Brandon v. Palmer
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Denying a Certificate of Appealability; and Denying Permission to Proceed in forma pauperis on Appeal, Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ANTONIO P. BRANDON,
Case No. 5:16-cv-11944
Hon. John Corbett O’Meara
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING
PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. §
2254. Petitioner was convicted after a jury trial in the Wayne Circuit Court of first-degree
murder, MICH. COMP. LAWS § 750.316, and two counts of first-degree child abuse. MICH.
COMP. LAWS § 750.136b(2). Petitioner was sentenced to life imprisonment for the murder
conviction and concurrent terms of 10 to 15 years for the child abuse convictions. The
petition raises a single claim: Petitioner’s right to present a defense was violated by
exclusion of a hearsay statement by the deceased victim’s mother that she killed her child.
The petition will be denied because Petitioner’s claim is without merit. The Court will also
deny Petitioner a certificate of appealability and deny him permission to proceed on appeal
in forma pauperis.
The charges against Petitioner and his girlfriend, Nicole Roberts, stemmed from
events occurring between September 21, 2011, and December 5, 2011, and involved their
twin sons, Kayden and Cameron Brandon, who were then about two and one-half months
old. Kayden died on December 5, 2011, from asphyxiation and blunt force trauma to the
chest. The Court recites verbatim the relevant facts relied upon by the Michigan Court of
Appeals in its opinion affirming Petitioner’s convictions, which are presumed correct on
habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009):
Medical examiners testified that the two children in question sustained
multiple injuries, including fractured bones and ribs, severe bruising and
swelling, deep hemorrhages, and internal bleeding. . . .
The prosecution presented substantial evidence that defendant
caused these injuries when he physically abused his children—and that he
intended to harm his children in so doing. The medical examiners noted that
the injuries sustained by the infants are rare in children that cannot walk, and
that, given the amount of force it would take to inflict such injuries, it was
extremely unlikely the injuries occurred by accident. Defendant had ready
opportunity to abuse his children because he was one of their primary
caretakers five days per week, and their sole caretaker at night. Moreover,
defendant admitted that he committed abuse—included, but not limited to,
biting the children, placing his hand over their mouths for an extended period
of time, and punching his infant’s chest in an attempt to make the baby quiet.
[n.1 During an interrogation, defendant speculated that it was this last action
that caused one of his children to die.] And the jury heard testimony from a
witness that said she had seen defendant engage in both physical and verbal
aggression toward the children.
People v. Brandon, No. 317568, 2014 WL 6468190, at *2 (Mich. Ct. App. Nov. 18, 2014).
Following his conviction and sentence, Petitioner filed a claim of appeal in the
Michigan Court of Appeals. His appellate brief raised the following claims:
I. The prosecution’s evidence was insufficient to prove beyond a reasonable
doubt that Brandon committed the crimes of felony murder, with first-degree
child abuse as the predicate felony, or that he committed the two counts of
first-degree child abuse, thus rendering those convictions constitutionally
defective under the Fourteenth Amendment and Const. 1963, Art. 1, §17,
and, further, the trial court’s denial of a motion for directed verdict was an
abuse of discretion.
II. Brandon was denied his Constitutional due process rights to present a
defense, under the Fourteenth Amendment and Const. 1963, Art. 1, §17,
where evidence of another’s guilt was prohibited from use at trial.
The Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished
opinion. Id. Petitioner then filed an application for leave to appeal in the Michigan Supreme
Court, raising the same claims. The Michigan Supreme Court denied the application
because it was not persuaded that the questions presented should be reviewed by the
Court. People v. Brandon, 863 N.W.2d 62 (Mich. 2015) (table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional claims raised
by a state prisoner in a habeas action if the claims were adjudicated on the merits by the
state courts. Relief is barred under this section unless the state court adjudication was
“contrary to” or resulted in an “unreasonable application of” clearly established Supreme
“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
“[T]he ‘unreasonable application’ prong of the statute permits a federal habeas court
to ‘grant the writ if the state court identifies the correct governing legal principle from [the
Supreme] Court but unreasonably applies that principle to the facts’ of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at 413.
“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). “Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103 (internal quotation omitted).
Petitioner claims that he was denied his due process right to present a defense
when the trial court prohibited him from presenting an out-of-court statement by Roberts
that she killed her child. The Michigan Court of Appeals found that Petitioner abandoned
the claim on appeal because it was inadequately briefed. The state appellate court found
in the alternative that the claim was without merit. Petitioner’s claim does not merit habeas
relief because the state court’s alternative decision that the claim lacked merit did not
involve an unreasonable application of clearly established Supreme Court law.
An accused has the right to present his own witnesses and evidence to establish a
defense. This right is a fundamental element of the due process of law. Washington v.
Texas, 388 U.S. 14, 19 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690
(1986)(“whether rooted directly in the Due Process Clause of the Fourteenth Amendment,
or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants ‘a meaningful opportunity to present a
complete defense’”)(internal citations omitted). However, an accused in a criminal case
does not have an unfettered right to offer evidence that is incompetent, privileged, or
otherwise inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S.
37, 42 (1996). The Supreme Court has indicated its “traditional reluctance to impose
constitutional constraints on ordinary evidentiary rulings by state trial courts.” Crane, 476
U.S. at 689. The Supreme Court gives trial court judges “wide latitude” to exclude evidence
that is repetitive, marginally relevant, or that poses a risk of harassment, prejudice, or
confusion of the issues. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Rules that exclude evidence from criminal trials do not violate the right to present a defense
unless they are “‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”
United States v. Scheffer, 523 U.S. 303, 308 (1998)(quoting Rock v. Arkansas, 483 U.S.
44, 56 (1987)).
Furthermore, under the standard of review for habeas cases as enunciated in §
2254(d)(1), it is not enough for a habeas petitioner to show that the state trial court’s
decision to exclude potentially helpful evidence to the defense was erroneous or incorrect.
A habeas petitioner must show that the state trial court's decision to exclude the evidence
was “an objectively unreasonable application of clearly established Supreme Court
precedent.” See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 2003). Additionally, “the
Supreme Court has made it perfectly clear that the right to present a ‘complete’ defense
is not an unlimited right to ride roughshod over reasonable evidentiary restrictions.” Id. at
Here, the Michigan Court of Appeals decision that the trial court properly excluded
the proffered hearsay statement did not involve an unreasonable application of clearly
established Supreme Court law. The issue arose at an October 12, 2012, pretrial hearing.
At the time Roberts was a co-defendant and likewise faced criminal charges arising out of
her child’s death.1 Defense counsel described the circumstances under which Roberts’
statement was made:
Just so the Court is aware the statements the defense seeks to admit
was made by the co-defendant in this case.
And at the time the co-defendant made this statement she was not in
custody, not Mirandized and was at the hospital as she was the individual
that went in the EMS trunk to emergency with the soon to be deceased twin.
When she’s at that hospital she is approached by officer Sergeant
Dolly and is asked in essence what happened.
The statement the defendant seeks to admit says according to
Sergeant Dolly's PCR I asked her about this statement she made.
She stated that she had she wanted to make Kaden’s death sound like
an accident. She indicated that she had put her hand over Kaden’s mouth
and a blanket over his head and stopped him from crying.
Thus she killed her son. We are seeking to admit that statement as a
statement against penial interest.
Dkt. 9-5 at 3-4.
The prosecutor responded by indicating that the statement at issue was only one of
several statements made by Roberts:
There were three statements made by Ms. Roberts. Ms. Michon
[defense counsel] wants to pick and choose which statements of Ms. Roberts
she wants to use.
But I think it’s important to understand how many statements were
Co-defendant Roberts ultimately pled guilty on June 11, 2013, to second-degree
murder and one count of first-degree child abuse. See Dkt. 9-14, at page ID 53.
made [and] what exactly was said because that’s part of the legal analysis.
So she makes the baby  is pronounced dead at approximately 5:00
am on December 5th. On December 5th at approximately 8:53 am is the
statement that Ms. Roberts makes at the hospital that Ms. Michon wants to
introduce to her jury.
Once again we have separate jurors in this case.
[W]hat she says is she tells Sergeant Dolly at the hospital she
voluntarily tells him she physically covered the victim's face with a blanket
for 30 seconds and caused the victim to stop breathing. She states that
verbally and then again in writing at the request of Sergeant Dolly.
But what Ms. Michon does not tell you is minutes later after she gives
that statement she retracts it and she tells Sergeant Dolly to rip it up it wasn’t
So minutes later she retracts that statement. Later that day
approximately at 2:45 pm she made an additional statement at Westland
police department and then she is polygraphed at the Dearborn police
department and on December 6th at approximately 4:30 pm the next day that
 she gives a post-polygraph interview at that time as well.
In both of those subsequent statements the second one on the
December 5th and the one as part of the post-polygraph on December 6th
Ms. Roberts retracts her original exculpatory (sic) assertion.
She says that wasn’t true and she assigns blame solely on the
defendant, Mr. Brandon. So I know that Ms. Michon makes –
The Court: Excuse me are the results of the polygraph involved?
The Prosecutor: No the original statement that she made at the hospital she
retracts that statement she said I remember I said this it wasn’t true it’s all his
Id., at 9-10.
The trial court found that Petitioner could not admit the single inculpatory statement
made by Roberts:
Well, my initial response on this is that if the original statement comes
in all of it comes in because it explains it’s a continuation of her version of
events and with what happened. It should all go before the trier of fact. The
issue is it trustworthy? I look at all of the surrounding circumstances it
appears to this Court it is not trustworthy and the Court is going to deny it.
Id., at 18-19.
This ruling was made in accordance with Michigan Rule of Evidence 804(b)(3),
which prohibits the admission of a statement against penal interest unless there are
“corroborating circumstances clearly [indicating] the trustworthiness of the statement.”
MICH. R. EVID. 804(b)(3). To determine whether the state courts arbitrarily applied their rule
of evidence it is useful to examine a the federal rule of evidence analog. See Wynne v.
Renico, 606 F.3d 867, 871 (6th Cir. 2010). In this case, that analog is Federal Rule of
Evidence 804(b)(3)(B), which likewise requires that an exculpatory out-of-court statement
against the declarant’s penal interest be supported by “[c]orroborating circumstances [that]
clearly indicate the trustworthiness of the statement.” United States v. Price, 134 F.3d 340,
347 (6th Cir. 1998) (quoting United States v. Hilliard, 11 F.3d 618, 619 (6th Cir. 1993)).
Factors to assess in determining whether adequate corroborating circumstances exist
include the presence or absence of a close relationship between the declarant and the
defendant, whether the declarant received Miranda warnings before speaking, and the
existence of evidence suggesting that the declarant was attempting to curry favor with the
authorities. Id. at 348.
The Michigan Court of Appeals found a lack of sufficient corroborating
[I]t is apparent that the trial court properly excluded the statement as
hearsay, because “circumstances clearly indicate[d]” that the statement was
not trustworthy. MRE 804(b)(3). The girlfriend had a motive to lie when she
made the statement, as defendant was her boyfriend and the father of her
children. And she immediately retracted the statement after she made it, and
made three subsequent statements that blamed defendant for the child
abuse and murder. The trial court thus properly excluded her statement as
hearsay under MRE 804(b)(3).
Brandon, No. 317568, 2014 WL 6468190, at *4-5.
That decision did not arbitrarily or unreasonably apply the limitations on the
admission of out-of-court statements prescribed by the Michigan Rules of Evidence. Those
rules are intended to enhance the likelihood that the evidence presented to a jury is
trustworthy. When the declarant is not available to testify, as the non-testifying codefendant here, her testimony could not be subjected to cross-examination, “the greatest
legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149,
158 (1970) (internal quotation marks and citation omitted). The state courts applied their
evidentiary rule in a non-arbitrary manner. Nor was exclusion of the evidence
disproportionate to the purpose the rule was intended to serve. The state court’s decision
therefore did not unreasonably apply clearly established Supreme Court law, and the claim
is without merit.
IV. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated
a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
warrant a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473 (2000). The Court finds that reasonable jurists could not
debate this Court’s resolution of Petitioner’s claims, and will therefore deny a certificate of
appealability. The Court will also deny Petitioner permission to proceed on appeal in forma
pauperis because any appeal of this decision would be frivolous.
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas
The Court further DENIES a certificate of appealability, and DENIES permission to
proceed on appeal in forma pauperis.
Date: February 10, 2017
s/John Corbett O’Meara
United States District Judge
I hereby certify that on February 10, 2017 a copy of this opinion and order was
served upon the parties of record using the ECF system and/or first-class mail.
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