Saunders v. Romanowski

Filing 16

MEMORANDUM OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus and Granting a Certificate of Appealability. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
QUNTIUS SAUNDERS,
Petitioner,

Case Number 2:11-CV-14863
Honorable Arthur J. Tarnow

v.
KENNETH ROMANOWSKI,
Respondent.
_______________________________/

OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY
Quntius Saunders, ("Petitioner"), presently incarcerated at the Macomb Regional
Correctional Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The petition challenges his November 30, 2009, Wayne Circuit Court convictions
for armed robbery, MICH. COMP. LAWS § 750.529, and carjacking. MICH. COMP. LAWS §
750.529(a). Petitioner received concurrent terms of 10-to-15 years imprisonment. The
petition raises a single claim: Petitioner’s right to confront witnesses was denied when the
out-of-court statements made by a non-testifying victim were admitted at trial. The Court
will deny the petition because the claim is without merit. The Court will grant Petitioner a
certificate of appealability.
I. Background
This Court recites verbatim the relevant facts relied upon by the Michigan Court of
Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

The complainant [Matthew Reese] in this matter testified that he
contacted defendant, whom he had not previously known, via an interactive
chat line and then arranged to meet defendant in person. Defendant provided
directions to the complainant and, when the complainant arrived at the
directed location, he parked his car in the street and saw defendant standing
in a driveway. Defendant identified
himself to the complainant and the two then began walking toward the house.
At that time, defendant grabbed the complainant and pushed him against the
house while another man emerged from the bushes and held a gun to the
complainant’s head. The men took the complainant’s coat, wallet, cell phone,
and car keys.
The complainant ran to another house, and the occupants allowed him
to call the police from their phone. While the complainant waited for the
police, he saw defendant and the other man get into his car and drive it
away.
The complainant was talking with a police officer when another man,
Mr. Andrew, approached the officer and said he, too, had just been
carjacked. Andrew told the officer, Officer Pawl, that he had located his car
in a parking lot and when Officer Pawl drove the complainant and Andrew to
the parking lot, they saw defendant attempting to put keys in the door of
Andrew’s car. Defendant was thereafter arrested and charged with armed
robbery and carjacking.
People v. Saunders, No. 296130, 2011 WL 1616750, *1 (Mich. Ct. App. Apr 26,
2011).
Based on this evidence Petitioner was convicted and sentenced as indicated above.
Petitioner filed an appeal in the Michigan Court of Appeals. His appellate counsel
filed a brief that raised the following claims:
I. Mr. Saunders was denied a fair trial where the trial court abused its
discretion in granting the prosecution’s motion to allow similar acts evidence,
and when the necessary witness failed to appear to establish the similar acts,
the court allowed the prejudicial testimony anyway.
II. Mr. Saunders was denied a fair trial because the trial court
allowed hearsay testimony regarding the alleged similar acts
thereby denying Mr. Saunders his constitutional right to
confront his accuser.

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The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
opinion. Id.
Petitioner subsequently filed an application for leave to appeal in the Michigan
Supreme Court, raising the following claims:
I. Mr. Saunders was denied a fair trial because the trial court allowed hearsay
testimony regarding the alleged similar acts evidence thereby denying his
constitutional right to confront his accuser.
II. Ineffective assistance of trial counsel for failure to object. The prosecutor’s
witness failed to appear. Trial counsel did not object to evidence of Matthew
Reese carjacking and armed robbery. Samaj Andrews failed to appear and
the testimony was allowed. Andrews was on trial.
The Michigan Supreme Court denied the application because it was not persuaded
that the questions presented should be reviewed by the Court. People v. Saunders, 490
Mich. 861 (2011) (unpublished table decision).

II. Standard of Review
28 U.S.C. § 2254(d) provides:
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 [*10]
determination of the facts in light of the evidence presented in the State court
proceedings.
28 U.S.C. § 2254(d).

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"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 v. Taylor, 529 U.S. 362, 405-06
(2000)). "[T]he 'unreasonable application' prong of the statute 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).
However, "[i]n order for a federal court 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 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "A state
court's determination that a claim lacks merit precludes federal habeas relief so long as
'fairminded jurists could disagree' on the correctness of the state court's decision."
Harrington v. Richter, 562 U.S. , 131 S. Ct. 770, 789, 178 L. Ed. 2d 624 (2011), (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that
habeas corpus is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal. . . . As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Id. at 786-87 (internal quotation omitted).
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Section 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 at the time the state court renders its decision. See
Williams, 529 U.S. at 412. Section 2254(d) "does not require citation of [Supreme Court]
cases — indeed, 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 v.
Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly established law" are to be
determined solely by resort to Supreme Court rulings, the decisions of lower federal courts
may be instructive in assessing the reasonableness of a state court's resolution of an
issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox,
340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich.
2002).
Lastly, a federal habeas court must presume the correctness of state court factual
determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only
with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998).
III. Discussion
Petitioner claims that his confrontation rights were violated by the admission at trial
of Andrews’s statement to police that he had just been carjacked, and identifying Petitioner
as the man who committed the crime. Respondent asserts that Petitioner’s confrontation
rights were not implicated because Andrews’s out-of-court statement was nontestimonial
as it related to an ongoing police emergency.

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The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. “The Sixth Amendment’s right of an accused to
confront the witnesses against him is ... a fundamental right and is made obligatory on the
States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965). The
rights of confrontation and cross-examination “have ancient roots” which the “Court has
been zealous to protect . . . from erosion.” Id. at 404-05 (internal quotation omitted).
In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme Court held that
the Confrontation Clause bars “admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” As Crawford and its progeny make clear, it is only
out-of-court statements with a “testimonial character” with which the Confrontation Clause
is concerned. See Davis v. Washington, 547 U.S. 813, 821 (2006).
Although the Supreme Court did not define “testimonial” in Crawford, it has provided
guidance in subsequent cases. Generally, “[s]tatements are nontestimonial when made in
the course of police interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.” Id. at 821. Thus, in Davis, 547 U.S. 813, the Supreme Court held that
statements made to a 9-1-1 operator while the complainant was still in danger were
nontestimonial but statements made to a police officer and written in an affidavit after the
danger had dissipated were testimonial. Because the informal statements in Davis
explained “events as they were actually happening” and “were necessary to be able to
resolve the present emergency,” they were nontestimonial. Id. at 827. By contrast, because
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the more formal statements were “neither a cry for help nor the provision of information
enabling officers immediately to end a threatening situation,” Id. at 832, but rather “part of
an investigation into possible criminal past conduct,” Id. at 829, they were testimonial.
The Supreme Court recently had occasion to apply Davis in Michigan v. Bryant, 131
S. Ct. 1143 (2011). In Bryant, the statements at issue were made to the police by the
mortally-wounded victim of a shooting as he lay dying in a gas station parking lot. Bryant,
131 S. Ct. at 1151. The victim explained to police that as he was leaving defendant Bryant’s
house, Bryant shot him through the door. Id. The victim told the police that after being shot
he drove to the gas station where police found him. Id. Despite the fact that the statements
were made at a location and time removed from the initial incident, the Court held that they
were nontestimonial. The Court likened the situation to the “informal, harried 9-1-1 call in
Davis.” Id. at 1166. It also found significant, among other things, that the “[t]he police did
not know, and [the victim] did not tell them, whether the threat was limited to him” and
reasoned that thus “the potential scope of the . . . emergency in this case stretches more
broadly than those at issue in Davis.” Id. at 1164.
Davis and Bryant teach that statements must be evaluated in the context of the
circumstances in which they are made. For example, in distinguishing the results in Davis
and Crawford, the Davis Court highlighted: (1) the content of the declarant's statement,
noting that she spoke about events as they were actually happening, rather than describing
past events; (2) the perspective of the declarant, who was facing an ongoing emergency,
rather than simply reporting a crime; (3) the nature of what was asked and answered, which
involved questions and answers relevant to resolve the emergency; and (4) the relative
level of informality of the interview, which was conducted by a 911 operator in a chaotic
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atmosphere. Davis, 547 U.S. at 827. The Court acknowledged that nontestimonial
statements may evolve into testimonial ones as the circumstances surrounding the
conversation change, noting that "trial courts will recognize the point at which, for Sixth
Amendment purposes, statements in response to interrogations become testimonial." Id.
at 828-29; Bryant, 131 S.Ct. at 1159.
In the present case, the trial record shows that as the police were preparing to take
the victim in their patrol car to the police station, they were “flagged down” by another man.
The officers stopped the patrol car and spoke with the man:
A: He too stated that he called the interactive male chat line and talked to,
um, a gentleman that stated to come over to the area of 7677 Westwood.
Q: Okay. And did he indicate that anything had been taken from him?
A: He stated that . . . he pulled up in the location of Westwood and Sawyer
and one suspect came up to him and said what’s up and another came from
behind him and pulled a gun on him. They put a sweatshirt over his face and
they took his jacket, some other items and his vehicle.
Q: Okay. Were you ever given any information of where this vehicle may be
located?
A: The second victim stated that he checked the area on foot for the vehicle
and he found it in a parking lot.
*

*

*

Q: Did you go to that location?
A: Yes, we did.
Q: And what did you observe as you arrived at that location?
A: it was an empty parking lot. As we were pulling in that parking lot, I saw
his vehicle, and we got closer, there was a gentleman standing, putting a key
in the door.

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Tr. 11/30/09, pp. 101-103. The officer then testified that the man standing next to the
vehicle was Petitioner, and that the victim identified him as the perpetrator.
The context and circumstances of the second victim’s statement indicate that it was
nontestimonial. The second victim was talking about an event that had just happened and
was directing the police to where his car was currently located. From the perspective of the
second victim, he was asking the police to respond to an ongoing event and asking for
assistance in retrieving his car. The nature of what was asked and answered involved
questions and answers relevant to resolve the ongoing situation, and not to build a case
against a known suspect. It obviously appeared to the police that the unknown perpetrators
had set up a string of at least two robberies and might still be operating in the area. Lastly,
the discussion between the second victim and the police was informal and conducted in a
chaotic atmosphere.
That is, nothing about the statement bore the hallmarks of a testimonial statement.
See, e.g., Williams v. Illinois, 132 S. Ct. 2221, 2242-43, 183 L. Ed. 2d 89 (2012) (plurality
opinion) & 2250-51 (Breyer, J., concurring) (noting that in every post-Crawford decision
finding a Confrontation Clause violation, "the statement at issue had the primary purpose
of accusing a targeted individual," rather than an as yet unidentified suspect); United States
v. Dodds, 569 F.3d 336, 340-41 (7th Cir.) cert. denied, 130 S. Ct. 523 (2009) (holding that
a description of an armed gunman by an unidentified witness was not testimonial because
the statement was made to assist the police in resolving an ongoing emergency); United
States v. Proctor, 505 F.3d 366, 371 (5th Cir. 2007) (per curiam), cert. denied, 552 U.S.
1236, 128 S. Ct. 1457, 170 L. Ed. 2d 285 (2008) (finding statements made to 9-1-1

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operator identifying assailant and describing past events as nontestimonial because they
were made "immediately after" assailant had run away from the scene).
Because the statements to the police by the second victim were nontestimonial,
Petitioner’s confrontation rights were not implicated. The claim is therefore without merit,
and the petition must be dismissed.
IV. Conclusion
Based on the foregoing analysis, the Court concludes that Petitioner’s claim is
without merit and he has failed to demonstrate entitlement to habeas relief. Accordingly,
the Court DISMISSES the petition for writ of habeas corpus.
Before Petitioner may appeal this decision, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may
issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claim debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). In applying this standard, a court may not conduct a full merits review,
but must limit its examination to a threshold inquiry into the underlying merit of the claims.
Id. at 336-37. The Court concludes that a certificate of appealability is warranted in this
case because reasonable jurists could debate the Court’s assessment of Petitioner’s claim.
The Court will also allow Petitioner permission to proceed on appeal in forma pauperis.
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After conducting the required inquiry and for the reasons stated herein, the Court is
satisfied that jurists of reason could find the Court's decision debatable. A certificate of
appealability is warranted in this case. Accordingly, the Court GRANTS a certificate of
appealability.
IT IS SO ORDERED.

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: May 9, 2013
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on May 9, 2013, by electronic and/or ordinary mail.
s/Catherine A. Pickles
Judicial Assistant

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