NORAH McCANN KING, Magistrate Judge.
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Return of Writ (ECF No. 7), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this case as follows:
State v. Brown, No. CT2013-0004, 2013 WL 4503303, at *1-2 (Ohio App. 5
Petitioner, who is proceeding with the assistance of counsel, filed the Petition in this Court on April 22, 2015, He alleges that he was denied the right to confront and defend against the charge of felonious assault, because the trial court prohibited him from cross-examining the alleged victim about his prior statement that he had shot himself accidentally and that Petitioner did not intentionally shoot him. Respondent contends that this claim lacks merit.
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act ("AEDPA") sets forth standards governing this Court's review of state-court determinations. The United State Supreme Court recently described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, ___ U.S. ___, ____, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt." (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct.
28 U.S.C. § 2254(e)(1). "Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law"); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding"). The United States Court of Appeals for the Sixth Circuit explained these standards as follows:
Coley, 706 F.3d at 748-49. The burden of satisfying the standards set forth in § 2254 rests with the petitioner. Cullen v. Pinholster, 563 U.S.170, 181 (2011).
"In order for a federal court to find a state court's application of [Supreme Court precedent] unreasonable, . . . [t]he state court's application must have been objectively unreasonable," not merely "incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520-21, (2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 131 S.Ct. at 786 ("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." (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of "unreasonable application" under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ("`[O]ur focus on the `unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not whether the state court considered and discussed every angle of the evidence.'" (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc))); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that was "not expressly considered by the state court in its opinion" to evaluate the reasonableness of state court's decision). Relatedly, in evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a court must review the state court's decision based solely on the record that was before it at the time it rendered its decision. Pinholster, 563 U.S. at 181. Put simply, "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 182.
The state appellate court rejected Petitioner's claim as follows:
State v. Brown, 2013 WL 4503303, at *3.
To the extent that Petitioner raises an issue regarding state evidentiary law, it does not provide a basis for relief. 28 U.S.C. § 2254(a). As a general matter, an error under state law, especially the improper admission of evidence, does not provide a basis for federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62 (1991); Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). To be entitled to habeas relief, a petitioner must demonstrate that an evidentiary ruling violated more than a state rule of evidence or procedure. "Habeas review does not encompass state court rulings on the admission of evidence unless there is a constitutional violation." Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir. 1994). In other words, "`[e]rrors by a state court in the admission of evidence are not cognizable in habeas proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.'" Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006) (citing Roe v. Baker, 316 F.3d 557, 567 (6th Cir. 2002)). A state court evidentiary ruling does not violate due process unless it "offend[s] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Giles, 449 F.3d at 704 (citing Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001)). Consequently, this Court's review is limited to whether Petitioner can demonstrate a violation of his federal constitutional rights. Haliym v. Mitchell, 492 F.3d 680, 700 (6th Cir. 2007).
Petitioner has sought to elevate his claim to a constitutional level by contending that the challenged trial court's evidentiary ruling violated Petitioner's right to present a complete defense as guaranteed by the Sixth Amendment. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to physically confront and cross examine adverse witnesses at all stages of the trial. Illinois v. Allen, 397 U.S. 337, 388 (1970). The Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). This right ensures a defendant's opportunity to present witnesses in his defense. See Taylor v. Illinois, 484 U.S. 400, 409 (1988). A criminal defendant's right to cross-examine witnesses who testify against him, however, is not unlimited. "Trial judges retain wide latitude . . . to impose reasonable limits on such crossexamination 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. Van Arsdall, 475 U.S. 673, 679 (1986). The Confrontation Clause thus guarantees the opportunity for effective cross-examination, not cross examination in whatever way or to whatever extent a defendant may desire. Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). See also Norris v. Schotten, 146 F.3d 314, 330 (6th Cir. 1998) (no Confrontation Clause violation where relevance of questions prohibited on cross-examination is unclear and the risk of prejudice real) (citations omitted). "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor, 484 U.S. at 410; Rockwell v. Yukins, 341 F.3d 507 (6th Cir. 2003). The Supreme Court has made it clear that the right to present a "complete" defense is not an unlimited right to ride roughshod over reasonable evidentiary restrictions. Rockwell, at 512.
Criminal defendants "must comply with established rules of procedure and evidence designed to assure fairness and reliability in the ascertainment of guilt and innocence." United States v. Cruse, 59 Fed. Appx. 72, 79 (6th Cir. 2003)(quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). The application of "[s]uch rules do[es] 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." Cruse, 59 Fed. Appx. at 79-80. Whether a decision to exclude certain evidence or preclude questioning about a particular matter violates a criminal defendant's constitutional right to present a defense "turns on the extent to which that evidence is so highly relevant that it becomes indispensable to the success of the defense." Crane, 476 U.S. at 691. Against such considerations courts must balance the state's interests in enforcing the evidentiary rule on which the exclusion was based. The question for the Court to consider is whether Petitioner was afforded `a meaningful opportunity to present a complete defense.'" Crane, 476 U.S. at 690 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
As the United States Supreme Court has recognized, "[o]nly rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." Nevada v. Jackson, ___ U.S. ____, ____, 133 S.Ct. 1990, 1992 (2013). Cases in which the Supreme Court has declared the exclusion of evidence unconstitutional found that the exclusion "significantly undermined fundamental elements of the defendant's defense." United States v. Scheffer, 523 U.S. 303, 317 (1998).
Where a trial court limits the extent of a criminal defendant's cross-examination, but does not bar it completely, the trial court is afforded wider latitude. Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir. 1989). Under such circumstances, the test is "whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory." Drummond v. Houk, 761 F.Supp.2d (N.D.Ohio 2010) (citing Dorsey v. Parke)).
At Petitioner's trial, after defense counsel had concluded his cross examination of Minor (and Minor had stated that he could not recall if he had ever made the statement, "I know you didn't do nothing, man"), defense counsel requested a side bar. Transcript (ECF No. 8-2, PageID# 263-64). Defense counsel did not indicate that he had any further questions for the witness. Thus, the record does not establish that the defense was precluded from asking any further questions on cross examination. Instead, defense counsel sought permission to attack Minor's credibility by introducing a tape recording of the June 14, 2012, telephone conversation from the Zanesville City Jail, during which Minor allegedly made the statement. Id. (ECF No. 8-2, PageID# 265). The trial court denied that request, reasoning that Minor had not denied making the statement. Id. (PageID# 265-66.) Petitioner claims that the trial court thereby denied him the right to confront the witnesses against him and to present a defense. This Court disagrees.
As noted by the state appellate court, Minor testified at some length, and was subject to cross examination, regarding his conversations with Petitioner, during which he told Petitioner that he would not testify against him or blame him for the assault. According to Minor, Petitioner wanted Minor to "clear his name" and Minor agreed to do so by denying that Petitioner had purposely shot him. Minor also assured Petitioner that he would not testify against him. Id. (PageID# 215-216.) After Minor had been released from the hospital, he and Petitioner spoke again by cell phone, and Minor again agreed that he would not blame Petitioner for intentionally shooting him.
Id. (PageID# 218-19). Minor testified that he did not want Petitioner to know how he planned to handle things. Id. (PageID# 220). Minor denied ever stating that the shooting had been an accident or that he had shot himself. Id. Moreover, Minor failed to appear for Petitioner's criminal trial in late August, despite having been subpoenaed to do so. Id. (PageID# 221). He explained that he been threatened and was afraid. Id. (PageID# 221-22). Minor was arrested as a result of his failure to appear, and had remained incarcerated for three weeks awaiting trial proceedings. Id. (PageID# 222). He acknowledged that his trial testimony differed from various statements that he had previously provided to police regarding the shooting. Id. (PageID# 224-25).
As this summary makes clear, the record simply does not establish that Petitioner was prevented by the trial court's evidentiary ruling from presenting his defense. Minor never denied making the statement referred to by defense counsel. Further, admission of a tape recorded conversation in which he made such a statement would have added little to the defense in view of the evidence already presented. Minor admitted that he had spoken with Petitioner on more than one occasion and that he had verbally agreed not to blame Petitioner for the shooting or to pursue criminal charges against him. In fact, it appears that Minor attempted to keep his word in that regard by initially failing to appear to testify against Petitioner. Under these circumstances, Petitioner has failed to establish that the state appellate court's rejection of his claim — that he had been denied the right to confront witnesses against him or present a defense — justifies federal habeas corpus relief. Petitioner had a meaningful opportunity to present a defense and the Court is not persuaded that such extrinsic evidence would have added to or refuted in any significant manner the testimony already in the record.
Moreover, the exclusion of this proffered evidence was harmless under the strict standard applicable in federal habeas cases. See Fleming v. Metrish, 556 F.3d 520, 536-37 (6th Cir. 2009) (right to present a defense is subject to a harmless error analysis). On federal habeas review, the harmless-error standard requires a court to determine whether the violation "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619 (1993). Habeas courts must apply this standard regardless of the harmless-error standard applied by the state court — or even if the state court failed to undertake a harmless error review. Fry v. Pliler, 551 U.S. 112, 121-22 (2007). As discussed supra, the record establishes that defense counsel was afforded ample opportunity to cross-examine Minor in order to raise issues regarding the witness' credibility in view of his prior statements denying Petitioner's culpability. Consequently, the exclusion of a statement purportedly made by Minor during the course of a telephone conversation with Petitioner, to the effect that Minor would not pursue charges against Petitioner or charge Petitioner with intentionally shooting him did not have a substantial and injurious effect or influence on the jury's verdict. Consequently, Petitioner is not entitled to habeas relief on this basis.
Therefore, the Magistrate Judge
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
State v. Brown, 2013 WL 4503303, at *7.
