Ebrahimi v. Barrett

Filing 10

OPINION AND ORDER Denying 1 PETITION for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD EBRAHIMI,
Case Number: 2:17-13738
HONORABLE SEAN F. COX

Petitioner,
v.
JOSEPH BARRETT,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Donald Ebrahimi, through counsel, filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. At the time he filed the petition, Ebrahimi was incarcerated
at the Cooper Street Correctional Facility. He has since been unconditionally discharged
from custody.1 The petition challenges his convictions for two counts of assault with intent
to do great bodily harm less than murder and three counts of assault with a dangerous
weapon. He raises two claims for relief: that he was denied his rights of confrontation and
due process and that insufficient evidence was presented to sustain his convictions.
Respondent argues that a portion of Petitioner’s Confrontation Clause claim was waived and
that the claims are meritless. For the reasons set forth below, the Court denies the petition
and denies a certificate of appealability.

1

Ebrahimi’s discharge does not defeat § 2254's “in custody” requirement because the
requirement is satisfied as long as a petitioner was incarcerated at the time a petition is filed.
Spencer v. Kemna, 523 U.S. 1, 7 (1998).

I.

Background
Petitioner’s convictions arise from an altercation at his home in Shiawassee County

on July 27, 2012. Petitioner resided with his wife, Rebecca, his twelve-year-old daughter
from a previous relationship, the three children he and Rebecca share (who were then two-,
four-, and five-years old), and his grandmother. On the morning of July 27th, Petitioner
became enraged when he realized that Rebecca had allowed him to oversleep for an
appointment. (ECF No. 6-8, PageID.650.) Rebecca testified that Petitioner tore a clock off
the wall and smashed it on the floor. (Id. at 650-51.) He also smashed Rebecca’s phone into
several pieces. (Id. at 651.) While Rebecca was holding their two-year old child, Petitioner
pulled Rebecca’s hair and screamed profanities at her. (Id. at 653-54.) The twelve-year-old
daughter, E.E. took the other children to another part of the house. (Id.) Petitioner then told
Rebecca she had to leave the house without the children and pushed her out the door. (Id.
at 657-59.) Rebecca refused to leave. (Id.) Petitioner threw her to the ground. (Id. at 66263.) He took off Rebecca’s shirt telling her she and the children would have to leave the
house naked. (Id.) Petitioner started choking Rebecca. (Id. at 663.) Petitioner became
distracted by his grandmother, allowing Rebecca to free herself from his grasp. (Id. at 66364.)
Eventually, Petitioner said he would allow Rebecca, the children, and his grandmother
to leave. They were all piled into the minivan when Petitioner pulled the keys from the
ignition. (Id. at 668.) Petitioner chased E.E. when she exited the van. (Id. at 669.) He hit
her after she tripped and fell. (Id. at 547-48.) The rest of the family stayed locked in the van.
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Petitioner retrieved a ball peen hammer and smashed the passenger window, sending glass
flying in all directions. (Id. at 675.) The two- and five-year old girls were cut by the glass.
(Id. at 678.) E.E. ran to a neighbor’s house to call 911. (Id. at 548.) Petitioner allowed
Rebecca to bring the injured girls inside the home to treat their cuts. (Id. at 683-84.)
Petitioner retrieved a chef’s knife and ran screaming through the house. (Id. at 685.) He said
he was going to find E.E. and cut her to pieces. (Id.) A short time later, police arrived. (Id.
at 690-91.)
Following a jury trial in Shiawassee County Circuit Court, Petitioner was convicted
of two counts of assault with intent to do great bodily harm less than murder, Mich. Comp.
Laws § 750.84, three counts of assault with a dangerous weapon, Mich. Comp. Laws §
750.82, and one count of interference with an electronic communication device, Mich. Comp.
Laws § 750.540. He was sentenced to 57 to 120 months for the two assault with intent to do
great bodily harm convictions, 24 to 48 months for the three assault with a dangerous weapon
convictions, and 550 days for the interference conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising these
claims:
I.

Defendant has a constitutional right to confront the witnesses against him
which can only be infringed in very narrow circumstances justified by the facts
of a particular case. The trial court took no evidence and made no findings
that infringement of Defendant’s right of confrontation was necessary to
protect an important state interest or necessary for the daughter to properly
present her testimony. Where the trial court failed to use the least intrusive
means available and failed to make the requisite findings, did preserved
constitutional error occur which the prosecution cannot show to be harmless?
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II.

Constitutional requirements for evidence to support a criminal conviction set
the burden of proof at beyond a reasonable doubt. A failure to have such proof
invalidates any conviction obtained in violation of these principles. Both
felony levels of assaultive crimes have very specific requirements that the
Defendant intend the result stated in the element (a certain level of harm or
battery with a weapon). Where Defendant merely used a hammer to break a
glass in an occupied vehicle and never verbalized a threat to inflict a particular
harm in the presence of a victim, did the trial court err by denying Defendant’s
motion for directed verdict?

III.

Constitutional requirements for evidence to support a criminal conviction set
the burden of proof at beyond a reasonable doubt. A failure to have such proof
invalidates any conviction obtained in violation of these principles. The
interference with a communication charge requires that an actual
communication be obstructed, delay[ed], or prevented and does not prohibit
simple destruction of a communications device.

IV.

The United States Supreme Court has held that a criminal sentence must be
based on facts decided by a jury beyond a reasonable doubt. In this case, the
trial court made multiple scoring decisions and applied a sentence that was at
the top of the guideline range. Where the mandatory nature of the guidelines
has been declared unconstitutional, is Defendant entitled to be resentenced
based upon People v. Lockridge?

The Michigan Court of Appeals affirmed Petitioner’s assault convictions, vacated his
conviction for interference with an electronic communication device, and remanded for
further proceedings consistent with People v. Lockridge, 498 Mich. 358 (2015). People v.
Ebrahimi, 2016 WL 555866 (Mich. Ct. App. Feb. 11, 2016). Petitioner ultimately waived
resentencing in the trial court. See Dkt. # 235, People v. Ebrahimi, No. 324551.
Petitioner filed an application for leave to appeal in the Michigan Supreme Court,
which raised the first two claims he raised in the Michigan Court of Appeals regarding the
Confrontation Clause and sufficiency of the evidence. The Michigan Supreme Court denied
leave to appeal. People v. Ebrahimi, 500 Mich. 889 (Mich. 2016).
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Petitioner then filed the pending habeas corpus petition. He raises these claims:
I.

Violation of the Sixth/Fourteenth Amendment right to confront the witnesses
based on the use of a comfort dog and a screen during the testimony of a minor
witness without the required findings as to an important state interest of a
necessity for presentation of the witness’ testimony.

II.

Violation of the Fourteenth Amendment right to have each element proven
beyond a reasonable doubt based on the lack of proof of a specific intent to
harm in the assaultive crimes.

Respondent has filed an answer in opposition, arguing that part of the Confrontation
Clause Claim is waived and that both claims are meritless.
II.

Standard
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of habeas
corpus only if he can show that the state court’s adjudication of his claims –
(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).
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of
law or if the state court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the law
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of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 408. “[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.” Id. at 411.
“[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). The Supreme Court has emphasized “that
even a strong case for relief does not mean the state court's contrary conclusion was
unreasonable.” Id. at 102. Further, “a habeas court must determine what arguments or
theories supported or ... could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of th[e Supreme] Court.” Id.
A state court’s factual determinations are entitled to a presumption of correctness on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998). Moreover, habeas review is “limited to the record that was before the state court.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III.

Discussion
A.

Confrontation and Due Process Clauses

The trial court allowed Petitioner’s daughter E.E., who was twelve at the time of the
assault and 14 at the time of trial, to testify from behind a one-way screen. The screen, which
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was described by the Michigan Court of Appeals as “small (two feet by two feet), prevented
E.E. from seeing Petitioner but allowed Petitioner, the judge, and the jury to see her.
Petitioner alleges that the use of the screen denied him his right to confrontation and to due
process of law. He also challenges the presence of an emotional support dog for E.E. during
her testimony.
The Sixth Amendment to the United States Constitution 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 Confrontation Clause guarantees a criminal defendant “a
face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487
U.S. 1012, 1016 (1988). But that right may be compromised when “considerations of public
policy and necessities of the case” warrant. Maryland v. Craig, 497 U.S. 836, 848 (1990)
(quotation omitted). In Maryland v. Craig, the Supreme Court considered and affirmed the
use of a one-way closed circuit television for a child witness. Id. The Supreme Court found
it significant that the procedure employed preserved all of the other elements of the
confrontation right: testimony under oath from a witness deemed competent, opportunity for
contemporaneous cross-examination, and observation of the witness. Id. at 851. This
procedure, the Court held, rendered the closed-circuit testimony “functionally equivalent”
to live, in-person testimony. Id.
After discussing the Supreme Court’s decisions in Craig and Coy and the Michigan
Court of Appeals’ decision in People v. Rose, 289 Mich. App. 499 (Mich. Ct. App. July 1,
2010), the Michigan Court of Appeals rejected Petitioner’s argument that the trial court failed
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to identify the specific state interest served by allowing the screen and improperly based its
decision that the victim would suffer emotional distress absent the screen only upon the
prosecution’s representations. The state court reasoned, in relevant part:
Although the trial court never specifically stated what the “important state
interest” was, the transcript makes clear that the trial court and the parties were
well aware when discussing this issue that the important state interest was
protecting the child from the trauma of testifying. The trial court and parties
discussed the Rose decision and its criteria extensively.2 We have no doubt
that the trial court was aware that the important state interest at issue was
protecting the child witness from the trauma of testifying, even if the trial court
did not expressly “find” or state as much on the record.
Defendant also argues that the trial court’s finding that the screen was
necessary to protect the victim from emotional distress was erroneous because
it was based solely on representations made by the prosecutor. We
acknowledge that in Rose the screened-witness’s therapist testified that there
would be emotional distress, whereas here the prosecutor stated facts
supporting that conclusion. However, defendant never questioned the veracity
of the assertion that the twelve-year-old would be in emotional distress, and
never asked the court to require the prosecutor to call a witness to provide
evidence regarding the distress, despite the prosecutor’s offer to call the
twelve-year-old’s mother and take her testimony on the issue. Further,
defendant’s counsel conceded this point in making his arguments, stating
“[o]bviously she’s a young girl who is stressed out.” Indeed, even defendant’s
own “outburst” during the discussion of the screen (where he stated “I don’t
care if I see her or not. I don’t want her going through this”) evidences that
not using the screen would have been traumatic for the twelve-year-old. Given
the above, we cannot say the trial court clearly erred in finding that the
twelve-year-old would suffer emotional distress without the screen.
________________
2
As this Court noted in Rose, the United States Supreme Court “has already
held that the state has a compelling interest in protecting child witnesses from
the trauma of testifying when the trauma would be the result of the defendant’s
presence and would impair the child’s ability to testify.” Rose, 289 Mich. App
at 522.
Ebrahimi, 2016 WL 555866 at *4.

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The trial court concluded that the screen was necessary to protect E.E. from the
trauma of testifying in her father’s presence. Notably, all other elements of the right of
confrontation were protected. The Michigan Court of Appeals’ conclusion that, under these
circumstances, the prosecution provided sufficient justification for the use of a screen was
not contrary to or an unreasonable application of Supreme Court precedent.
Petitioner also argues that the use of the screen violated his rights under the Due
Process Clause because its use was prejudicial and inflammatory. He claims the screen
undermined the presumption of innocence. The Michigan Court of Appeals held that use of
the screen was not inherently prejudicial and that Petitioner failed to establish actual
prejudice:
Due process includes the right to be presumed innocent. Estelle v. Williams,
425 U.S. 501, 503; 96 S Ct 1691; 48 L.Ed.2d 126 (1976). For presumption of
innocence claims, courts “look at the scene presented to jurors and determine
whether what they saw was so inherently prejudicial as to pose an
unacceptable threat to defendant’s right to a fair trial; if the challenged practice
is not found inherently prejudicial and if the defendant fails to show actual
prejudice, the inquiry is over.” Holbrook v. Flynn, 475 U.S. 560, 572; 106 S
Ct 1340; 89 L.Ed.2d 525 (1986). If a procedure is inherently prejudicial, then
the procedure must be necessary to further an essential state interest specific
to that trial. Id. at 568–569.
***
In Rose, after an extensive discussion of the contrasting authority as to whether
the use of a screen for a child witness was inherently prejudicial, this Court
held that it was not. Id. at 517521 (“Accordingly, we cannot conclude that the
use of a screen – no matter what its size or composition may be and no matter
how it was employed at trial – must in every case be presumed to prejudice the
defendant.”). Accordingly, defendant must show actual prejudice. Id. at 521.
Here, as in Rose, defendant has not shown actual prejudice from the use of the
screen. He asserts only that it “could only aggravate his ability to remain
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focused and assists his attorney,” but this conclusory assertion does not
demonstrate actual prejudice. Further, there is no indication that the screen
used in the instant case was any different than the one found proper in Rose.
Given the above, we reject defendant’s argument that the screening violated
his right to due process of law.
Ebrahimi, 2016 WL 555866 at *4-*5.
There is no clearly established federal law establishing that the use of a screen to
protect a child victim during testimony violates due process. Petitioner, nevertheless, may
state a claim if he establishes that the procedure was so egregious that it resulted in a denial
of fundamental fairness. The Supreme Court has defined the “category of infractions that
violate ‘fundamental fairness’ very narrowly.” Dowling v. United States, 493 U.S. 342, 352
(1990). Prior to E.E.’s testimony, the trial court explained the purpose of the screen to the
jury. The trial court instructed that the screen should not be used to imply Petitioner’s guilt
or E.E.’s credibility. The trial court explained that the screen was being used to provide E.E.
some general comfort in testifying in general, and should not impact the jury’s determination
of the truth or falsity of E.E.’s testimony. The state court was reasonable in concluding that
the use of screen in this case was not inherently prejudicial and that Petitioner did not
establish actual prejudice.
Petitioner also argues that the use of an emotional support dog violated his right to
confrontation and due process. Respondent argues that this claim is waived and unexhausted.
Prior to E.E.’s testimony, the prosecutor moved to allow an emotional support dog to
accompany E.E. to the stand and remain there for the duration of her testimony. Defense
counsel stated that the defense did not object to the dog accompanying E.E. See (ECF No.
10

6-7, PageID.446.) On direct appeal, Petitioner also indicated he did not object to the
presence of a canine advocate for his daughter. (Id. at 933.)
Moreover, even if Petitioner did not waive this argument, it is meritless. The use of
a support dog did not infringe upon Petitioner’s right to confront E.E. Nor has Petitioner
demonstrated inherent or actual prejudice. According to the record, the prosecutor indicated
that the dog would be kept inside the witness box and, once there, would not be visible to the
jury. There is no indication from the record before the Court that the dog caused a distraction
or could even been seen in the witness box. See United States v. Gardner, No. 16-CR-20135,
2016 WL 5404207 at *7-8 (E.D. Mich. Sept. 28, 2016) (collecting cases where support dogs
have been allowed to accompany witnesses in criminal trials).
B.

Sufficiency of the Evidence

Petitioner’s next claim challenges the sufficiency of the evidence to support his
convictions for assault with intent to do great bodily harm less than murder and for assault
with a dangerous weapon. Under Michigan law,“[t]he elements of assault with intent to do
great bodily harm less than murder are: ‘(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than
murder.’” People v. Brown, 703 N.W.2d 230, 236 (Mich. Ct. App. 2005) (footnote and
emphasis omitted) (quoting People v. Parcha, 575 N.W.2d 316, 318 (1997)). The elements
of assault with a dangerous weapon under Michigan law are: (1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery. See Gardner v. Kapture, 261 F. Supp. 2d 793, 804
11

(E.D. Mich. 2003)(citing People v. Lawton, 196 Mich. App. 341, 349 (1992)).
The Michigan Court of Appeals denied Petitioner’s sufficiency of the evidence claim
on direct review. First, with respect to the assault with intent to do great bodily harm
conviction, the state court held:
We reject defendant’s argument that there was insufficient evidence to support
a finding that he intended to inflict serious injury of an aggravated nature. “An
actor’s intent may be inferred from all of the facts and circumstances, and
because of the difficulty of proving an actor’s state of mind, minimal
circumstantial evidence is sufficient.” People v. Fetterley, 229 Mich.App 511,
517–518; 583 NW2d 199 (1998) (citations omitted). “Intent may be inferred
from a defendant’s use of physical violence.” People v. Dillard, 303
Mich.App 372, 377; 845 NW2d 518 (2013). While an actual injury is not
required, “the extent of any injury and the presumption that one intends the
natural consequences of one's acts are both proper considerations for the jury.”
Id. at 378.
At trial, defendant’s wife Rebecca testified that after defendant coaxed her into
returning to the house, he said “perfect, you’re such a f–––– idiot,” and then
attacked her. Once isolated, defendant grabbed and twisted Rebecca’s left
wrist, turned her around, grabbed her by her shirt, threw her to the ground,
ripped off her shirt, got on top of her, and began choking her. He only stopped
when a third person entered the room. From defendant’s statements and his use
of significant physical violence, a reasonable jury could conclude that
defendant intended to do serious injury of an aggravated nature to Rebecca.
We also concluded that defendant’s argument relative to the twelve-year-old
victim, which is actually nothing more than an attack on the victim’s
credibility, is without merit. At trial, the twelve-year-old read the statement she
had hand-written for the police on the day of the incident. I n that statement,
she said that defendant attacked her and hit her. At trial, she could no longer
remember defendant hitting her that day but explained the circumstances
surrounding the creation of the handwritten letter. Defendant even conducted
a voir dire examination with regard to the letter, and he questioned her during
cross-examination about it and her memory of the incident. Viewing the
evidence in the light most favorable to the prosecution, a rational jury could
infer that when defendant intentionally hit this 12-year-old girl, he intended to
do serious injury of an aggravated nature.
12

People v. Ebrahimi, No. 324551, 2016 WL 555866, at *1-2 (Mich. Ct. App. Feb. 11, 2016).
The Michigan Court of Appeals also found sufficient evidence to support the assault
with a dangerous weapon conviction:
Defendant committed an assault when he smashed the window. He used the
hammer as a dangerous weapon to commit the assault. Rebecca, who was
inside the van, testified to the circumstances and what occurred from the
perspective of the occupants of the van. And, given the testimony regarding
everything that happened during that day, a reasonable jury could infer that
defendant intended to injure or place the victims in reasonable apprehension
of an immediate battery. Defendant's argument that proof is somehow lacking
because none of the young children testified that they were in “apprehension”
of a battery is wrong. The children's testimony that they actually experienced
apprehension was not necessary, as it could be inferred by the jury.
Defendant argues that he intended to harm the vehicle, as opposed to the
occupants, and was just attempting to get inside the locked vehicle. However,
defendant knew the victims were in the van, and a reasonable jury could
conclude that defendant intended to harm the occupants of the van when he
smashed the van window with the hammer. Viewing the evidence in the light
most favorable to the prosecution, a rational jury could find defendant guilty
beyond a reasonable doubt of the assault with a dangerous weapon charges.
People v. Ebrahimi, No. 324551, 2016 WL 555866, at *2 (Mich. Ct. App. Feb. 11, 2016).
The Michigan Court of Appeals’ decision was not contrary to, or an unreasonable
application of, Supreme Court precedent. On habeas review, “two layers of deference” apply
to a sufficiency of the evidence claim. McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010)
(citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court “must
determine whether, viewing the trial testimony and exhibits in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Brown, 567 F.3d at 205, (citing Jackson v. Virginia, 443 U.S.
13

307, 319 (1979) (emphasis in Jackson)). Second, if the Court were “to conclude that a
rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on
habeas review, [the Court] must still defer to the state appellate court’s sufficiency
determination as long as it is not unreasonable.” Id.
Petitioner does not satisfy this two-level standard of review. He does not show that
the state court’s decision was unreasonable nor does he call into doubt any of the state court’s
factual determinations. In light of the deference owed to the state court’s decision, the Court
concludes that Petitioner fails to clear the“nearly insurmountable hurdle” for petitioners
obtaining habeas relief on sufficiency-of-the-evidence grounds. Davis v. Lafler, 658 F.3d
525, 534 (6th Cir. 2008) (internal citation omitted).
IV.

Certificate of Appealability
In order to appeal the Court’s decision, Ebrahimi must obtain a certificate of

appealability. To obtain a certificate of appealability, Petitioner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, Ebrahimi must show that reasonable jurists could debate whether the petition should
have been resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Courts must either issue a certificate of appealability indicating which issues satisfy the
required showing or provide reasons why such a certificate should not issue. 28 U.S.C. §
2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307
(6th Cir. 1997). Here, jurists of reason would not debate the Court’s conclusions. The Court
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and denies a certificate of appealability.
V.

Conclusion
For the reasons stated above, the Court DENIES the petition for a writ of habeas

corpus. The Court DENIES a certificate of appealability.

s/Sean F. Cox
SEAN F. COX
UNITED STATES DISTRICT JUDGE
Dated: September 16, 2020

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