MCDONALD v. MCNEIL

Filing 62

ORDER DENYING THE PETITION AND GRANTING A LIMITED CERTIFICATE OF APPEALABILITY - The 45 Report and Recommendation is ACCEPTED and adopted as the court's opinion. The clerk must enter judgment stating, "The petition is D ENIED with prejudice." The motion for a certificate of appealability, ECF No. 51 , is GRANTED IN PART. A certificate of appealability is granted on this issue:whether Mr. McDonald is entitled to relief on the ground that the alleged child victim's remote testimony violated the Confrontation Clause. The motion for leave to appeal in forma pauperis, ECF No. 52 , is GRANTED. Signed by JUDGE ROBERT L HINKLE on 3/31/2014. (dlt)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

MICHAEL A. McDONALD,
Petitioner,
v.

CASE NO. 4:10cv428-RH/CAS

MICHAEL D. CREWS,
Respondent.
_________________________________/

ORDER DENYING THE PETITION AND GRANTING
A LIMITED CERTIFICATE OF APPEALABILITY

By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Michael A.
McDonald challenges his Florida state-court convictions for sexual battery on, and
lewd or lascivious molestation of, a four-year-old girl. The girl testified (when she
was age five) by contemporaneous video transmission from a separate room in the
courthouse, while the defendant remained in the courtroom. This order denies the
petition not because this was permissible under the Confrontation Clause, but
because the state courts’ conclusion that this was permissible under the
Confrontation Clause was not contrary to, or an unreasonable application of,
decisions of the United States Supreme Court, or based on an unreasonable
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determination of the facts in light of the evidence presented in the state-court
proceeding. The convictions thus cannot be set aside under § 2254.
I
The petition is before the court on the magistrate judge’s 100-page report
and recommendation, ECF No. 45, and the objections, ECF No. 50. The report
and recommendation sets out the background and addresses each of the issues
raised by the petition.
Upon review of the report and recommendation, I appointed an attorney for
Mr. McDonald and set the case for oral argument. I allowed each side to submit
additional materials. Each side has had the opportunity to submit anything it chose
and has been fully heard. I have read the entire transcript of the trial and the other
pertinent parts of the record. I have reviewed the issues with care and without
deference to the report and recommendation.
The report and recommendation is thorough and correct. It is adopted as the
court’s opinion with additional comments summarizing the § 2254 standard of
review, briefly addressing the video-transmission issue, and addressing a separate
ineffective-assistance claim raised for the first time at oral argument.
II
A federal habeas court may set aside a state court’s ruling on the merits of a
petitioner’s claim only if the ruling “was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” or if the ruling “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A long and ever-growing line of cases
addresses these standards. See, e.g., Williams v. Taylor, 529 U.S. 362 (2000);
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117 (11th Cir. 2012). No purpose
would be served by repeating here all the analysis set out in the many cases.
III
Under the Confrontation Clause, a defendant has the right “to be confronted
with the witnesses against him.” U.S. Const. amend. VI. This ordinarily means
that the witnesses must testify live in the courtroom with the defendant present.
The framers probably gave little thought to video transmission of testimony from a
remote location, but video transmission is now feasible. Even so, unless the
defendant consents, the Confrontation Clause prohibits the practice. See, e.g.,
United States v. Yates, 438 F.3d 1307 (11th Cir. 2006) (en banc) (disapproving
video testimony of a witness who was out of the country and could not be
subpoenaed to the trial).
But there is a narrow exception for children who are alleged victims of
sexual abuse. On this issue, the “clearly established Federal law, as determined by

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the Supreme Court of the United States,” is set out in two decisions: Coy v. Iowa,
487 U.S. 1012 (1988), and Maryland v. Craig, 497 U.S. 836 (1990).
The report and recommendation correctly analyzes these decisions and an
Eleventh Circuit decision applying them, Cumbie v. Singletary, 991 F.2d 715 (11th
Cir. 1993). Together, Coy and Craig establish that child testimony cannot be
presented remotely based only on a presumption of harm, but child testimony can
be presented remotely based on individualized findings that the child will suffer
harm, not just from testifying in a courtroom, but from testifying in the defendant’s
presence.
Here, to justify the child’s remote testimony, the state presented the
testimony of a clinical psychologist who examined the child for the first time on
the morning of trial. Most of the psychologist’s testimony addressed the wrong
issue—harm to the child from testifying at all, or from testifying without her
mother present, not any marginal harm to the child from testifying in the
defendant’s presence. But the psychologist did briefly touch on that subject, and
the trial court explicitly found that the child would suffer harm from testifying in
the defendant’s presence. This was not an unreasonable finding based on the
limited evidence presented in the state-court proceeding.
It is hardly commendable that the state first notified the defense on the day
before the trial that the state would attempt to present the child’s testimony

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remotely. It is hardly commendable that the state arranged for an expert to
examine the child on this subject only on the morning of trial. But the petition in
this court does not raise this as an issue. The petition does not assert that the late
notice was unconstitutional or that it otherwise entitles Mr. McDonald to relief.
And any such claim in this court almost surely would have failed on procedural
grounds: a state-court procedural default by failing to raise the issue on direct
appeal, and in any event a failure to exhaust the claim in state court either on direct
appeal or on collateral review.
Whether the state’s factual showing was sufficient under Coy and Craig is
far from clear. The issue, though, is not whether those decisions clearly authorized
this remote testimony. The issue is whether those decisions clearly prohibited this
remote testimony. The decisions did not. The state courts’ rejection of Mr.
McDonald’s Confrontation Clause claim was not contrary to or an unreasonable
application of federal law as determined by the United States Supreme Court.
One final point deserves mention. Craig was a 5-4 decision. In the view of
the four dissenting justices, the Confrontation Clause required in-court testimony
with no exception for child victims of sexual abuse. In holding the contrary, the
five-member majority relied heavily on Ohio v. Roberts, 448 U.S. 56 (1980).
Under Roberts, reliability was a touchstone of Confrontation Clause jurisprudence.
But Roberts has now been overruled. See Crawford v. Washington, 541 U.S. 36

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(2004). Justice Scalia authored both the Craig dissent and the Crawford opinion
for the Court. Craig thus might not be the Court’s last word on remote testimony
of child victims. But none of this matters here; relief under § 2254 is available
based only on clearly established federal law, not based on law that might later
develop.
The bottom line is this: the state courts’ rejection of the Confrontation
Clause claim was not contrary to or an unreasonable application of federal law as
determined by the United States Supreme Court or based on an unreasonable
determination of the facts in light of the evidence presented in the state-court
proceeding.
IV
Mr. McDonald noted at oral argument that his trial attorney’s crossexamination of a state witness brought out damaging testimony. The witness, a
neighbor, was the first adult who learned of Mr. McDonald’s abuse of the child.
On direct, the witness said she asked the child whether she had been touched
inappropriately. The witness gave no indication of why she asked the question.
That is, of course, an odd thing to ask a child, just out of the blue. On cross, the
witness said she asked because the child had told her once before that Mr.
McDonald touched her inappropriately, that the witness did not report this at the
time but determined to be on the lookout, that Mr. McDonald soon left the

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residence for an extended period, and that when he returned and had the child in
his care for several hours, the witness asked the child about inappropriate contact,
at the first available opportunity. Not a good cross-examination.
A claim of ineffective assistance of counsel is governed by Strickland v.
Washington, 466 U.S. 668 (1984). To succeed, a defendant must show both
deficient performance and prejudice. It is not at all clear Mr. McDonald could
meet these standards.
But Mr. McDonald could not prevail on this claim in this court in any event.
First, the claim was not exhausted in state court. Second, the claim was not made
in the petition in this court. Third, Mr. McDonald has not sought leave to amend to
add this claim, and doing so apparently would be futile; the claim would not relate
back to the date when the petition was filed and thus would now be barred by the
one-year statute of limitations. Mr. McDonald is not entitled to relief on this
claim.
V
For the reasons set out in the report and recommendation and this order, the
petition is due to be denied.
Rule 11 of the Rules Governing § 2254 Cases requires a district court to
“issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may

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issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting
out the standards applicable to a § 2254 petition on the merits). As the Court said
in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing that reasonable
jurists could debate whether (or, for that matter, 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, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in
order to obtain a certificate of appealability when dismissal is based on procedural
grounds, a petitioner must show, “at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. at 484.
Mr. McDonald has made the required showing on only a single issue:
whether he is entitled to relief on the ground that the alleged child victim’s remote
testimony violated the Confrontation Clause.
For these reasons,

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IT IS ORDERED:
1. The report and recommendation is ACCEPTED and adopted as the
court’s opinion.
2. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
3. The motion for a certificate of appealability, ECF No. 51, is
GRANTED IN PART. A certificate of appealability is granted on this issue:
whether Mr. McDonald is entitled to relief on the ground that the alleged child
victim’s remote testimony violated the Confrontation Clause.
4. The motion for leave to appeal in forma pauperis, ECF No. 52, is
GRANTED.
5. The clerk must close the file.
SO ORDERED on March 31, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:10cv428-RH/CAS