Supreme Court of the United States. The determination of inherent prejudice hinges upon an assessment of the possible inferences a jury might draw from the screen. The Supreme Court has explained that "[c]ourts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience." Estelle v. Williams, 425 U.S. at 504. The Sixth Circuit has recognized that the Estelle v. Williams standard (to do one's best to evaluate likely effects based on reason, principle, and common human experience) is not particularly specific guidance such that "fairminded jurists could vary widely in assessing various details and risks, especially since the closest Supreme Court analogues involve easily distinguishable circumstances." Wilkens v. Lafler, 487 F. App's 983, 990 (6th Cir. 2012). "`The more general the rule at issue'—and thus the greater the potential for reasoned disagreement among fair-minded judges—`the more leeway [state] courts have in reaching outcomes in case-by-case determinations.'" Renico v. Lett, 559 U.S. 766. 776 (2010) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The court of appeals analysis of the inferences a juror might draw from the presence of the witness screen falls within the general guidance provided by Estelle v. Williams. Whether another state's supreme court, a Michigan Supreme Court justice, or any fair-minded judge might apply reason, principle or common human experience to reach a different result is immaterial. It cannot be said that the state court's determination is contrary to or an unreasonable application of clearly established federal law. Accordingly, Petitioner is not entitled to habeas relief.
In light of the foregoing, the Court will deny Petitioner's application because it fails to raise a meritorious federal claim.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "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). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's claims. Id.
The Court finds that reasonable jurists could not conclude that this Court's denial of Petitioner's claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability.
A Judgment and Order consistent with this Opinion will be entered.
