Wiecek v. Ludwick

Filing 34

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Dustin Wiecek Signed by Magistrate Judge Paul J Komives. (EBut)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DUSTIN H. WIECEK, Petitioner, v. BLAINE C. LAFLER, Respondent.1 / REPORT AND RECOMMENDATION
I. II. RECOMMENDATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Factual Background Underlying Petitioner's Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 D. Confrontation (Claim I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 E. Prosecutorial Misconduct (Claim II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 a. Arguing Facts Not in Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 b. Evidence of Petitioner's Exercise of Rights to Remain Silent and Counsel . . . . . . . 21 c. Impugning Defense Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 d. Vouching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 e. Shifting Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 F. Judicial Partiality (Claim IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 G. Sufficiency of the Evidence (Claim V) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 H. Right to Counsel and Ineffective Assistance of Counsel (Claims III & VI) . . . . . . . . . . . . . . . . . 39 1. Denial of Right to Counsel (Claim III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 2. Ineffective Assistance of Counsel (Claim VI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 a. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 b. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 I. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

CASE NO. 2:06-CV-12233 JUDGE ARTHUR J. TARNOW MAGISTRATE JUDGE PAUL J. KOMIVES

III.

By Order entered this date, Blaine C. Lafler has been substituted for Nick Ludwick as the proper respondent in this action.

1

I.

RECOMMENDATION: The Court should deny petitioner's application for the writ of

habeas corpus. II. A. REPORT: Procedural History 1. Petitioner Dustin H. Wiecek is a state prisoner, currently confined at the Boyer Road

Correctional Facility in Carson City, Michigan. 2. On October 3, 2002, petitioner was convicted of first degree criminal sexual conduct,

MICH. COMP. LAWS § 750.520b(1)(g), following a jury trial in the Wayne County Circuit Court. Petitioner was acquitted of charges that he had poisoned the victim with gamma hydroxybutyrate (GHB) and committed criminal sexual conduct during the course of a felony poisoning. On November 1, 2002, he was sentenced to a term of 27 months' to 15 years' imprisonment. 3. Petitioner appealed as of right to the Michigan Court of Appeals raising, through

counsel, the following claims: I. PROSECUTORIAL MISCONDUCT DENIED DUE PROCESS OF LAW IN THE FOLLOWING WAYS: a. b. The prosecutor argued facts not in evidence and misstated a fact. The prosecutor elicited evidence of defendant's exercise of his right to remain silent and of his right to counsel and to the effective assistance of counsel and to present a defense. The prosecution also vouched for her witness and resorted to bolstering. The prosecutor shifted the burden of proof in her opening statement.

c. d. II.

THE TRIAL COURT DENIED APPELLANT THE EFFECTIVE ASSISTANCE OF COUNSEL, THE CONSTRUCTIVE RIGHT TO COUNSEL, AND THE RIGHT TO A FAIR TRIAL WHEN IT ORDERED THE DEFENSE NOT TO OBJECT DURING THE PROSECUTION'S 2

REBUTTAL ARGUMENT. III. THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE AND TO CONFRONT AND CROSS EXAMINE THE WITNESS AGAINST HIM WHEN THE PRETRIAL AND THE TRIAL JUDGES DENIED THE MOTION TO BE ALLOWED TO USE EXCERPTS FROM THE WITNESS' JOURNAL IN CROSS EXAMINING HER. THE TRIAL COURT'S EXAMINATION OF A DEFENSE WITNESS PIERCED THE VEIL OF JUDICIAL IMPARTIALITY AND INVADED THE PROVINCE OF THE JURY. THE TRIAL COURT ERRED WHEN IT ADMITTED HEARSAY EVIDENCE FROM NON TESTIFYING EXPERTS TO CONFIRM THAT THE COMPLAINANT HAD INGESTED GHB. APPELLANT'S CONVICTION FOR CRIMINAL SEXUAL CONDUCT IN THE FIRST DEGREE SHOULD BE REVERSED WHERE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE THE ELEMENT OF WHETHER DEFENDANT KNEW OR SHOULD HAVE KNOWN THAT THE COMPLAINANT WAS PHYSICALLY HELPLESS. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN THE FOLLOWING WAYS: a. Trial counsel failed to argue that the complainant's journal excerpts were admissible under MRE 406 and MRE 404(b) and failed to use the journal for impeachment purposes once the complainant stated that acting sexually was not in her character. Counsel failed to object to prosecutorial misconduct.

IV.

V.

VI.

VII.

b. VIII.

APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE EXPERT TESTIMONY WAS ADMITTED CONCERNING THE CUT OFF LEVEL FOR DIFFERENTIATING THE ENDOGENOUS GHB FROM EXOGENOUS GHB IN THE URINE WHERE THERE WAS NO G E N E R A L ACCEPTANCE AMONG IMPARTIAL AND DISINTERESTED EXPERTS IN THE FIELD AS TO WHAT THAT LEVEL IS AND WHERE THE FOUNDATIONAL REQUIREMENTS WERE NOT MET. MCL 28.721 et seq, THE SEX OFFENDER REGISTRATION ACT, IS 3

IX.

UNCONSTITUTIONAL IN THAT IT FAILS TO ALLOW A HEARING ON THE ISSUE WHETHER THE OFFENDER IS A DANGEROUS THREAT TO THE PUBLIC AND IT ALSO VIOLATES APPELLANT'S DUE PROCESS LIBERTY INTEREST. The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Wiecek, No. 247596, 2005 WL 292193 (Mich. Ct. App. Feb. 8, 2005) (per curiam). 4. Petitioner sought leave to appeal these issues to the Michigan Supreme Court. The

Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Wiecek, 474 Mich. 971, 707 N.W.2d 207 (2005). 5. Petitioner, through counsel, filed the instant application for a writ of habeas corpus

on May 16, 2006. As grounds for the writ of habeas corpus, he raises six claims: I. PETITIONER WAS DENIED HIS RIGHT TO CONFRONT WITNESSES AND PRESENT A DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS BECAUSE HE WAS NOT ALLOWED TO USE EXCERPTS FROM THE COMPLAINANT'S JOURNAL DURING CROSS-EXAMINATION. PETITIONER WAS DENIED HIS DUE PROCESS RIGHT TO A FAIR TRIAL IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS DUE TO PROSECUTORIAL MISCONDUCT IN MISREPRESENTING EVIDENCE, ATTACKING THE VERACITY OF DEFENSE COUNSEL, AND COMMENTING ON PETITIONER'S RIGHT TO REMAIN SILENT AND HAVE REPRESENTATION OF COUNSEL. PETITIONER WAS DENIED HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS WHEN THE TRIAL COURT BARRED DEFENSE COUNSEL FROM OBJECTING TO PROSECUTORIAL MISCONDUCT DURING THE PROSECUTOR'S REBUTTAL ARGUMENT. THE TRIAL COURT'S EXAMINATION OF A DEFENSE WITNESS PIERCED THE VEIL OF JUDICIAL IMPARTIALITY AND INVADED THE PROVINCE OF THE JURY IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. PETITIONER WAS DENIED DUE PROCESS UNDER THE FIFTH AND 4

II.

III.

IV.

V.

FOURTEENTH AMENDMENTS WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT'S CONVICTION FOR CRIMINAL SEXUAL CONDUCT FIRST DEGREE WHERE THE PROSECUTION FAILED TO PROVE THAT PETITIONER KNEW OR SHOULD HAVE KNOWN THAT THE COMPLAINANT WAS PHYSICALLY HELPLESS. VI. PETITIONER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS BECAUSE TRIAL COUNSEL FAILED TO SEEK ADMISSION OF THE COMPLAINANT'S JOURNAL ENTRIES UNDER MRE 406 AND MRE 404(B) OR FOR IMPEACHMENT PURPOSES AND TRIAL COUNSEL FAILED TO OBJECT TO PROSECUTORIAL MISCONDUCT. Respondent filed his answer on November 27, 2006. He contends that some of

6.

petitioner's claims are barred by petitioner's procedural default in the state courts, and that all of petitioner's claims are without merit. 7. B. Petitioner filed a reply to respondent's answer on December 22, 2006.

Factual Background Underlying Petitioner's Conviction The evidence adduced at trial was accurately summarized in petitioner's brief in the

Michigan Court of Appeals: Dustin Wiecek was charged in the information in count I with willfully mingling Gamma Hydroxybutyrate (GHB), a poison or harmful substance, with a drink while he knew or should have known that the drink might be ingested contrary to MCL750.436(1); in count II with criminal sexual conduct in the first degreeduring the felony of poisoning contrary to MCL 750.520(b)(l)(c). and in count III with criminal sexual conduct in the first degree, the aggravating factor being that he knew or should have known that the complainant was physically helpless contrary to MCL750.520b(l)(g). After a jury trial, he was found not guilty of counts I and II and found guilty of count III. He was sentenced to 27 months to 15 years. The crime was allegedly committed on June 18, 1999 at 45200 Brunswick in the township of Canton. It was not reported until June 19, 1999and chargeswere not brought until March 01, 2000. During the motion to bind over the defendant for trial after the preliminary examination, the prosecution stated in regard to Count III that the aggravating factor was causing someone to become physically helpless, causing 5

personal injury. It cited to People v Carmichael, an 1858 case to argue that it had shown the personal injury element of Count III because "When you put someone to sleep with a poison for sexual purposes, that's personal injury." (PET-I 17). On June 8,2001, the court denied the defendant's motion to be permitted to use excerpts from the complainant's journal in cross examination. (Apx-2a). On February 26, 2002, a Frye-Davis evidentiary hearing was held pursuant to the defendant's motion challenging the admissibility of the scientific evidence. On March 22, 2002, the court ruled that the evidence would not be suppressed because it found Dr. Jackson, the prosecution's expert, more credible. "He had greater expertise than the witness produced by the defense." (EHT-II-17). The court found that the level 0.08 is determinative of it being endogenous­is sufficient to believe that the amount tested in this case would be exogenous . . . . The court also stated that no real evidence was offered to show that the evidence was tampered with or adulterated. The court believed it was reliable and should not be suppressed. (EHT II-19). The court noted that in regard to the chain of custody that GHB levels can change over a period of time, "It is affected by temperature as well as other factors. And that the affect (sic) is in dispute." But the Court noted that there was testimony as to the chain of custody in which 3 facilities had custody. The court found that that was sufficient and is not determinative of admissibility. (EHT II-I8). On September 17,2002, a jury trial began before the Hon. George Crockett, a judge of the Criminal Division of Wayne County Circuit Court. The defense asked for a clarification of the pretrial judge's order excluding the use of evidence from the journal. The trial court stated that the pretrial judge's order stands. (I 7-12). In her opening statement, the prosecutor stated that Officer Newsome's testimony would show that Mr. Wiecek got the recipe for GHB off the Internet. (I 147-148). She concluded her opening by asking the jurors to listen carefully . . . because I don't know what the defendant is going to say, if the defendant gets up here and starts talking about consent, that she consented, and the ability of somebody like that to consent in that sort of helpless state. (II-149). The complainant, Diana Roddy, testified that she met Dustin Wiecek at Bennigan's where they were both working. They were just friends and not romantically involved. She and Mr. Wiecek had planned to get together at his home during the day on June 18 because she had just completed school and it was right before Mr. Wiecek would be starting summer school. Their plan was to get drunk (IIl-40) and enjoy the Wiecek hot tub in the backyard. She arrived at the house at about 11:00 am. They started drinking rum and beer. She was feeling slightly intoxicated. (1I-1 77). Mr. Wiecck then brought out a glass of wine. After Mr. Wiecek brought out a glass of wine to the tub she stated that she " . . . wasn't aroused toward the defendant, Mr. Wiecck, but I began to act in a way that was, it could only be described as sexual. It wasn't in my character to normally behave that way." (I-178). She removed the bottom of her bathing suit and let the hot tub water jet strike 6

her inner legs and vaginal area. (III-63). She was within a foot of the jet. (II-179). That was the last thing she remembered until the defendant woke her. She was on his bed wearing her own flannel pants but a shirt that belonged to Mr. Wiecek. She felt groggy but not hung over. Mr. Wiecek then told her he had lost his virginity to her. He admitted that he had trouble keeping it in and had to stop because she was making noise, but that she seemed to be enjoying it. She had no recollection of what he was talking about. (II 179-182). She testified that he was surprised that she could not remember the sex. (III-84). She estimated that she was unconscious for three hours, from 1-4:00pm. She had bruises on her legs and upper arms, and her lower back was sore. (II-187). She felt confused and disturbed. (II-188). The witness admitted that she had had prior experiences drinking and being in a hot tub. (II-174). Before that date she had not heard of GHB. (II-176). She testified that Mr. Wiecek called her that night and said it had been a mistake and it was because they were drunk. (III-5). He also told her that she had lost control of her bowels in the hot tub and that he had to put her in the shower and then dress her. (III-7). The next day she was emotionally shook up, she had bruises, and her friend Amber Jbara suggested she see a doctor. She drove the complainant to Oakwood Hospital. (III 11-13). She testified that Mr. Wiecck did not understand why she went to hospital. (III-19). She agreed that after she woke up she felt disoriented, dizzy, and fatigued. (III 112-114). During the voir dire concerning the urine sample collected from the complainant, Dr. Weaver testified that it was sent to Qwest Laboratory. He also admitted that Oakwood Hospital did not use the kind of chain of custody for instance that the federal government might mandate. It used the chain of custody that is used for routine medical care. There was no chain of custody policy for obtaining samples involving these type of cases or any other cases in the emergency room. (III 135-136, 137). Amber Jbara, the complainant's best friend, testified to her conversation with the complainant about what happened to her. When the witness told appellant that she saw the bruises, he seemed surprised. (V-6) During her testimony, the prosecution asked the following: Q. So when Mr. Callanan asked you these complicated questions trying to confuse the record, I just want it to be clear for the jury. . . . (V-27). During the prosecution's recross of Dr. Eisenga, the following was asked: Q. So you have added opinions as this case has progressed and the Defense has requested that you come up with more opinions, you've added opinion in this case, such to come up with an explanation as to what happened to Ms. Roddy? A. I have reassessed the case certainly. 7

The prosecution then asked how much the witness was paid. (VII 69). Police Officer Bruce Roderick testified that he had not heard of GHB in 1999. (VII-85). Sgt. Newsome testified that Officer Schreiner said to her in regard to interviewing the defendant ". . . And he lawyered up, you can't talk to him." (VII 105). When asked if she tried to get the liquor containers from the Wiecek home, she answered no because he had a lawyer and had invoked his Fifth Amendment right. (VII 114-115). Officer Newsome discovered that the FBI was not conducting tests for GHB because it was not a federally regulated drug. (VII 112). Canton Police Department had no protocol in place concerning GHB and there was no law enforcement testing of blood and urine for date rape drugs. (VII 150). She also testified that the Wiecek's family computer was removed pursuant to the execution of a search warrant. But there was no evidence on the computer to show he had looked up anything on GHB. (VII-132). This witness explained that an assistant prosecuting attorney had told her to have the complainant call Mr. Wiecck up and see if she could get him to make admissions on the phone but he would not talk. (VII 129-131). On redirect, the prosecutor asked a burden shifting question. (VII-173). She also asked questions concerning the attorney's pre-arrest efforts to get the case dismissed. (VII-I 75). She testified that information from the defendant's school was used to finally get the warrant. (VII-I77). Trial counsel cross examined the witness on the defendant's use of an attorney. The trial judge had to stop the questioning. (VII 133-134). During the direct examination of Catherine Zeni, the prosecution brought out that the defendant and his parents came to her house to help in getting an attorney. (VIII 38-39). On September 30, 2002 after the prosecution rested, the defense moved for a directed verdict. (IX 33-38). The defense continued to argue that the scientific evidence offered by the prosecution was inadequate and noted that articles in scientific journals acknowledged by both Dr. Jackson and Ms. Pearson reported that endogenous levels of GHB in the urine can be as high as 6.5 micrograms. (IX-36). The motion was denied. (IX-42). The defendant did not testify and the defense rested. The motion for directed verdict was renewed and the court again denied it. (XI 44-45). Appellant's Br. on Appeal, in People v. Wiecek, No. 247596 (Mich. Ct. App.), at 1-6 C. Standard of Review Because petitioner's application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). 8

Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). "[T]he `contrary to' and `unreasonable application' clauses [have] independent meaning." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). "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 [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S. at 694. "[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

9

U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409. By its terms, § 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." Thus, "§ 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Williams, 529 U.S. at 412. Further, the "phrase `refers to the holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.' In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412). Although "clearly established Federal law as determined by the Supreme Court" is the benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) "does not require citation of [Supreme Court] cases­indeed, 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, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements of "clearly established law" are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.). D. Confrontation (Claim I) Petitioner first contends that he was denied his Sixth Amendment right to confront the

10

witnesses against him when he was prohibited from questioning the victim concerning a poem she had written. The Court should conclude that petitioner is not entitled to habeas relief on this claim. 1. Clearly Established Law

The Sixth Amendment provides, in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The Confrontation Clause is applicable to the states through the 14th Amendment's Due Process Clause. Pointer v. Texas, 480 U.S. 400, 406 (1965). The Supreme Court's "Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination." Delaware v. Fensterer, 474 U.S. 15, 18 (1985) (per curiam). The latter category, which is implicated in petitioner's claims, recognizes that "[c]onfrontation means more than being allowed to confront the witness physically." Davis v. Alaska, 415 U.S. 308, 315 (1974). Thus, in cases where the trial court has restricted cross-examination in some manner, "the Court has recognized that Confrontation Clause questions will arise because such restrictions may `effectively . . . emasculate the right of cross-examination itself.'" Fensterer, 474 U.S. at 19 (quoting Smith v. Illinois, 390 U.S. 129, 131 (1968)). However, the Supreme Court has also explained that the Confrontation Clause does not "guarantee cross-examination that is effective in whatever way and to whatever extent the defense might wish." Fensterer, 474 U.S. at 20. The question is whether the trial court's ruling allowed for "substantial compliance with the purposes behind the confrontation requirement," or, put another way, whether petitioner was "significantly limited in any way in the scope or nature of his crossexamination." Green, 399 U.S. at 166. Thus, "[s]o long as cross-examination elicits adequate

11

information to allow a jury to assess a witness's credibility, motives, or possible bias, the Sixth Amendment is not compromised by a limitation on cross-examination." United States v. Cueto, 151 F.3d 620, 638 (7th Cir. 1998); see also, United States v. Larranaga, 787 F.2d 489, 498 (10th Cir. 1986). 2. Analysis

Petitioner's claim focuses on the trial court's exclusion of the victim's journal, which was found in petitioner's house on the day following the sexual assault. The journal contained a poem describing an alcoholic blackout: I woke up confused I woke up drunk I woke up and hit my head on my nightstand Wait a second that's not my nightstand Where the hell am I. And who's that sleeping next to me? I better run I better hide `cause I don't know What I did last night ... I woke up confused I didn't know where I was except that I had gone to an apartment complex Too bad I woke up in a car Br. in Supp. of Pet., Ex. 6. At trial, part of petitioner's theory was that the victim was not unconscious and physically helpless, but had experienced an alcoholic blackout. In support of this theory, petitioner presented Dr. Bernard Eisenga as an expert witness. Dr. Eisenga testified that people suffering from an 12 with somebody else's clothes on and no bra I didn't think this would happen again Drinking is just for those who have nothing else to do I guess I did plenty and now I [k]now whom [illegible] Knocking at the window told me I wasn't allowed to be here anymore So I went inside and ended up naked again At least it was a familiar face this time At least I know his last name I guess that makes it okay to do it again.

alcoholic blackout "may appear to be awake and coherent but, in reality, they are not," and that such people "basically have an amnesic period of time where they don't remember what's going on. They may appear to be functioning normally, but they are not." Trial Tr., dated 9/26/02, at 31-32. On cross-examination of the victim, counsel elicited from her that she had not had an alcoholic blackout prior to the date of the sexual assault, but that she had had subsequent blackouts. See Trial Tr., dated 9/19/02, at 43-44. Prior to trial, however, the court had ruled at a preliminary hearing that the poem from the journal was not admissible as character evidence under Rule 404(a), and that introduction of the poem was barred by the rape shield statute, MICH. COMP. LAWS § 750.520j. See Def.'s Br. on App., Ex. 2a; Trial Tr., dated 9/17/02, at 7-12. On appeal, the Michigan Court of Appeals rejected petitioner's claims that this evidence was improperly excluded and that the exclusion of the evidence violated petitioner's right to confront the victim. The court concluded that the poem "was not admissible for the purpose of proving the victim's character under MRE 404(a)(2), as in effect at that time, because the rule expressly precluded such evidence in a prosecution for criminal sexual conduct." Wiecek, 2005 WL 292193, at *5, slip op. at 5. The court also held that exclusion of the evidence pursuant to the rape shield statute did not violate petitioner's right to confront the victim because the sexual conduct described in the poem was not relevant. With respect to consent and physical helplessness, the court reasoned that the poem was undated and may have described a fictional event. Further, even if the poem described actual events, "the evidence had little or no relevancy to the issue of the victim's consent with defendant with regard to the charged incident." Id. at *6, slip op. at 6. The court also rejected petitioner's argument that the poem was relevant to the victim's motive to testify as she did. The court explained that petitioner argued that the victim did not claim that a sexual assault had occurred

13

until she had been informed by the examining doctor that she had been subjected to GHB poisoning, and that the victim had grasped this as her excuse rather than face her drinking problem. "However," the court explained, "nothing in the journal excerpts tends to establish or make more likely than not this theory of motive, and therefore the exclusion of the journal excerpts neither abridged defendant's right of confrontation, nor constituted an abuse of discretion by the trial court." Id. Although this issue presents a close question, the court of appeals's determination was not an unreasonable application of clearly established federal law, and thus the Court should conclude that petitioner is not entitled to habeas relief on this claim. "Like most States, Michigan has a `rape-shield' statute designed to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior." Michigan v. Lucas, 500 U.S. 145, 146 (1991). Michigan's rape shield law provides: Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g [the sexual conduct offense provisions] unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value: (a) evidence of the victim's past sexual conduct with the actor; (b) evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease. MICH. COMP. LAWS § 750.520j(1). The statute further provides that, if a defendant seeks to introduce evidence under (a) or (b), he must give notice of his intent to do so within ten days of the arraignment. See id. § 750.520j(2). In support of his claim, petitioner relies principally upon the Supreme Court's decision in Davis v. Alaska, supra. In that case, the Court held that the Sixth Amendment right to confront witnesses guarantees a criminal defendant the right to cross-examine adverse witnesses to expose

14

bias and motivations for testifying. See id. at 315-16; see also, Delaware v. Van Arsdall, 475 U.S. 673, 678-80 (1986). However, the Davis Court limited its Confrontation Clause decision to those facts going to a witness's bias or motive in testifying, as opposed to general attacks on credibility. The Court's decision in Van Arsdall was similarly limited. Indeed, in his concurring opinion in Davis, Justice Stewart emphasized that the Davis "Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination" concerning past convictions. Davis, 415 U.S. at 321 (Stewart, J., concurring). Thus, there is no clearly established federal law as determined by the Supreme Court, within the meaning of § 2254(d)(1), which establishes a criminal defendant's right to cross-examine a witness to expose issues relating to general credibility, as opposed to bias and motives for testifying. As the Sixth Circuit has explained: although Davis trumpets the vital role cross-examination can play in casting doubt on a witness's credibility, not all conceivable methods of undermining credibility are constitutionally guaranteed. In particular, the Davis Court distinguished between a "general attack" on the credibility of a witness­in which the cross-examiner "intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony"­and a more particular attack on credibility "directed toward revealing possible biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the case at hand." Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000) (quoting Davis, 415 U.S. at 316). The Court in Davis found only the latter, particularized attack on bias and motivation, to be a protected aspect of the right to confrontation. See Boggs, 226 F.3d at 737. As the Sixth Circuit explained in Boggs, "[c]ourts after Davis and Van Arsdall have adhered to the distinction drawn by those cases and by Justice Stewart in his concurrence­that cross-examination as to bias, motive or prejudice is constitutionally protected, but cross-examination as to general credibility is not." Boggs, 226 F.3d

15

at 737; see also, Quinn v. Haynes, 234 F.3d 837, 844-45 (4th Cir. 2000); Reiger v. Christensen, 789 F.2d 1425, 1433 (9th Cir. 1986). Here, there is no question that the area of cross-examination which counsel for petitioner sought to explore went to general credibility, rather than to a bias or motive for testifying. Petitioner argues that the evidence would have shown, contrary to her trial testimony, that the victim had suffered previous alcohol induced blackouts. Although petitioner attempts to argue that the poem would implicate the victim's motive to testify, nothing in the poem speaks to her motive in any way. Rather, the poem merely describes an instance of sexual activity following an alcoholic blackout. It does not shed light on why the victim testified as she did in petitioner's case. Thus, under Boggs, this restriction on cross-examination did not infringe on petitioner's Sixth Amendment confrontation rights. It matters not that the credibility of these witnesses was central to the prosecution's case: No matter how central an accuser's credibility is to a case . . . the Constitution does not require that a defendant be given the opportunity to wage a general attack on credibility by pointing to individual instances of past conduct. In other words, [petitioner]'s argument that credibility is crucial to this case, and that therefore any evidence bearing on credibility must be allowed in, simply does not reflect Sixth Amendment caselaw. Under Davis and its progeny, the Sixth Amendment only compels cross-examination if that examination aims to reveal the motive, bias or prejudice of a witness/accuser. Boggs, 226 F.3d at 740 (emphasis in original).2

Petitioner relies primarily on Davis and Van Arsdall in support of his claim. I have explained above why these cases do not support petitioner's claim for relief. Petitioner also relies heavily on two other cases, Alford v. United States, 282 U.S. 687 (1931) and Olden v. Kentucky, 488 U.S. 227 (1988). Neither of these cases supports petitioner's confrontation claims. Both of these cases were bias/motive cases, not general credibility cases. See Alford, 282 U.S. at 693; Olden, 488 U.S. at 231-32. The Supreme Court has repeatedly described Alford as a bias/motive case. See Davis, 415 U.S. at 317-18; United States v. Abel, 469 U.S. 45, 49 (1984). And, although the Supreme Court has not cited Olden since that case was decided, the federal courts of appeals likewise describe Olden as a bias/motive case. See Boggs, 237 F.3d at 737; Quinn, 234 F.3d at 844. Thus, for the same reasons that Davis and Van Arsdall do not support petitioner's claims, Alford and Olden likewise provide petitioner with no basis for habeas relief. 16

2

In support of his claim, petitioner relies extensively on the Sixth Circuit's decision in Lewis v. Wilkinson, 307 F.3d 413 (6th Cir. 2002). However, Lewis is distinguishable because it is a case involving evidence of the victim's motive to testify. In Lewis, the petitioner sought to introduce several statements from the victim's journal. The trial court prohibited cross-examination regarding one journal entry in which the victim wrote: I can't believe the trial's only a week away. I feel guilty (sort of) for trying to get Nate locked up, but his lack of respect for women is terrible. I remember how disrespectful he always was to all of us girls in the courtyard . . . he thinks females are a bunch of sex objects! And he's such a player! He was trying to get with Holly and me, and all the while he had a girlfriend. I think I pounced on Nate because he was the last straw. That, and because I've always seemed to need some drama in my life. Otherwise I get bored. That definitely needs to change. I'm sick of men taking advantage of me . . . and I'm sick of myself for giving in to them. I'm not a nympho like all those guys think. I'm just not strong enough to say no to them. I'm tired of being a whore. This is where it ends. Lewis, 307 F.3d at 417. The Sixth Circuit concluded that the trial court's ruling prohibiting the petitioner from cross-examining the victim regarding this journal entry was an unreasonable application of Davis because the journal entry went to the victim's motive in testifying. The court explained: In this court's view, the excluded excerpts are evidence of consent and motive, as argued by appellant. For example, the excluded statements: "I'm just not strong enough to say no to them" and "this is where it ends", when read together with the admitted statements: "I'm sick of men taking advantage of me" and "I think I pounced on Nate because he was the last straw," could reasonably be read as Heaslet pursuing rape charges against Lewis as a way of taking a stand against all the men who previously took advantage of her. The excluded statement: "I'm just not strong enough to say no to them" may be construed as evidence that Heaslet consented to have intercourse with Lewis. The trial court concluded that the references to "them" in the excluded statements, as opposed to the specific references to "Nate" used previously in the same diary entry, render the later statements generic, misleading, and ambiguous. However, this court believes the statements can reasonably be taken to infer consent and motive, and should have been given to the jury to make the ultimate determination.

17

Id. at 420-21. Here, unlike in Lewis, the poem with which petitioner sought to cross-examine the victim did not provide any evidence of either consent or her motive to testify. With respect to consent, in Lewis there was a fair inference that the statements implying consent referenced the specific sexual incident for which the petitioner in that case was charged. Here, on the contrary, it is undisputed that the poem, even if describing an actual event, described an event prior to the sexual assault for which petitioner was charged. Further, the poem does not provide any indication of consent. It describes what appears to be a sexual encounter following either an alcoholic blackout or unconsciousness. The poem is equally indicative of a prior sexual assault based on the victim's physical incapacitation as it is of consensual sex, and in any event it does not in any way relate to the incident involving petitioner. As to motive, in Lewis the statements­particularly that the victim had "pounced" on the petitioner and was "sick of men taking advantage of me"­suggested that the victim was "pursuing rape charges against Lewis as a way of taking a stand against all the men who previously took advantage of her." Lewis, 307 F.3d at 421. Here, on the contrary, nothing in the poem suggests that the victim "grasped" at the GHB poisoning to avoid confronting her own drinking problems. To be sure the poem, if describing an actual event, provides evidence that the victim had a drinking problem which caused her to black out and/or engage in sexual activity. However, nothing in the poem, either standing alone or in conjunction with the other evidence in the case, suggests any motive on the part of the victim to "run" from her alcohol problem by falsely accusing petitioner. And, in any event, even if there are some similarities between this case and Lewis, the dissimilarities between the journal entry in Lewis and the poem in this case are great enough that it cannot be said that the court of appeals's determination that the poem did not go to

18

consent or motive was unreasonable. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. E. Prosecutorial Misconduct (Claim II) Petitioner next contends that he was denied a fair trial by several instances of prosecutorial misconduct. Specifically, he contends that the prosecutor committed misconduct by: (1) arguing facts not in evidence; (2) eliciting evidence of petitioner's exercise of his rights to remain silent and to counsel; (3) impugning defense counsel; (4) vouching for the credibility of witnesses; and (5) shifting the burden of proof to petitioner. The Court should conclude that petitioner is not entitled to habeas relief on these claims. 1. Clearly Established Law

For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not enough that the prosecutor's conduct was "undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. (internal quotation omitted). "[T]he touchstone of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). In determining whether the prosecutor's conduct was so egregious as to warrant habeas relief, a court should consider "the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury; and the strength of the competent proof to establish the guilt of the accused." Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (internal quotations and citations omitted). In sum, to constitute a denial of due process the prosecutor's conduct must be "so pronounced and

19

persistent that it permeates the entire atmosphere of the trial." Id. (internal quotation omitted). 2. Analysis a. Arguing Facts Not in Evidence Petitioner first argues that the prosecutor argued facts not in evidence when characterizing Dr. Eisinga's testimony regarding the cause of the victim's loss of bowel control. The prosecution's expert testified that the loss of bowel control could only be explained by the victim having ingested GHB. Petitioner countered with the testimony of Dr. Eisinga, who testified that a person drinking alcohol and sitting in a hot tub could suffer a vasovagal response, or "hysterical fainting," which could cause a loss of bowel control. See Trial Tr., dated 9/26/02, at 27-28. He also testified that overconsumption of alcohol alone could cause a loss of bowel control. See id. at 30. On crossexamination, he admitted that loss of bowel control due to alcohol consumption was not common, but that he had "seen it happen." Id. at 50-51. During her closing argument, the prosecutor stated: "You heard estimates on the witness stand by some of the experts, it's possible it happened like that. Have you seen one case where that's happened? Eisinga, for example, about losing bowel control. It's not possible." Id., dated 9/30/02, at 94. Although the prosecutor undoubtedly mischaracterized Dr. Eisinga's testimony concerning the loss of bowel control, petitioner cannot show that he was denied a fair trial by this comment. The relationship between the loss of bowel control and alcohol consumption was relevant to the charges involving the GHB. The prosecutor, through her witnesses and during summation, went to great lengths to attempt to show that the loss of bowel control was indicative solely of GHB poisoning. Petitioner countered with expert testimony and argument that overconsumption of alcohol could cause loss of bowel control. Petitioner, however, was acquitted on the two charges

20

relating to GHB poisoning. With respect to the charge on which petitioner was convicted­sexual penetration of a physically helpless victim­it was the fact of the loss of bowel control which was relevant to whether the victim was physically helpless regardless of whether the loss of bowel control resulted from GHB or alcohol poisoning. There was no dispute as to the fact that the victim had lost control of her bowel in the hot tub. Because the cause of that loss of bowel control was irrelevant to the charge for which petitioner was convicted, petitioner cannot show that the comment deprived him of a fair trial. At a minimum, he cannot show that the Michigan Court of Appeals's conclusion based on this reasoning, see Wiecek, 2005 WL 292193, at *2, slip op. at 2, was unreasonable. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. b. Evidence of Petitioner's Exercise of Rights to Remain Silent and Counsel Petitioner next contends that he was denied a fair trial because the prosecutor elicited from witnesses that petitioner had invoked his rights to remain silent and to counsel. In support of petitioner's claim, he points to several incidents at trial: · The prosecutor asked the first police officer on the case, David Schreiner, whether he had attempted to interview petitioner. Schreiner testified that he had left messages for petitioner, but had not spoken to him. See Trial Tr., dated 9/26/02, at 94. On cross-examination, defense counsel asked Schreiner if he had gotten a call from defense counsel giving notice that he was representing petitioner, and Schreiner indicated that when a person is represented, any further contact would occur through counsel. See id. at 101. On redirect, the prosecutor asked: "[Defense counsel] never showed up with his client for you to interview, did he?" Id. Defense counsel objected to the question, and the objection was sustained. See id. at 102. During the questioning of Officer Newsome, the prosecutor asked: "Do you recall the first time you found out about the Diane Roddy case?" Id. at 104. Newsome indicated that she got the case from Schreiner, and that "[t]he only thing I remember him saying, basically, about this case initially was, [h]ere's a CSC. The victim doesn't recall anything; you know, can't remember 21

·

anything about the rape. And he lawyered up, you can't talk to him. And she was unsure whether or not she wanted to prosecute, and we're waiting on a rape test kit." Id. at 105. · Later during the questioning of Newsome, the prosecutor asked if she had tried to obtain any containers from the home. See id. at 114. Newsome responded: "Ma'am, by the time I got this he had already obtained defense counsel. He invoked his Fifth Amendment right. I don't mean to infer anything by that, that was perfectly fine. He didn't want to speak with us." Id. at 115.3 Again during Newsome's testimony, the prosecutor asked a series of questions relating to Newsome's attempt to obtain a warrant and to have the victim phone petitioner to elicit an incriminating statement. See id. at 129. Newsome testified that this idea originated with a special prosecutor from whom she sought a warrant. The prosecutor then asked: "Pursuant to her instructions then, you did what?" Id. Newsome responded: "There was some conversation between ourselves, obviously. She got involved and she started doing some investigation as well, interviewed Diana and called most of the people that I had as experts. She was questioning as to why, you know, we had not questioned or attempted to talk to Dustin, Mr. Wiecek, even with his attorney present. I just told her that, you know, I know he's a very competent attorney. I think it would be a total waste of my time. I didn't feel comfortable doing that." Id. at 130. During cross-examination of defense witness Catherine Zeni, petitioner's neighbor, the prosecutor asked whether petitioner and his mother had asked for Zeni's help in obtaining a lawyer, and whether Zeni had given them the name of a lawyer. Zeni responded that she had. See id. at 38-39. Zeni agreed that she had done so because her son was a friend of petitioner, and because she did not want to see anything bad happen to petitioner. See id. at 39.

·

·

Petitioner contends that these statements from the witnesses amounted to improper comments on his right to remain silent and to counsel. The Michigan Court of Appeals, reviewing the claim for plain error because petitioner had failed to object at trial, rejected petitioner's claim. The court

Both the court of appeals and petitioner here identify this comment as coming during crossexamination. The transcript, however, indicates that it occurred during the prosecutor's direct examination. The September 26, 2002, transcript indicates that defense counsel's cross-examination begins at page 132. 22

3

concluded that Newsome's comment that petitioner had "lawyered up" was not plain error because there was "no indication that the challenged testimony was anticipated by the prosecutor," and because "the context of the remark was not intended to suggest that defendant was guilty because he had obtained a lawyer." Wiecek, 2005 WL 292193, at *2, slip op. at 3. The court of appeals found that the second comment by Newsome did not amount to prosecutorial misconduct because it was elicited by defense counsel. See id. at *3, slip op. at 3. The court found no plain error in Newsome's third comment because "[t]he testimony was elicited in the context of explaining why the police contemplated attempting a pretext phone call to defendant by the victim. Viewed in context, there was no attempt to suggest that defendant's exercise of either his right to silence or his right to counsel implied he was guilty." Id. Finally, the court found no plain error in the questions to Zeni, because "the testimony was relevant to the issue of Zeni's bias toward defendant and her credibility as a witness and did not amount to plain error." Id. Certainly, some of the comments identified by petitioner were less than ideal, and were this Court an appellate court with supervisory powers over the trial court petitioner's claim would arguably be deserving of relief. The question here, however, is whether the court of appeals's rejection of petitioner's claim was an unreasonable, rather than simply incorrect, application of clearly established federal law. The Court should conclude that the court of appeals's decision was reasonable, and thus that petitioner is not entitled to habeas relief on this claim. While a prosecutor must refrain from suggesting to the jury that a defendant hired an attorney to generate an alibi or get his "story straight," Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990), habeas relief is not appropriate where the prosecutor's comment or a witness's testimony offers no suggestion that the petitioner's hiring of an attorney establishes his or her guilt. See Ridley

23

v. Walter, No. 99-35240, 1999 WL 1040089, at *1 (9th Cir. Nov. 5, 1999). Here, neither the witnesses nor the prosecutor explicitly or implicitly suggested that petitioner was guilty because he had hired an attorney. Rather, the statements from Newsome were made to explain why she did or did not do certain things, an issue which was relevant in light of counsel's suggestion throughout the case that the police had not properly investigated the matter. Further, Newsome explicitly stated that she did not mean to imply anything by noting that petitioner had retained counsel. Similarly, the questions to Ms. Zeni were relevant to show that she had a close relationship with petitioner and his mother, and thus that she was biased in petitioner's favor. Viewed in context, it was reasonable for the court of appeals to conclude that these statements from the witnesses did not suggest that petitioner was guilty because he had hired an attorney, and the court's rejection of petitioner's claim was therefore a reasonable application of federal law. See United States v. Tocco, 200 F.3d 401, 422-23 (6th Cir. 2000) (brief introduction of evidence that defendant had consulted an attorney did not warrant reversal because "the mere act of hiring an attorney is simply not probative of [the defendant's] guilt or innocence under the circumstances."); Noland v. French, 134 F.3d 208, 216 (4th Cir. 1998) (habeas relief not warranted where prosecutor's comment on petitioner's invocation of his Miranda rights was used only to show the timing of certain events, not to suggest that petitioner was guilty of the crimes charged); Fellman v. Poole, No. C 90-20007, 1993 WL 248693, at *3 (N.D. Cal. June 28, 1993), aff'd, 33 F.3d 58 (9th Cir. 1994) (habeas relief not warranted based on prosecutor's reference to petitioner's hiring of an attorney where prosecutor "never equated or insinuated that Petitioner's use of counsel showed his guilt."). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. c. Impugning Defense Counsel

24

Petitioner next argues that the prosecutor improperly impugned his defense counsel and expert witness. During questioning of the victim's friend, Amber Jbara, the prosecutor prefaced a question: "So when [counsel] asked you those complicated questions trying to confuse the record, I just want it to be clear for this jury as to what is in your statement and what Ms. Roddy told you . . . ." Trial Tr., dated 9/23/02, at 27. On cross-examination of petitioner's expert, the prosecutor suggested that the expert had changed his opinions: "So you have added opinions as this case has progressed and the Defense has requested that you come up with more opinions, you've added opinions in this case, such to come up with an explanation as to what happened to Ms. Roddy?" Id., dated 9/26/02, at 69. Dr. Eisenga responded: "I have reassessed the case, certainly," and explained that he had done so in light of new facts which were brought to light and developments in the science involved as reflected in scientific literature. See id. During rebuttal, the prosecutor argued that defense counsel had attempted to put the victim on trial and had "crossed the line" by questioning the victim regarding the death of her mother. See id., dated 9/30/02, at 128-29. Also during rebuttal, the prosecutor responded to defense counsel's argument that the police had inadequately investigated the case: So what's lacking that he points to? You know, we didn't go get the clothes. You know what? He was lucky, maybe, Mr. Wiecek, in some respects, this happened on a Friday night. She went to the hospital Saturday. You heard testimony that the detectives work half a day on Saturday and, unfortunately, something happened, the road sergeant, somebody didn't notify the detective on duty, he didn't get it until Monday. Sunday night Mr. Wiecek has a lawyer. So that's what happened as far as the sequence of what happened. Id. at 132. Petitioner cannot show that he was denied a fair trial by these comments. The question to the victim's friend was part of a permissible attempt by the prosecutor "to clarify Jbara's testimony

25

regarding whether the victim told her that defendant had sex with her while she was unconscious." Wiecek, 2005 WL 292193, at *3, slip op. at 4. The prosecutor's question to Dr. Eisenga was appropriate in light of Dr. Eisenga's testimony regarding the evolution of his opinion in the case, and in any event Dr. Eisenga explained the basis for the development of his opinion. The prosecutor's comment that defense counsel had crossed the line by questioning the victim about the death of her mother was part of a broader, legitimate argument that this was simply irrelevant to the case. Finally, the prosecutor's comment describing petitioner's "luck" that the assault had occurred on a Friday night was a fair response to defense counsel's assertion that the police had not properly investigated the matter. Cf. United States v. Emenogha, 1 F.3d 473, 481 (7th Cir. 1993) (trial was not fundamentally unfair where prosecutor disparaged defense counsel by stating: "Now, Ms. Carotheres went on at length about the evidence the government presented where there were no tapes of this, no videotapes of that, no da da da da, da da da. Well, can you imagine if we left the investigation of this case to a criminal defense attorney what kind of evidence we would have?"); cf. Darden v. Wainwright, 477 U.S. 168, 182 (1986) (one factor in evaluating claims of prosecutorial misconduct is whether the prosecutor's statement was "invited by or was responsive to the [argument] of the defense."). Accordingly, the Court should conclude that petitioner is not entitled to relief on this claim. d. Vouching Petitioner also argues that the prosecutor improperly vouched for the victim when she rebutted defense counsel's assertion that the victim had touched petitioner in the hot tub by stating that the victim denied any sexual contact: "That has been her testimony at the exam, throughout these proceedings, and on this stand. She's never had sexual contact." Trial Tr., dated 9/30/02, at

26

136. Improper vouching occurs either (1) "when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the [prosecutor's office] behind that witness," or (2) through "comments that imply that the prosecutor has special knowledge of facts not in front of the jury." United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999); see also, United States v. Emuegbunam, 268 F.3d 377, 404 (6th Cir. 2001).4 The prosecutor's comment did not express a personal belief in the victim's credibility; rather, the prosecutor suggested that the victim was credible because her story had not changed over time. Nor did the prosecutor suggest that facts not in front of the jury supported the victim's testimony. While it is true that the transcript of the preliminary examination testimony was not in front of the jury, defense counsel did impeach the victim with her testimony from the preliminary examination, in which she stated that there may have been "contact" because the hot tub was small, but the victim also testified in response to this impeachment that she did not mean there had been any sexual contact. See Trial Tr., dated 9/19/02, at 67-71. Thus, the prosecutor's comment was a fair inference from the victim's testimony at trial, particularly the victim's testimony in response to defense counsel's impeachment of her. Petitioner also argues that the prosecutor vouched for her case by eliciting from Newsome that the prosecutor's office had approved a search warrant and that a magistrate had determined that there was probable cause to issue the warrant. See Trial Tr., dated 9/26/02, at 175-77. However, this exchange occurred in response to defense counsel's cross-examination of Newsome, in which he elicited or attempted to elicit from Newsome that there had been some discussion with the

Some cases referring to only the first type of comment as "vouching" and describe the second type of comment as "bolstering." See Francis, 170 F.3d at 551. 27

4

prosecutor's office about dropping the case, and that the search had been improperly conducted. See id. at 165-68. The questions were thus a fair response to counsel's insinuation that the police had acted improperly. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. e. Shifting Burden of Proof Finally, petitioner contends that the prosecutor impermissible shifted the burden of proof by stating, during opening argument: "[A]nd listen carefully, because I don't know what the defendant is going to say, if the defendant gets up here and starts talking about consent, that she consented, and the ability of somebody like that to consent in that sort of helpless state." Trial Tr., dated 9/18/02, at 149. Petitioner contends that this statement shifted the burden of proof to him on the issue of consent. However, nothing in the statement suggests that petitioner had any obligation to come forward with any evidence of consent, or that petitioner bore the burden of proving that the defendant had consented. Rather, the prosecutor merely asked the jury to listen carefully to any evidence of consent which petitioner might offer, and to consider that evidence in light of the evidence of the victim's physical helplessness. Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim. F. Judicial Partiality (Claim IV) Petitioner next contends that he was denied a fair trial because the trial judge pierced the veil of impartiality during his questioning of a defense witness. The Court should conclude that petitioner is not entitled to habeas relief on this claim. 1. Clearly Established Law

Perhaps "[n]o right is more fundamental to the notion of a fair trial than the right to an

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impartial judge." Bracy v. Gramley, 81 F.3d 684, 696 (7th Cir. 1996) (Rovner, J., dissenting), rev'd, 520 U.S. 899 (1997); see also, MASS. CONST. of 1780, pt. 1, art. 29. Thus, "the Due Process Clause clearly requires a `fair trial in a fair tribunal,' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Bracy, 520 U.S. at 904-05 (citation omitted) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)). "Because judicial bias infects the entire trial process it is not subject to harmless error review." Maurino v. Johnson, 210 F.3d 638, 645 (6th Cir. 2000) (citing Chapman v. California, 386 U.S. 18, 23 & n. 8 (1966)); see also, Rose v. Clark, 478 U.S. 570, 577 (1986) (citing Tumey v. Ohio, 273 U.S. 510 (1927)). Habeas relief on the basis of judicial bias is appropriate only if "the state trial judge's behavior rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). As a general matter, habeas relief will be appropriate only upon a showing that the trial judge was actually biased or prejudiced against the petitioner. See Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994). However, in exceptional circumstances "the likelihood of bias or appearance of bias can, in certain circumstances, be so substantial as to create a conclusive presumption of actual bias." Id. (internal quotation omitted). The appearance of bias situation is limited to cases in which "a judge is faced with circumstances that present some actual incentive to find one way or the other[,]" id. (internal quotation omitted); see also, Del Vecchio v. Illinois Dep't of Corrections, 31 F.3d 1363, 1372 (7th Cir. 1994) (en banc), such as where the judge has a pecuniary interest in the outcome or has been the target of repeated abuse by one of the parties. See Six v. Delo, 885 F. Supp. 1265, 1271 (E.D. Mo. 1995), aff'd, 94 F.3d 469, 478 (8th Cir. 1996). As the Supreme Court has noted in the context of the federal recusal statute, "[t]he alleged

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bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also, Liteky v. United States, 510 U.S. 540, 549-51 (1994); Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988). For this reason, judicial rulings alone almost never constitute a valid basis for a bias or partialit