Elizondo v. Bauman
Filing
13
MEMORANDUM AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,AND GRANTING IN PART A CERTIFICATE OF APPEALABILITY Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARIO ELIZONDO,
Petitioner,
Case No. 12-15443
v.
HON. AVERN COHN
CATHERINE S. BAUMAN,
Respondent.
_____________________________/
MEMORANDUM AND ORDER
DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,
AND
GRANTING IN PART A CERTIFICATE OF APPEALABILITY
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Petitioner Mario Elizondo
("Petitioner") is a state prisoner at the Thumb Correctional Facility in Lapeer, Michigan.
He was convicted of first-degree and second-degree criminal sexual conduct and is
serving concurrent prison terms of twenty-five to fifty years and one to fifteen years,
respectively. Petitioner claims that other "bad acts" evidence was erroneously admitted
at his trial without notice, that the prosecutor's remarks deprived him of a fair trial, and
that the trial court pierced the veil of judicial impartiality by assuming the role of a
prosecutor.
Respondent Catherine S. Bauman ("Respondent"), through the Michigan
Attorney General, has filed a response to the petition, arguing that Petitioner's claims
were not exhausted in state court, are not cognizable on habeas review, are
procedurally defaulted, or do not warrant habeas relief.
The Court held oral arguments on Petitioner's claim that the trial court pierced the
veil of judicial impartiality by assuming the role of a prosecutor. The parties
subsequently filed supplemental papers. The supplemental papers have been received.
The matter is ready for decision. For the reasons that follow, the petition will be denied.
However, the Court will issue a certificate of appealability on Petitioner’s judicial bias
claim.
II. Background
The charges against Petitioner arose from allegations that he engaged in sexual
activity with a young girl, whom the Court will refer to as "K.M." The Michigan Court of
Appeals provided the following brief overview of the facts:
In 2010, 11–year–old K.M., her three older brothers, and her
mother resided with 53–year old defendant and his wife and children due
to financial reasons. In September of that year, defendant and K.M. were
in his room putting together a puzzle when defendant pushed K.M. down
on the bed, removed K.M.'s pants and underwear and his own, then
began touching her genitals. Defendant had K.M. touch his genitals as
well. Defendant's wife walked into the room and began screaming when
she saw what was happening, at which point K.M. went downstairs and
told her mother what had just occurred. K.M. was taken to a hospital and
examined, and the police were notified.
People v. Elizondo, No. 303333, 2012 WL 2335910, at *1 (Mich. Ct. App. June 19,
2012). The Court of Appeals also provided the following additional summary of the
testimony at Petitioner's jury trial in Wayne County Circuit Court:
Melissa Elizondo, defendant's wife, testified that she saw the victim and
defendant facing each other on a bed and that both were naked from the
waist down, kissing each other. The victim was touching defendant's
genitals. Melissa further testified that defendant told her he was in love
with the victim and that since they were all going to die in 2012, the victim
would not have the opportunity after that. The victim's mother testified
that the victim told her that defendant forced her to touch his penis and
that he touched her vagina, and the victim also testified to the events of
2
that day. The prosecution presented evidence that defendant confessed
to Nancy Doss, the Child Protective Services worker, that he penetrated
the victim's vagina with his finger. The prosecution also presented
evidence that defendant told the victim's brother and Officer Craig
Cieszkowski that he was in love with the victim and that because the world
was going to end in 2012, she would not have an opportunity to have such
an experience.
Id. at *2. On February 10, 2011, the jury found Petitioner guilty, as charged, of one
count of criminal sexual conduct in the first degree, see Mich. Comp. Laws § 750.520b
(sexual penetration of a person under thirteen years of age by a person seventeen
years of age or older), and one count of criminal sexual conduct in the second degree,
see Mich. Comp. Laws § 750.520c (sexual contact with a person under thirteen years of
age by a person seventeen years of age or older).
At Petitioner's sentencing on March 8, 2011, a substitute prosecutor informed the
trial court that the trial prosecutor failed to strike a statement from K.M.'s medical record
and sent the unredacted copy of the record to the jury. The substitute prosecutor
maintained that the error did not change anything because there was overwhelming
evidence of Petitioner's guilt. Defense counsel, however, moved for a new trial on the
ground that the evidence was prejudicial. The trial court responded without elaboration,
"The Court is going to deny that." The trial court then sentenced Petitioner as described
above.
In an appeal of right, Petitioner raised the following claims: (1) the trial court
erred by not granting a new trial based on the prosecutor's admission of other "bad
acts" evidence in the unredacted medical record; (2) the prosecutor's closing arguments
violated his right to due process of law and a fair trial; and (3) the trial court pierced the
veil of judicial impartiality and deprived him of a fair trial by taking on the role of the
3
prosecutor. The Michigan Court of Appeals rejected these claims and affirmed
Petitioner's convictions in an unpublished, per curiam opinion. See Elizondo, 2012 WL
2335910, at *1.
Petitioner raised the same claims and one additional claim in the Michigan
Supreme Court. The additional claim alleged that the unredacted statement in K.M.'s
medical report was inadmissible and irrelevant evidence and more prejudicial than
probative. Petitioner also claimed that he did not have an opportunity to challenge the
evidence before it was admitted. On November 20, 2012, the Michigan Supreme Court
denied leave to appeal because it was not persuaded to review the issues. See People
v. Elizondo, 822 N.W.2d 778 (Mich. 2012) (table).
Petitioner then filed the instant petition through counsel. Petitioner raises the
following claims in an amended petition:
I. The trial court erred in not granting a new trial where the prosecutor
admitted prejudicial other "bad acts" evidence through unredacted medical
records and denied Petitioner his due process right to a fair trial;
II. The prosecutor's arguments to the jury deprived him of a fair trial and
his right to due process of law;
III. He was denied his constitutional right to a fair trial where the trial court
pierced the veil of judicial impartiality by taking on the role of the
prosecutor; and
IV. The unredacted statement contained in the medical report was
inadmissible, irrelevant, and more prejudicial than probative and the
defense did not have an opportunity to challenge the evidence before it
was admitted.
Respondent filed an answer to the amended petition in which she urges the
Court to dismiss the petition on grounds that Petitioner's first claim is not cognizable on
habeas review, his second claim is procedurally defaulted, and he did not exhaust state
4
remedies for his fourth claim. Additionally, Respondent argues that, for the claims
which the state court addressed and rejected on the merits, the state court's ruling was
not contrary to, or an unreasonable application of, clearly established Supreme Court
precedent.
III. 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
determination of the facts in light of the evidence presented in the State
court proceedings.
28 U.S.C. § 2254(d).
"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 § 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's decisions but unreasonably applies
that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520
5
(2003) (quoting Williams, 529 U.S. at 413).
"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. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Accordingly,
[w]hen reviewing state criminal convictions on collateral review, federal
judges are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were
wrong. Federal habeas review thus exists as "a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal." Harrington, supra, at 102–103,
131 S.Ct. 770 (internal quotation marks omitted).
Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam). "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." Harrington, 562 U.S. at 103.
In simple terms, the Supreme Court has said that the standard of review is
"difficult to meet" and is a "highly deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit of the doubt." Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington, 562 U.S. at 102, and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). The Supreme Court has
further said that a federal court must guard against "using federal habeas corpus review
as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett,
559 U.S. 766, 779 (2010).
Finally, a federal habeas court must presume the correctness of state court
6
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).
IV. Petitioner's Claims
A. "Bad Acts" Evidence
In his first and fourth claims, Petitioner alleges that the trial court erroneously
denied his motion for new trial after a substitute prosecutor disclosed at sentencing that
the trial prosecutor failed to redact KM's medical report.1 The medical report included a
statement that "[b]oth patient and mother state that this is not the first time patient has
been molested by perp." The parties had agreed to redact that statement from the
medical report, but the trial prosecutor forgot to delete the statement before she
admitted the report in evidence and offered it to the jury. (Sentencing Tr., 2-3, Mar. 8,
2011.)
Petitioner claims that the unredacted statement was inadmissible, irrelevant, and
prejudicial "bad acts" evidence, which deprived him of due process and his right to a fair
trial. He contends that the evidence showed he was a bad person and that he acted in
1
Respondent maintains that Petitioner failed to exhaust state remedies for his
fourth claim because he raised the claim in the Michigan Supreme Court, but not in the
Michigan Court of Appeals. While it is true that, to be properly exhausted, each habeas
claim must have been fairly presented to the state court of appeals and to the state
supreme court, Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009), the exhaustion rule
is not jurisdictional, Castille v. Peoples, 489 U.S. 346, 349 (1989), and Petitioner's fourth
claim does not warrant habeas relief. The Court therefore excuses the alleged failure to
exhaust state remedies and proceeds to the merits of Petitioner's claims. "An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts of the State."
28 U.S.C. § 2254(b)(2).
7
conformity with his bad character. He further alleges that he was not given proper
notice of the "bad acts" evidence or an opportunity to argue for its exclusion from the
report.
1. The State-Court Decisions
As noted above, defense counsel moved for a new trial when the substitute
prosecutor brought the issue of the unredacted medical report to the trial court's
attention at sentencing. Defense counsel argued that the disputed sentence in the
medical report was prejudicial and that the trial court could have given a curative jury
instruction if counsel had known during trial that the unredacted report was being
admitted in evidence. The trial court denied the motion for new trial without elaboration.
See id. at 3.
The Michigan Court of Appeals determined on direct appeal that the trial court
did not abuse its discretion by denying Petitioner's motion for new trial. The Court of
Appeals noted that the inadvertently admitted evidence was highly relevant and would
have been admissible under Mich. Comp. Laws § 768.27a, which states that, "in a
criminal case in which the defendant is accused of committing a listed offense against a
minor, evidence that the defendant committed another listed offense against a minor is
admissible and may be considered for its bearing on any matter to which it is relevant."2
As for the prosecutor's failure to give timely notice of intent to use the evidence,
the Michigan Court of Appeals pointed out that Petitioner had not suggested any basis
for objecting if notice had been given. The Court of Appeals concluded that the lack of
2
"The listed offenses include the various forms of criminal sexual conduct."
People v. Dobek, 732 N.W.2d 546, 567 n.16 (Mich. Ct. App. 2007).
8
notice did not have a significant effect on the proceedings and did not merit reversal of
Petitioner's conviction. The Court of Appeals further concluded that, given the amount
of evidence supporting Petitioner's convictions, the single unredacted line in the medical
report likely was not outcome determinative.
2. Analysis
Petitioner is not entitled to habeas relief on this claim because "[t]here is no
clearly established Supreme Court precedent which holds that a state violates due
process by permitting propensity evidence in the form of other bad acts evidence."
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Consequently, "there is no
Supreme Court precedent that the trial court's decision could be deemed 'contrary to'
under [§ 2254(d)(1)]." Id. at 513. Petitioner's personal disagreement with the state
court's ruling on other "bad acts" evidence "is not cognizable on federal habeas review,
inasmuch as it involves no constitutional dimension." Bey v. Bagley, 500 F.3d 514, 523
(6th Cir. 2007).
Similarly, Petitioner's contention that the prosecutor circumvented the notice
requirement of Michigan Rule of Evidence 404(b) and failed to satisfy the three-part
admissibility test of People v. VanderVliet, 508 N.W.2d 114, 126 (Mich. 1992), and
People v. Sabin, 614 N.W.2d 888, 895-96 (Mich. 2000), is not a basis for habeas relief.
"In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502
U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241 and Rose v. Hodges, 423 U.S. 19, 21
(1975) ( per curiam)). "[F]ederal habeas corpus relief does not lie for errors of state
law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (citing Pulley v. Harris, 465 U.S. 37, 41
9
(1984), and Hodges, 423 U.S. at 21-22). The Court therefore declines to grant relief on
Petitioner's first and fourth claims. The claims are not cognizable on habeas review and
do not warrant habeas relief.
B. The Prosecutor's Conduct
The second habeas claim alleges that the prosecutor's remarks during closing
arguments deprived Petitioner of a fair trial and his right to due process of law.
Petitioner contends that the prosecutor embellished the facts, vouched for her
witnesses and evidence, injected her personal opinion into the proceedings, relied on
facts not in evidence, and usurped the jury's fact-finding function.
1. Procedural Default
Respondent argues that Petitioner's prosecutorial-misconduct claim is
procedurally defaulted. A procedural default is "a critical failure to comply with state
procedural law." Trest v. Cain, 522 U.S. 87, 89 (1997). The doctrine of procedural
default prohibits a federal court from reviewing the merits of a habeas petitioner's
claims, including constitutional claims, if a state court declined to hear the claims
because the petitioner failed to abide by a state procedural rule. Martinez v. Ryan, 132
S. Ct. 1309, 1316 (2012). An exception to the procedural-default doctrine applies if the
prisoner "can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,
750 (1991).
In this Circuit
"[a] habeas petitioner's claim will be deemed procedurally defaulted if each
10
of the following four factors is met: (1) the petitioner failed to comply with
a state procedural rule; (2) the state courts enforced the rule; (3) the state
procedural rule is an adequate and independent state ground for denying
review of a federal constitutional claim; and (4) the petitioner has not
shown cause and prejudice excusing the default." [Jalowiec v. Bradshaw,
657 F.3d 293, 302 (6th Cir. 2011)]. To determine whether a state
procedural rule was applied to bar a habeas claim, [courts] look "to the last
reasoned state court decision disposing of the claim." Guilmette v.
Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
2. Application of the Factors
In Michigan, defendants in criminal cases are required to preserve their claims
for appeal by first making an objection in the trial court. People v. Carines, 597 N.W.2d
130, 137-39 (Mich. 1999). When there is no contemporaneous objection to
prosecutorial misconduct or no request for a curative instruction regarding the
prosecutor's misconduct, "review is limited to ascertaining whether plain error affected
defendant's substantial rights." People v. Brown, 755 N.W.2d 664, 679 (Mich. Ct. App.
2008) (citing People v. Callon, 662 N.W.2d 501, 513 (Mich. Ct. App. 2003)); see also
People v. Meissner, 812 N.W.2d 37, 47 (Mich. Ct. App. 2011) (stating, "[w]e review
claims of prosecutorial misconduct to determine whether the defendant received a fair
trial. Unpreserved arguments are reviewed for plain error that affected the defendant's
substantial rights") (internal and end citations omitted).
Petitioner admits in his habeas petition that he did not object to the prosecutor's
remarks at trial. Amended Pet. for Writ of Habeas Corpus, at p. 32. Thus, the first
element of procedural default is satisfied.
The second element of procedural default is enforcement of a state procedural
rule. The Michigan Court of Appeals was the only state court to adjudicate Petitioner's
11
prosecutorial-misconduct claim in a reasoned opinion. It reviewed Petitioner's claim for
"plain error affecting a defendant's substantial rights" because Petitioner did not
preserve the issue for appellate review. Elizondo, 2012 WL 2335910, at *3. A state
appellate court's review for "plain error" constitutes enforcement of a state procedural
rule. Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (citing Seymour v. Walker,
224 F.3d 542, 557 (6th Cir. 2000) (citing Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th
Cir. 1989)). Consequently, the second element of procedural default is satisfied.
The third element of procedural default requires determining whether the state
procedural rule was an adequate and independent state ground for denying review of a
federal constitutional claim. "The adequacy of a state procedural bar turns on whether it
is firmly established and regularly followed; a state rule is independent if the state court
actually relies on it to preclude a merits review." Biros v. Bagley, 422 F.3d 379, 387 (6th
Cir. 2005) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004)).
"[T]he procedural rule requiring objection below to preserve an issue on appeal is
both firmly established and regularly followed by Michigan state courts," Morgan v.
Lafler, 452 F. App’x 637, 647 (6th Cir. 2011) (citing Carines, 597 N.W.2d at 138-39),
and the Michigan Court of Appeals actually relied on the rule to foreclose relief in this
case. Therefore, the state appellate court's ruling was an adequate and independent
state ground for denying review of Petitioner's constitutional claim.
The fact that the Court of Appeals also addressed the merits of Petitioner's claim
"does not require [this Court] to disregard the state court's finding of procedural bar."
Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998). As explained in Harris v. Reed, 489 U.S.
255 (1989),
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a state court need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate and independent
state ground doctrine requires the federal court to honor a state holding
that is a sufficient basis for the state court's judgment, even when the
state court also relies on federal law. See Fox Film Corp. v. Muller, 296
U.S. 207, 210, 56 S.Ct. 183, 184, 80 L.Ed. 158 (1935). Thus, by applying
this doctrine to habeas cases, [Wainwright v.] Sykes [433 U.S. 72 (1977)]
curtails reconsideration of the federal issue on federal habeas as long as
the state court explicitly invokes a state procedural bar rule as a separate
basis for decision. In this way, a state court may reach a federal question
without sacrificing its interests in finality, federalism, and comity.
Id. at 264 n.10 (emphasis in original).
To summarize, Petitioner violated a relevant state procedural rule, the last state
court to review his claim in a reasoned opinion enforced the rule, and the rule was an
adequate and independent state ground for precluding review of Petitioner's federal
claim. Therefore, federal habeas review of Petitioner's prosecutorial-misconduct claim
is barred unless he can "demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to consider [his]
claim[] will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
3. Cause and Prejudice; Miscarriage of Justice
Petitioner has not asserted "cause" for his procedural default, and, in the
absence of cause and prejudice, a petitioner can proceed with a procedurally defaulted
claim only if he "demonstrate[s] that the failure to consider [his claim] will result in a
fundamental miscarriage of justice. A fundamental miscarriage of justice results from
the conviction of one who is 'actually innocent.' " Lundgren v. Mitchell, 440 F.3d 754,
764 (6th Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). "To be
credible, such a claim requires petitioner to support his allegations of constitutional error
with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy
13
eyewitness accounts, or critical physical evidence – that was not presented at trial."
Schlup v. Delo, 513 U.S. 298, 324 (1995). "A petitioner's burden at the gateway stage
is to demonstrate that more likely than not, in light of the new evidence . . . any
reasonable juror would have reasonable doubt." House v. Bell, 547 U.S. 518, 538
(2006).
Petitioner has not produced any new evidence of actual innocence, and the
evidence against him at trial was substantial. Therefore, a miscarriage of justice will not
result from the Court's failure to address Petitioner's prosecutorial-misconduct claim on
the merits. The claim is procedurally defaulted.
C. The Trial Court
In his third claim, Petitioner alleges that the trial court pierced the veil of judicial
impartiality by taking on the role of the prosecutor during the prosecutor's crossexamination of him. According to Petitioner, the trial court's questions bolstered the
prosecution's case, revealed the court’s bias, and gave the jury the impression that the
court found Petitioner’s testimony to be incredible. Petitioner contends that the trial
court's questions impeached his testimony, as opposed to, clarifying or explaining the
testimony.
The Michigan Court of Appeals rejected Petitioner's claim, but Petitioner
contends that the Court of Appeals minimized the significance of the trial court's inquiry.
Petitioner asserts that the Court of Appeals failed to consider the number of times the
trial court questioned Petitioner, the form and tone of the trial court's questions, and the
fact that the questions assumed facts premised on bias. Respondent, on the other
hand, argues that the Supreme Court has not addressed the precise issue before the
14
Court and, therefore, under Donald, it cannot be said that the state appellate court's
decision was contrary to, or an unreasonable application of, any Supreme Court
decision.
1. Legal Framework
"[T]he 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 v. Gramley, 520 U.S. 899, 904-905 (1997) (internal and end
citation omitted. "Trial judges have a wide latitude in conducting trials, but they must
carefully preserve an attitude of impartiality and scrupulously avoid giving the jury an
impression that the judge believes the defendant is guilty." Harrington v. Iowa, 109 F.3d
1275, 1280 (8th Cir. 1997) (quotation marks and citations omitted). "No matter what the
evidence was against [the defendant], he had the right to . . . an impartial judge."
Tumey v. Ohio, 273 U.S. 510, 535 (1927). Thus, the right to an unbiased judge is not
subject to harmless error analysis. Gomez v. United States, 490 U.S. 858, 876 (1989)
(quoting Gray v. Mississippi, 481 U.S. 648, 668 (1987)).
Nevertheless, a trial judge is not a mere moderator in a jury trial; he or she "is the
governor of the trial for the purpose of assuring its proper conduct and of determining
questions of law." Quericia v. United States, 289 U.S. 466, 469 (1933).
[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display
a deep-seated favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge. They may do
so if they reveal an opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of favoritism or
15
antagonism as to make fair judgment impossible. . . . Not establishing
bias or partiality, however, are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect
men and women . . . sometimes display. A judge's ordinary efforts at
courtroom administration—even a stern and short-tempered judge's
ordinary efforts at courtroom administration—remain immune.
Liteky v. United States, 510 U.S. 540, 555-56 (1994) (emphases in original).3 Further,
[i]n collateral proceedings, the test is "whether the errors alleged . . . could
have rendered [the] trial fundamentally unfair." Buckelew v. United States,
575 F.2d 515, 518 (5th Cir. 1978). To violate a defendant's right to a fair
trial, "a trial judge's intervention in the conduct of a criminal trial would
have to reach a significant extent and be adverse to the defendant to a
substantial degree." Daye v. Attorney General of New York, 712 F.2d
1566, 1572 (2d Cir. 1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79
L.Ed.2d 184 (1984).
McBee v. Grant, 763 F.2d 811, 818 (6th Cir. 1985).
Matters of personal bias generally do not rise to a constitutional level. Railey v.
Webb, 540 F.3d 393, 400 (6th Cir. 2008) (citing Tumey v. Ohio, 273 U.S. 510, 523
(1927)). To prevail on his claim, Petitioner must show "there was bias, or such a
likelihood of bias or an appearance of bias that the judge was unable to hold the
balance between vindicating the interests of the court and the interests of the accused."
Ungar v. Sarafite, 376 U.S. 575, 588 (1964).
2. The Disputed Interruptions
Petitioner complains of five instances in which the trial court interrupted the
prosecutor's cross-examination to personally question him. The Court addresses each
instance below.
3
Although Liteky "addresses the statutory recusal standards for federal judges,
see 28 U.S.C. § 455, [the Sixth Circuit Court of Appeals] has relied on the decision in
assessing judicial-bias claims under the Due Process Clause . . . ." Lyell v. Renico, 470
F.3d 1177, 1186 (6th Cir. 2006) (citing Alley v. Bell, 307 F.3d 380, 386 (6th Cir. 2002)).
16
a.
In the first instance, the trial court questioned Petitioner about his testimony on
direct examination that he awoke from sleep when someone kissed him and that he was
shocked to see he had his arms around K.M., because he thought that he was kissing
his wife. (Trial Tr., 114, Feb. 9, 2011.) The trial court interrupted the prosecutor's
subsequent cross-examination of Petitioner, saying:
THE COURT: (Interposing) Well, let me ask you a question. Wait
a minute. Let me ask you a question.
THE WITNESS [Petitioner]: Yes.
THE COURT: You said that you felt somebody kissing you, and then you
heard your wife scream.
THE WITNESS: Right.
THE COURT: Okay. Your wife is about how tall?
THE WITNESS: Um. I don't know.
THE COURT: Okay.
THE WITNESS: Five, somethin'. I don't know.
THE COURT: Over five – over five, two, right?
THE WITNESS: I – I have no idea.
THE COURT: Okay. How much would you say she weighs?
THE WITNESS: (No response)
THE COURT: Since you know how much you weigh?
THE WITNESS: Well, everybody knows how much I weigh, I'm big.
THE COURT: I know. No, but I'm saying you know how much you
weight (sic), so how much does your wife weight (sic), about?
17
THE WITNESS: (No response)
THE COURT: Over one, fifty?
THE WITNESS: Probably.
THE COURT: Okay. And the victim in this matter, [K.M.],
weighed about how much during that time?
THE WITNESS: I have no idea.
THE COURT: Okay. But probably less than your wife, is that
correct?
THE WITNESS: Probably.
THE COURT: Okay. Was she a little shorter than your wife?
THE WITNESS: At the time, I didn't – you know, I was being
awoke (sic) by a kiss. I wasn't paying attention to height, weight.
THE COURT: Okay.
THE WITNESS: There was only one person that's ever come to
room (sic) to even give me a kiss.
THE COURT: Okay, but that's not my question to you.
THE WITNESS: Yes.
THE COURT: She is much smaller than your wife, is that correct?
THE WITNESS: Not much.
THE COURT: Okay, very good. Go ahead.
(Id. at 119-21.)
Petitioner claims that the trial court's questions signaled to the jury that it was
unreasonable for him to believe that it was his wife and not the minor victim who was in
bed with him. The Michigan Court of Appeals, however, interpreted the trial court's
questions as "material questions" that were not asked by the attorneys. The Court of
18
Appeals stated that Petitioner's "wife's height and weight [were] highly material in light of
defendant's claim that he believed the person kissing him was his wife, an adult woman,
and not the victim, an 11–year–old girl." Elizondo, 2012 WL 2335910, at *5. The Court
of Appeals concluded that, even though the trial court's questions may have damaged
Petitioner's credibility, the questions were not improper and did not pierce the veil of
judicial impartiality.
b.
The next instance of judicial questioning occurred when the prosecutor asked
Petitioner about his conversation with Ms. Doss, who worked for Children's Protective
Services. Petitioner testified that he told Ms. Doss he did not do anything and that, from
what he had heard, K.M. touched him, as opposed to him touching her. The trial court
interrupted, saying:
THE COURT: (Interposing) Wait a minute. Hold on for a minute.
You said from what you heard. Who did you hear that from?
THE WITNESS: Pardon me?
THE COURT: When you said that's what you heard, that the girl touched
you?
THE WITNESS: I heard that from my wife, who said that my – her
hands were on my thing. I– I did not know, because basically I waited
until - THE COURT: (Interposing) So, wait a minute. Hold on for a
minute. So, your wife said that your hand – that [K.M.'s] hand was on your
penis?
THE WITNESS: Yes.
THE COURT: You didn't – you didn't feel that?
THE WITNESS: No, I did not.
19
THE COURT: But you felt that kiss?
THE WITNESS: The kiss? Yes, I did feel the kiss.
THE COURT: Okay, go ahead.
(Trial Tr., 125-26, Feb. 9, 2011.)
Petitioner asserts that the trial court's question about what he felt assumed the
very fact in question and seemed to discard his testimony. The Michigan Court of
Appeals stated that, although the trial court's question may have been
tinged with a suggestion of disbelief, the question could also be viewed as
an attempt to clarify defendant's testimony. The trial court limited its
questions in scope only to clarify defendant's statement that he had only
heard that the victim had touched him, but did not feel it. The fact that the
trial court damaged defendant's credibility through its questioning does not
render the questions improper.
Elizondo, 2012 WL 2335910, at *6.
c.
The third disputed incident of judicial questioning occurred when the prosecutor
resumed questioning Petitioner about his conversation with Ms. Doss, the Children's
Protective Services worker. The prosecutor asked Petitioner whether he knew it was
more serious to put his finger in someone's vagina, as opposed to merely touching a
person's genitals. After a brief objection by defense counsel, which the trial court
sustained, the prosecutor said, "[W]hen you spoke with Ms. Doss. . . ." The trial court
then interrupted and said:
THE COURT: (Interposing) No. Let me ask you a question.
When you spoke to Ms. Doss, and she asked you about whether or
not you put your penis in her – you heard her say that?
THE WITNESS: Yes, I did.
20
THE COURT: Okay. And you responded no.
THE WITNESS: I responded, no, I didn't touch her.
THE COURT: Okay. All right. Because you believed that if you
put your penis in a child, there was something wrong with that, right?
THE WITNESS: I couldn't if I wanted to. And if I did, I had – I had
grown woman (sic) that couldn't handle it. I'm sorry, but, you know, I
have been a large man for all my life.
THE COURT: Okay, that's – okay. Go ahead. You can ask
another question.
(Trial Tr., 130-31, Feb. 9, 2011.) The Michigan Court of Appeals did not address these
questions and answers on direct appeal.
d.
The fourth incident occurred when the prosecutor asked Petitioner whether he
told the police following his arrest that "this wasn't a big deal, except that [his] wife
walked in on [him]." (Id. at 135.) Petitioner responded to the prosecutor's question by
saying that, in his opinion, "something a child does, even if it's wrong, . . . it can be
corrected without sitting there and making a big thing out of it." (Id.) The trial court then
said:
THE COURT: (Interposing) Making a big thing out of it?
THE WITNESS: Correct.
THE COURT: What do you mean about that?
THE WITNESS: Well, I mean when a – when a child does
something that's peculiar, or strange, or something they shouldn't have did
(sic), you can't help a children's (sic) mind, what they're doing. I – we
were all children, once. We all got in trouble once in a great while. But,
you know, I couldn't explain what happened.
[THE PROSECUTOR]: The question I had was -21
....
THE COURT: (interposing) But wait a minute. You didn't think it
was appropriate for the police to handle it because this child was just
basically acting out a fantasy?
THE WITNESS: I believe it was something that the –her mother,
and the rest of the family, could sit there and discuss, and maybe
straighten it out a lot better. I -THE COURT: (Interposing) Than the police?
THE WITNESS: The police were involved.
THE COURT: You think that the family could have done a better
job than the police?
THE WITNESS: Well, I believe – I believe that it wouldn't have cost
the state that much. I wouldn't have been tooken (sic) away from my
family as long as I was.
(Id. at 135-36.)
Petitioner contends that the trial court's comments demonstrated a disregard for
his testimony that it was the child who acted inappropriately and, therefore, he did not
find it necessary to call the police. But the Michigan Court of Appeals determined that
[t]he trial court's questions were not such that they would arouse suspicion
in the jury. The trial court was merely asking defendant to elaborate on
his statement. And, from the answers given by defendant, it was clear
that defendant was trying to explain that he was innocent and felt the
incident was a kiss and touching undertaken by a child that could have
been addressed by the family. Again, similar to the previous analyses, the
trial court was attempting to elicit from defendant the meaning behind his
statement that the incident did not warrant the making of a "big thing."
Elizondo, 2012 WL 2335910, at *6.
e.
The fifth and final incident of alleged judicial misconduct occurred a few
questions later when the prosecutor asked Petitioner whether he ever told his wife that
he thought it was her in bed with him. Petitioner responded that he had tried to tell his
22
wife, but that she would not listen to him. The trial court then said:
THE COURT: Well, wait a minute. Hold on for a minute.
You said that you tried to tell your wife. But didn't you say or just testify
that your wife told you that [K.M.'s] hand was on your penis?
THE WITNESS: That is correct.
THE COURT: Okay. Go ahead.
(Trial Tr., 137-38, Feb. 9, 2011.) The Michigan Court of Appeals stated that, "[t]o the
extent that the question could be deemed to exhibit disbelief on the trial court's part or
arouse suspicion in the jury regarding defendant's credibility, the substantial amount of
evidence against defendant excluding the trial court's question renders the error
harmless." Elizondo, 2012 WL 2335910, at *6.
3. Application
The excerpts of trial quoted above indicate that the trial court was either seeking
clarification from Petitioner or trying to elicit the truth. "No Supreme Court precedent
holds it unconstitutional for a trial judge to seek clarification from witnesses at trial."
Wenglikowski v. Jones, 306 F. Supp. 2d 688, 695 (E.D. Mich. 2004). A trial judge's
function, moreover, is
to conduct the trial in an orderly way with a view to eliciting the truth and to
attaining justice between the parties. It is [the court's] duty to see that the
issues are not obscured and that the testimony is not misunderstood.
[The court] has the right to interrogate witnesses for this purpose.
Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir.1956).
Furthermore, in a similar case, not on habeas review, where the trial court
actively injected himself in a defendant's trial, the Sixth Circuit declined to grant a new
trial even though the trial court interrupted counsel twenty-eight times during a relatively
23
short proceeding. See United States v. Tilton, 714 F.2d 642 (6th Cir. 1983). The Sixth
Circuit stated in Tilton that, even though the trial court's questioning "went beyond that
generally expected of one who is to take on the role of a neutral arbiter," the Sixth
Circuit was "unable to say that it so clearly crossed the line to reach that area of
impermissible and prejudicial behavior which would warrant reversal of the appellant's
conviction." Id. at 644. The reason for this conclusion was "principally because the
interruptions appeared to go in both directions, affecting the defendant and the
prosecution." Id. (emphasis in original).
In Petitioner's case, the trial court interrupted and questioned prosecution
witnesses as well as Petitioner. See, e.g., Trial Tr., 25-29, 39, and 44, Feb. 9, 2011 (the
trial court's questioning of K.M.); id. at 68, 77, 80-81 (the trial court's interruptions and
questions directed to Petitioner's wife Melissa); id. at 89-90, 92, 97 (the trial court's brief
interruptions during the questioning of Ms. Doss, the Children's Protective Services
worker; id. at 101-03 (the trial court's interruption of the direct examination of police
officer Craig Cieszkoski). Although the trial court's questioning of Petitioner was more
extensive than the court's questioning of prosecution witnesses, the Sixth Circuit
concluded in Tilton that "the degree of balancing done . . . was sufficient to avoid undue
prejudice." Tilton, 714 F.2d at 644 n.2. The Sixth Circuit was "unconvinced that the trial
judge's actions likely indicated the kind of favoritism toward the prosecution which could
have swayed the jury's verdict." Id.
The same is true here. The trial court's questions did not reveal "such a high
degree of favoritism or antagonism as to make fair judgment impossible." Liteky, 510
U.S. at 555. Nor was the trial court's intervention so substantial or excessive as to
24
deprive Petitioner of a fair trial.
Significantly, the trial court's manner of questioning Petitioner may have been
improper and even wrong, but a habeas court’s role is not to correct a state court’s
errors. See Donald, 135 S. Ct. at 1376 (stating that "[f]ederal habeas review . . . exists
as 'a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal' "); see also Williams, 529 U.S. at
411 (stating that "[u]nder § 2254(d)(1)'s 'unreasonable application' clause . . . , a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must also be
unreasonable."). And even a strong case for relief does not mean that the Michigan
Court of Appeals conclusion – that the trial court did not pierce the veil of judicial
impartiality – was unreasonable. Harrington, 562 U.S. at 102.
The state trial court's questions and intervention at Petitioner's trial did not result
in an extreme malfunction of the criminal justice system, and the state appellate court's
decision was not objectively unreasonable. Consequently, Petitioner is not entitled to
relief on the basis of his judicial bias claim.
V. Conclusion
For the reasons stated above, the decision of the Michigan Court of Appeals was
not contrary to Supreme Court precedent, an unreasonable application of Supreme
Court precedent, or an unreasonable determination of the facts. The state court's
decision also was not "so lacking in justification that there was an error . . . beyond any
possibility for fairminded disagreement." Harrington, 562 U.S. at 103. Accordingly, the
25
petition for a writ of habeas corpus is DENIED, and this case is DISMISSED.
VI. Certificate of Appealability
"[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]" Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). 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). "It is consistent with § 2253 that a [certificate of appealability] will
issue in some instances where there is no certainty of ultimate relief. After all, when a
[certificate of appealability] is sought, the whole premise is that the prisoner 'has already
failed in that endeavor.' " Miller-El, 537 U.S. at 337 (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)).
Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. . . .
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, 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.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). "[A] claim can be debatable even though
every jurist of reason might agree, after the [certificate of appealability] has been
granted and the case has received full consideration, that [the] petitioner will not
prevail." Miller-El, 537 U.S. at 338.
26
Reasonable jurists could debate the Court's resolution of Petitioner's judicial-bias
claim. Therefore, a certificate of appealability may issue on claim three.
The Court declines to grant a certificate of appealability on Petitioner's remaining
claims because reasonable jurists would not debate the Court's assessment of
Petitioner's first and fourth claims, which allege non-cognizable claims. As for claim two
(prosecutorial misconduct), reasonable jurists would not find the Court's proceduraldefault ruling incorrect, nor conclude that Petitioner has raised a valid claim of the
violation of a constitutional right. Thus, a certificate of appealability is denied as to
claims one, two, and four.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: July 13, 2015
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