Bergman v. Brewer

Filing 26

ORDER (1) Denying Petitioner's 20 Motion for Reconsideration and (2) Expanding Certificate of Appealability. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LISA BERGMAN,
Petitioner,
Case No. 17-cv-13506
Hon. Matthew F. Leitman

v.
SHAWN BREWER, WARDEN,

Respondent.
__________________________________________________________________/
ORDER (1) DENYING PETITIONER’S MOTION FOR
RECONSIDERATION (ECF No. 20) AND (2) EXPANDING
CERTIFICATE OF APPEALABILITY
In 2014, a jury in the St. Clair County Circuit Court convicted Petitioner Lisa
Bergman of second-degree murder, operating a motor vehicle under the influence of
intoxicating liquor or a controlled substance causing death, and other charges. Prior
to trial, Bergman had sought the appointment of a defense toxicology expert at public
expense. The state trial court denied that request, and the Michigan Court of Appeals
affirmed that denial. At the conclusion of her direct appeal, Bergman filed a petition
for a writ of habeas corpus in this Court. (See Pet., ECF No. 1.) In her petition,
Bergman argued, among other things, that the state trial court violated her right to
due process when it denied her motion for the appointment of a toxicology expert.
In an Opinion and Order dated June 4 , 2021, the Court concluded that Bergman
was not entitled to habeas relief on that claim because the decision of the Michigan
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Court of Appeals on the toxicology expert issue was not contrary to, and did not
involve an unreasonable application of, clearly established federal law. (See Op. and
Order, ECF No. 18.)
Bergman has now filed a motion for reconsideration. (See Mot., ECF No. 20.)
She contends that the Court failed to address her argument that the Michigan Court
of Appeals’ decision on the toxicology expert issue involved an unreasonable
determination of the facts. (See id.) Bergman is correct that the Court did not take
up that argument. But that omission by the Court does not entitle Bergman to
reconsideration because the result of the Court’s ruling would not have changed if
the Court had analyzed the argument. For the reasons explained below, the Court
concludes that the Michigan Court of Appeals’ decision did not involve an
unreasonable determination of the facts. The Court will therefore DENY Bergman’s
motion for reconsideration. However, it will EXPAND its previously-granted
certificate of appealability to include its denial of this motion and its conclusion
herein that the Michigan Court of Appeals’ decision did not involve an unreasonable
determination of the facts.
I
The facts and procedural history underlying the claims in Bergman’s petition
are set forth in detail in the Court’s prior Opinion and Order, and the Court will not
repeat them here. Instead, the Court incorporates its earlier recitation of the facts
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and history into this Order. However, the Court will briefly recount the facts and
procedural history underlying Bergman’s claim related to her request for the
appointment of a toxicology expert at public expense.
Before Bergman’s trial began, it became clear to her attorney that the
prosecution’s case would rely heavily upon (1) the results of toxicology tests that
had been run on her blood following the vehicle accident at issue and (2) testimony
from toxicology expert witnesses.

Bergman’s attorney therefore sought the

appointment of a toxicology expert at public expense to assist him in understanding
the prosecution’s toxicology evidence, in assessing whether proper toxicology
testing protocols were followed, and in developing cross-examination questions for
the prosecution’s experts. (See 10/17/13 Mot. Hr’g Tr., ECF No. 6-4, PageID.337345.) The state trial court declined to appoint a toxicology expert on the ground that
Bergman had not shown a sufficient nexus between her need for an expert and the
prosecution’s case. (See id., PageID.345-346.) That court was “not convinced that
[the expert was] absolutely necessary.” (Id.)
On direct appeal, Bergman argued that the state trial court erred when it
declined to appoint a toxicology expert for her at public expense. The Michigan
Court of Appeals rejected that argument and affirmed Bergman’s convictions. See
People v. Bergman, 879 N.W.2d 278, 289 (Mich. App. 2015).

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When Bergman’s direct appeal concluded, she filed a habeas petition in this
Court. (See Pet., ECF No. 1.) She argued, among other things, that the state trial
court violated her right to due process of law when it declined to appoint a toxicology
expert for her at public expense. After reviewing the petition and Respondent’s
answer to the petition, the Court appointed counsel for Bergman. (See Order, ECF
No. 11.) Counsel then filed supplemental briefs in further support of the petition.
(See Supp. Brs., ECF No. 15, 17.) Together, Bergman and her counsel argued that
the decision of the Michigan Court of Appeals affirming the state trial court’s refusal
to appoint the expert (1) was contrary to, or involved an unreasonable application
of, clearly established federal law, and/or (2) involved an unreasonable
determination of the facts. (See id.)
In the Opinion and Order, this Court denied relief on Bergman’s due process
claim. The Court expressed its own strong belief that state trial court’s refusal to
appoint a toxicology expert for Bergman had, indeed, resulted in a fundamentally
unfair trial. But the Court nonetheless held that Bergman was not entitled to relief
because she had not shown that the Michigan Court of Appeals’ decision was
contrary to, or involved an unreasonable application of, clearly established federal
law. (See Op. and Order, ECF No. 18, PageID.1302-1310.) The Court did not
address Bergman’s argument that the Michigan Court of Appeals’ decision involved
an unreasonable determination of the facts.
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Bergman now moves for reconsideration. (See Mot., ECF No. 20.) She argues
that the Court erred when it failed to address her argument that the factual
determinations by the Michigan Court of Appeals were unreasonable. She further
contends that this Court should now evaluate that argument and should conclude that
the state appellate court’s factual determinations were unreasonable. Finally, she
argues that when those unreasonable factual determinations are corrected, it
becomes clear that she is entitled to habeas relief on her due process claim.
II
Motions for reconsideration in this Court are governed by Local Rule 7.1(h).
Under that rule, the movant must demonstrate that the Court was misled by a
“palpable defect.” E.D. Mich. L.R. 7.1(h)(3). A “palpable defect” is a defect that is
obvious, clear, unmistakable, manifest, or plain. See Witzke v. Hiller, 972 F.Supp.
426, 427 (E.D. Mich. 1997). The movant must also show that the defect, if
corrected, would result in a different disposition of the case. See E.D. Mich. L.R.
7.1(h)(3).
III
Bergman has satisfied the first half of her burden in seeking reconsideration.
She has shown that the Court committed a clear error when it failed to address her
argument that the Michigan Court of Appeals’ decision involved an unreasonable
determination of the facts. But to be entitled to reconsideration, she must also show
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that the result of the Court’s ruling would have been different if the Court had
addressed that argument. She has not done so.
A
Bergman’s attack on the factual determinations of the Michigan Court of
Appeals rests upon 28 U.S.C. § 2254(d)(2). Under that statute, habeas relief may be
“warranted where the state-court adjudication ‘resulted in a decision that was based
on an unreasonable determination of the facts.’” Pouncy v. Palmer, 846 F.3d 144,
158 (6th Cir. 2017) (quoting 28 U.S.C. § 2254(d)(2)). “To show that a state court’s
determination of the facts was ‘unreasonable,’ it is not enough that the ‘federal
habeas court would have reached a different conclusion in the first instance.’” Id.
(quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, a “state court decision
involves an unreasonable determination of the facts in light of the evidence presented
in

the

State

court

proceeding

only

if

it

is

shown

that

the

state

court’s presumptively correct factual findings are rebutted by clear and convincing
evidence and do not have support in the record.” Id. (internal citations omitted).
B
Bergman’s argument that the Michigan Court of Appeals unreasonably
determined the facts focuses on the Court of Appeals’ statement that she “did not
explain why she could not safely proceed to trial without her own [toxicology]
expert.” Bergman, 879 N.W.2d at 289. Bergman argues as follows:
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The Michigan Court of Appeals determined, as a factual
matter, that Bergman “did not explain why she could not
safely proceed to trial without her own expert.” (R. 6-16,
MCOA Op., PgID. 941.) The transcripts show, however,
that [Bergman’s defense attorney] explained that an expert
was necessary “because without expert witness assistance,
Lisa Lynn Bergman will be denied the right to meaningful
and informed cross-examination of the prosecution’s
expert witnesses.” (R. 1, Mot., PgID 79 (emphasis
added).) The Michigan Court of Appeals ignored the
critical portion of [defense counsel’s] explanation,
rendering its determination of the facts unreasonable.
(Bergman Reply Br., ECF No. 17, PageID.1280.)
The problem with this argument is that it does not account for the context in
which the Michigan Court of Appeals said that Bergman “did not explain why she
could not safely proceed to trial without her own expert.” Once that statement is
viewed in context, it becomes apparent that the state appellate court was not making
a factual finding that Bergman literally offered no explanation as to why she needed
an expert to proceed to trial. Instead, the court was making a legal determination
that Bergman did not offer a sufficient explanation as to why she needed an expert.
The Michigan Court of Appeals began its Opinion with a recitation of the
factual background and procedural history of Bergman’s case. In that section of the
Opinion, the state appellate court acknowledged that Bergman did offer an
explanation as to why she needed a toxicology expert, and the court proceeded to
describe Bergman’s explanation:

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Defendant also moved for appointment of an expert
witness at public expense. She argued that the accuracy
and interpretation of the State Police laboratory tests were
critical issues in the case, and claimed that she would be
deprived of a “meaningful defense” unless an independent
expert determined the accuracy and relevance of the
“purported findings” in the laboratory reports. The cost
of an independent examination of each test result was
$1,500. A retest of what defendant referred to as “Sample
B” was $760. Defendant argued that, at a minimum, she
required an expert evaluation of her blood test results on
the night of the fatal collision and the Sample B blood
draw. She asserted that she was indigent and unable to pay
these costs.
The prosecutor argued in response that the prosecutor's
endorsement of an expert witness does not automatically
entitle an indigent defendant to a court-appointed expert.
Defendant also failed to allege any irregularity or
deficiency with respect to the State Police Crime Lab's
methods or protocols that would establish a genuine need
for a defense expert. At the hearing on this motion,
defense counsel stated that he needed an expert to advise
him on reviewing the toxicology reports and the “B
sample.” He explained that two samples are taken: the A
sample, which is analyzed by the forensic lab, and the B
sample, which is reserved for later testing. He asserted
that the prosecutor could not reasonably argue that
toxicology reports were relevant to the prosecution's case,
but not relevant to the defense. The prosecutor responded
that defendant's motion did not include arguments about
relevance and interpretation of lab results. Rather,
defendant's motion was based on reviewing methods and
protocols to ensure that the State Police Crime Lab used
proper methods, and a defendant is not entitled to an expert
merely because the prosecutor relies on an expert, but
instead must establish a “sufficient nexus” between
appointment of an expert and a potential flaw in the
prosecution's expert evidence. Defense counsel replied
that he could not determine whether protocols were
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followed. The trial court stated that the prosecutor was
making every effort to provide the “instrumental data” to
the defense for review and analysis. The trial court agreed
with the prosecutor that defendant had not established a
sufficient nexus justifying further testing or duplicate
testing to see if the same result would be obtained. The
court indicated that it was unwilling to appoint at public
expense an expert to duplicate the prosecution's forensic
testing, but it did not rule out the appointment of a
consultant-type expert to assist in reviewing the existing
data and materials from the prosecution.
Bergman, 879 N.W.2d at 283-84 (emphasis added).
After setting forth this procedural history, the Michigan Court of Appeals
provided its analysis of Bergman’s due process claim. The statement highlighted by
Bergman appears in that analysis. The analysis was as follows:
Defendant relies on Ake v. Oklahoma, 470 U.S. 68, 77
(1985) (quotation marks and citation omitted), in which
the United States Supreme Court held that “[m]eaningful
access to justice” and fundamental fairness require that
indigent defendants be afforded, at state expense, the
“basic tools of an adequate defense or appeal[.]” This
Court recognized Ake in People v. Leonard, 224 Mich.
App. 569, 580–581, 569 N.W.2d 663 (1997), and still
concluded that “a defendant must show a nexus between
the facts of the case and the need for an expert.” Id. at 582,
569 N.W.2d 663.
We conclude that Ake does not require appointment of a
defense expert without a demonstration of a nexus
between the need for an expert and the facts of the case.
Here, defendant failed to establish the requisite nexus. She
asserted that toxicology evidence was a critical part of the
prosecution’s case, but she did not explain why she could
not safely proceed to trial without her own expert. She did
not establish why the objective results of blood analysis
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might be unreliable. She made no offer of proof that an
expert could dispute the prosecution experts’ opinions
regarding the side effects of prescription medications and
their contribution to impaired driving. Defendant failed to
establish that expert testimony would likely benefit her
case. A mere possibility that the expert would have
assisted the defendant’s case is not sufficient.
Id. at 289 (internal citations omitted).
It seems difficult, if not impossible, to reconcile the two quoted passages
above with Bergman’s argument that the Michigan Court of Appeals “determined,
as a factual matter” that Bergman offered no explanation as to why she needed a
toxicology expert. First, as the first passage above shows, the state appellate court
expressly recognized that Bergman did offer at least some explanation regarding
why she required a toxicology expert.

In light of that recognition, it seems

unreasonable to read the appellate court’s later statement that she “did not explain
why she could not safely proceed to trial without her own expert” as meaning that
she literally said nothing about why she needed an expert. Second, after saying that
Bergman “did not explain” her need for an expert, the Michigan Court of Appeals
offered examples of what Bergman did not present. This structure suggests that the
appellate court was attempting to show that the explanation that Bergman did offer
was lacking. Indeed, if the Michigan Court of Appeals had meant that Bergman had
offered literally no explanation, it would have had no need to go further to point out
the specific deficiencies in her showing. Finally, the last statement of the Michigan
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Court of Appeals’ analysis in the second passage quoted above further suggests that
that court recognized that Bergman had offered some explanation as to why she
needed a toxicology expert. The court stressed that a “mere possibility that the
expert would have assisted the defendant’s case is not sufficient.” Id. This indicates
that the court viewed Bergman’s explanation as qualitatively insufficient because it
showed only a “mere possibility” that a toxicology expert would be helpful to the
defense.

If the Michigan Court of Appeals had believed that Bergman said

absolutely nothing about why she needed an expert, it would have had no reason to
invoke the “mere possibility” standard.
The bottom line is this: while the Michigan Court of Appeals certainly could
have expressed itself more clearly, it is most reasonable to read that court’s decision
as concluding that Bergman did not provide a sufficient explanation as to why she
needed a toxicology expert, not as concluding that Bergman provided literally no
explanation as to why she needed the expert. And the court’s conclusion that
Bergman’s explanation was insufficient is not a factual determination that is subject
to review under Section 2254(d)(2). See McMullan v. Booker, 761 F.3d 662, 670–
71 (6th Cir. 2014) (holding that a trial court’s decision whether to give a jury
instruction is not a factual determination and explaining that for purposes of Section
2254(d)(2), “[f]actual issues” include “basic, primary, or historical facts: facts in the
sense of a recital of external events and the credibility of their narrators;” “a
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defendant's competency to stand trial and a juror's impartiality [because] these issues
depend on a trial court's appraisal of witness credibility and demeanor;” and
“whether a petitioner made a Batson prima facie showing of racial
discrimination.”).1
C
For all of the reasons explained in detail by the Court in its earlier Opinion
and Order, the Court remains firmly convinced that the Michigan Court of Appeals
acted unreasonably when it determined that Bergman failed to show that she needed
a toxicology expert. Indeed, the state trial court’s refusal to provide such an expert
to Bergman at public expense left Bergman without any meaningful opportunity to
develop an effective counter to the prosecution’s key toxicology evidence and expert
testimony. But while the Michigan Court of Appeals’ ruling was unreasonable, it
did not involve an unreasonable determination of the facts. Therefore, Bergman has
not satisfied Section 2254(d)(2), and she is not entitled to habeas relief on her due

1

The cases cited by Bergman in support of her contention that the Michigan Court
of Appeals made a factual finding are not to the contrary. (See Bergman Supp. Br.,
ECF No. 23, PageID.1327-1328.) Those cases do not address whether a
determination like the one made by the Michigan Court of Appeals is a factual one.
See Castellanos v. Small, 766 F.3d 1137 (9th Cir. 2014) (explaining that under
Batson v. Kentucky, 476 U.S. 79, 98 n.21 (1986), “intent to discriminate is an issue
of fact,” and then concluding that state court unreasonably determined the facts when
it found a lack of discriminatory intent); Campos v. Stone, 201 F.Supp.3d 1083 (N.D.
Cal. 2016) (holding that state court’s interpretation of a police interrogation
constituted an unreasonable determination of the facts).
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process claim. The Court thus declines to reconsider its decision in the Opinion and
Order to deny Bergman federal habeas relief.
IV
For all of the reasons explained above, Bergman’s motion for reconsideration
(ECF No. 20) is DENIED.2
At the conclusion of the Court’s Opinion and Order, it explained that
“Bergman should be able to present to the Sixth Circuit all of her arguments seeking
relief based upon the denial of her motion for the appointment of a toxicology expert
at public expense.” (Op. and Order, ECF No. 18, PageID.1311.) It therefore granted
her a certificate of appealability “limited to her claim that the state trial court violated
her rights to due process and to a fair trial when it denied her pretrial motion for the
appointment of a defense toxicology expert at public expense.” (Id.) The Court’s
earlier certificate of appealability may be broad enough to encompass the issues
addressed in this Order. But in case it is not, the Court now expands the certificate
of appealability to include its denial of this motion and its ruling that the Michigan
Court of Appeals’ decision did not involve an unreasonable determination of the
facts. Expanding the certificate of appealability in this regard is appropriate because

2

Respondent has offered a number of additional arguments regarding why the Court
should deny reconsideration and deny relief on Bergman’s due process claim. (See
Respondent’s Response Br., ECF No. 24.) The Court does not reach these
arguments.
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reasonable jurists could debate whether the Court should have resolved this issue in
a different manner and because the issue has sufficient merit to deserve
encouragement to proceed further. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: September 24, 2021
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on September 24, 2021, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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