Bass #496581 v. Kowalski

Filing 5

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
JESHKAIF DOMINIQUE BASS,
Petitioner,

Case No. 1:18-cv-215

v.

Honorable Robert J. Jonker

JACK KOWALSKI,
Respondent.

____________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4,
RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily
dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the
duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well as those containing factual allegations
that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After
undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed
because it fails to raise a meritorious federal claim.

Discussion
I.

Factual allegations

Petitioner Jeshkaif Dominique Bass is incarcerated with the Michigan Department
of Corrections at the Earnest C. Brooks Correctional Facility (LRF) in Muskegon County,
Michigan. On May 8, 2015, a Muskegon County Circuit Court jury found Petitioner guilty to one
count of assault with intent to murder, Mich. Comp. Laws § 750.83, one count of being a felon in
possession of a firearm, Mich. Comp. Laws § 750.224f, and two counts of possessing a firearm
during the commission of a felony, Mich. Comp. Laws § 750.227b. On June 10, 2015, the trial
court sentenced Petitioner to imprisonment for 27 to 49 years for the assault conviction, 1 to 20
years for the felon-in-possession conviction, and 2 years for each of the felony-firearm convictions.
On February 26, 2018, Petitioner filed his habeas corpus petition. Under Sixth
Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to
the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition
in the prison mailing system on February 26, 2018. (Pet., ECF No. 1, PageID.13.)
The petition raises two grounds for relief, as follows:
I. THE TRIAL COURT DEPRIVE[D] [PETITIONER] OF HIS
CONSTITUTIONAL RIGHT TO A TRIAL BY AN IMPARTIAL JURY
WHERE IT PERMITTED THE PROSECUTION TO RETROACTIVELY
USE A PEREMPTORY CHALLENGE AGAINST A JUROR WHO
APPEARED SYMPATHETIC TO THE DEFENSE, AFTER THE STATE
HAD BEGUN TO PUT ON EVIDENCE.
ACCORDINGLY
[PETITIONER] MUST [] BE GRANTED A NEW TRIAL.
II. THE
TRIAL
COURT
VIOLATED
[PETITIONER’S]
CONSTITUTIONAL RIGHTS TO CONFRONT THE WITNESS
AGAINST HIM IN A CRIMINAL PROCEEDING WHERE IT
IMPERMISSIBLY
DETERMINED
A
WITNESS
TO
BE
UNAVAILABLE AND ADMITTED PRELIMINARY EXAMINATION
TESTIMONY TO BE READ TO THE JURY BY A PROSECUTOR.
(Pet., ECF No.1-2, PageID.71, 75.)
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A.

Background Facts

The Michigan Court of Appeals summarized the relevant background facts, which
are not disputed by Petitioner:
This case arises from an altercation between defendant and the victim,
Steven Bailey. Defendant produced a handgun during an argument and shot Bailey
non-fatally. Numerous witnesses testified to having witnessed the altercation. Two
witnesses testified to seeing defendant fire the gun.
On the morning of the second day of trial, Juror Two indicated to the court
clerk that he had had a “change of heart.” The trial court spoke to the juror outside
the presence of the rest of the jury. The juror stated that he was a member of the
Jehovah’s Witness faith and that he had religious or moral concerns about sitting in
judgment over defendant. The prosecution asked that the juror be excused.
Defense counsel expressed some concerns about a mistrial if another juror were to
be excused later in the trial, but ultimately stated, “[b]eyond that I would leave it to
the Court’s discretion.” The trial court excused the juror and the trial continued
with 12 jurors (thus, with no alternate jurors remaining). On that same day, the trial
court received information regarding another juror experiencing emotional issues.
According to Aron McConaughy, a deputy with the Muskegon County Sheriff’s
Department, he heard someone crying in the parking lot during the trial’s lunch
break. McConaughy testified that, upon further inspection, he realized that it was
a juror. McConaughy stated that when he asked the juror what was wrong, she
explained that her husband had died eight months before and that she was feeling
“emotionally distraught.” McConaughy testified that the juror indicated that she
did not want to discuss the issue with him further and that she had not approached
him directly to talk. The trial court did not call the juror into the courtroom to
inquire about this incident and proceeded with the trial.
At trial, the prosecution moved to introduce the preliminary examination
testimony of Lameke Strickland, the victim’s sister, who had testified at the
preliminary examination hearing that she had seen defendant fire the gun. The
prosecution argued that Strickland was an unavailable witness whose prior
testimony was admissible under MRE 804(b)(1). In support of its argument that it
had used due diligence in attempting to procure Strickland to testify at trial, the
prosecution offered the testimony of two police officers, John Holtz of the
Muskegon County Sheriff’s Department and Steven Winston of the Muskegon
Heights Police Department. Holtz testified that he had attempted without success
to serve Strickland with a subpoena by attempting to locate her at her last known
address, by searching various databases and visiting the other addresses associated
with her name, and by speaking with several members of her family. Holtz testified
that he had performed all of his searches using the surname “Bailey,” and did not
search using the surname “Strickland,” because that name was not on the subpoena.

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Winston testified that he checked a database for Strickland using both of the
surnames. Winston also contacted Strickland’s mother, who told him that
Strickland was out of town and would not be back for several weeks, although she
would not reveal where Strickland was. The trial court found that the prosecution
had shown due diligence, found Strickland unavailable, and allowed her
preliminary examination testimony to be read for the jury.
(Mich. Ct. App. Op., ECF No. 1-1, PageID.28-29 (footnote omitted).)
B.

Procedural Background

Petitioner filed a direct appeal of his convictions to the Michigan Court of Appeals.
On appeal, he raised the same two issues he now presents in his habeas petition. In an unpublished
opinion issued on October 18, 2016, the court of appeals rejected both appellate grounds and
affirmed Petitioner’s convictions. (Id., PageID.28-32.) Petitioner sought leave to appeal to the
Michigan Supreme Court, again raising the same two issues. The supreme court denied leave to
appeal on May 31, 2017, because it was not persuaded that the questions presented should be
reviewed by the court. (Mich. Op., ECF No. 1-1, PageID.70.)
II.

AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA “prevents federal habeas ‘retrials’”
and ensures that state court convictions are given effect to the extent possible under the law. Bell
v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a
person who is incarcerated pursuant to a state conviction cannot be granted with respect to any
claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented

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in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to
meet.” Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v.
Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135
S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not
include decisions of the Supreme Court announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited to an examination of the
legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court
precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642,
644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if
it decides a case differently than the Supreme Court has done on a set of materially
indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy
this high bar, a habeas petitioner is required to ‘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.’” Woods,
135 S. Ct at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words,
“[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in

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their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705
(2014) (internal quotations omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state
appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith
v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).
III.

Ground I: Denial of Impartial Jury

In his first ground for habeas relief, Petitioner contends that he was denied his right
to a trial by an impartial jury, when the trial court dismissed a juror after the prosecution had begun
to present its evidence. He also claims that he was denied an impartial jury when a second juror,
who was seen crying during a recess, was not questioned by the court and was not excused from
the jury.
The Michigan Court of Appeals addressed Petitioner’s claims, as follows:
Defendant first argues on appeal that the trial court deprived defendant of
his constitutional right to a trial by an impartial jury when it dismissed Juror Two.
We disagree. In the first instance, this issue has been waived. Waiver is “the
intentional relinquishment or abandonment of a known right.” People v Kowalski,
489 Mich 488, 503; 803 NW2d 200 (2011). A defendant’s right to challenge a trial
court’s decision to excuse a juror from deliberations may be waived. People v Tate,
244 Mich App 553, 559; 624 NW2d 524 (2001). When defense counsel leaves a
decision to the trial court’s discretion, the challenge has been waived. People v
Sardy, 313 Mich App 679, 719; ___ NW2d ___ (2015). Here, when discussing
whether to dismiss the juror, defense counsel expressed concern that a mistrial
could result if any other jurors experienced issues, but then agreed to leave the
decision whether to dismiss the juror “to the Court’s discretion.” Accordingly,
defendant has waived the issue now raised and there is no claim of error for this
Court to review. People v Carter, 462 Mich 206, 219; 612 NW2d 144 (2000).
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Further, even if the argument were not waived, defendant has not
demonstrated plain error affecting his substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130, (1999). Trial courts have discretion to excuse
jurors “[s]hould any condition arise during the trial of the cause which in the
opinion of the trial court justifies the excusal of any of the jurors.” MCL 768.18.
Although a trial court may not dismiss jurors arbitrarily or without factual
justification, People v Van Camp, 356 Mich 593, 605; 97 NW2d 726 (1959), it has
“broad discretion” to reduce the number of empaneled jurors to 12. [People v]
Harvey, 167 Mich App [734,] 745[; 423 NW2d 335, 340 (1988)]. Here, the record
supports that the trial court provided a factual justification for its decision to dismiss
the juror, and did not dismiss the juror arbitrarily or based on the trial court’s
personal inclinations. Van Camp, 356 Mich at 605. The trial court acted within its
discretion in dismissing the juror, and defendant has not established that the trial
court’s dismissal of the juror violated his right to an impartial jury. See, e.g., People
v Mahone, 294 Mich App 208, 217; 816 NW2d 436 (2011). And in the end,
defendant was tried by a jury of twelve. Although defendant argues that the
dismissal of Juror Two impacted the trial court’s decision not to inquire further into
the circumstances of the other juror, nothing in the record indicates that the other
juror could not be fair and impartial just because she was observed crying over a
lost spouse while on her lunch break. Mere speculation as to a different outcome
is not sufficient to show prejudice. People v Avant, 235 Mich App 499, 508; 597
NW2d 864 (1999).
(Mich. Ct. App. Op., ECF No. 1-1, PageID.29-30.) In other words, after expressly noting
Petitioner’s default in failing to object, the Michigan Court of Appeals then reviewed Petitioner’s
claim for plain error, finding none.
When a state-law default prevents further state consideration of a federal issue, the
federal courts ordinarily are precluded from considering that issue on habeas corpus review. See
Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). To determine
whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider
whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state
court enforced the rule so as to bar the claim; and (3) the state procedural default is an “independent
and adequate” state ground properly foreclosing federal habeas review of the federal constitutional
claim. See Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004); accord Lancaster, 324 F.3d at 43637; Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Buell v. Mitchell, 274 F.3d 337, 348 (6th
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Cir. 2001). In determining whether a state procedural rule was applied to bar a claim, a reviewing
court looks to the last reasoned state-court decision disposing of the claim. See Ylst, 501 U.S. at
803; Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
Here, in the last reasoned state-court decision, the Michigan Court of Appeals
expressly relied on the procedural rule that a defendant who waives an objection to the trial court’s
proposed decision bars that defendant from raising the issue on appeal. Although the Michigan
Court of Appeals then reviewed Petitioner’s claim for plain error, in this circuit, “plain error review
does not constitute a waiver of state procedural default rules.” Seymour v. Walker, 224 F.3d 542
(6th Cir. 2000) (citations omitted); Scott v. Mitchell, 209 F.3d 854, 866-68 (6th Cir. 2000); see
also Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998) (state court’s alternative holding on the merits
does not require federal court to disregard the procedural bar); McBee v. Abramajtys, 929 F.2d
264, 267 (6th Cir. 1991) (same); Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989) (claim is
defaulted even where the state court may excuse the default for “manifest injustice”); Federico v.
Yukins, No. 93-2424, 1994 WL 601408, at *3-*4 (6th Cir. Nov. 2, 1994) (same, for “miscarriage
of justice”). The state court therefore relied on a state procedural bar in denying Petitioner’s claim.
Moreover, the state procedural rule is adequate and independent, because it was
“firmly established and regularly followed” at the time of the asserted procedural default. Rogers
v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (citing Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
In People v. Kowalski, 803 N.W.2d 200 (Mich. 2011), the Michigan Supreme Court reiterated its
longstanding position that “‘[o]ne who waives his rights under a rule may not then seek appellate
review of a claimed deprivation of those rights, for his waiver has extinguished any error.’” Id. at
211 (quoting People v. Carter, 612 N.W.2d 144, 149 (Mich. 2000)); see also People v. Carines,
597 N.W.2d 130, 137-139 (Mich. 1999) (holding that unpreserved claims of error, whether

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constitutional or nonconstitutional, are subject to review solely for plain error) (citing United
States v. Olano, 507 U.S. 725 (1993) (applying plain-error review to forfeited nonconstitutional
error), and Johnson v. United States, 520 U.S. 461 (1997) (holding that plain-error review applies
to forfeited constitutional review)). Thus, the waiver rule was well established at the time of
Petitioner’s trial. Moreover, a rule designed to arm trial judges with the information needed to
rule reliably “serves a governmental interest of undoubted legitimacy.” Lee v. Kemna, 534 U.S.
362, 385 (2002). Petitioner’s failure to comply with the state’s independent and adequate state
procedural rule caused him to default his claims in state court. See Wainwright v. Sykes, 433 U.S.
72, 86-88 (1977); Taylor v. McKee, 649 F.3d 446, 450 (6th Cir. 2011); Awkal v. Mitchell, 613 F.3d
629, 648 (6th Cir. 2010); West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996).
If a petitioner procedurally defaulted his federal claim in state court, the petitioner
must demonstrate either (1) cause for his failure to comply with the state procedural rule and actual
prejudice flowing from the violation of federal law alleged in his claim, or (2) that a lack of federal
habeas review of the claim will result in a fundamental miscarriage of justice. See House v. Bell,
547 U.S. 518, 536 (2006); Murray v. Carrier, 477 U.S. 478, 495 (1986); Hicks, 377 F.3d at 55152. The miscarriage-of-justice exception only can be met in an “extraordinary” case where a
prisoner asserts a claim of actual innocence based upon new reliable evidence. House, 547 U.S.
at 536. A habeas petitioner asserting a claim of actual innocence must establish that, in light of
new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Factors that establish cause to excuse a procedural default may include interference
by officials, attorney error rising to the level of ineffective assistance of counsel, and a showing
that the factual or legal basis for a claim was not reasonably available. Cvijetinovic v. Eberlin, 617

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F.3d 833, 837 (6th Cir. 2010) (citing Hargrave-Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir.
2004) (citing McClesky v. Zant, 499 U.S. 467, 493-94 (1991) (quotations omitted))). In addition,
a claim may be sufficiently novel to excuse a default if, at the time of the default, the basis for the
legal claim was not yet in existence. See Cvijetinovic, 617 F.3d at 833, 837-38 (citing Reed v.
Ross, 468 U.S. 1, 16 (1984), and Engle v. Isaac, 456 U.S. 107, 130-33 (1982)).
Petitioner utterly fails to allege cause that would excuse his default. Moreover,
even were the Court to assume that Petitioner intended to allege that his trial attorney rendered
ineffective assistance of counsel in waiving the objection, Petitioner would not be entitled to relief
on that ground. To serve as cause to excuse the default, a claim of ineffective assistance of counsel
must itself be properly exhausted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Buell v.
Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.
2001). Petitioner has never raised a claim of ineffective assistance of counsel in the state courts.
The question therefore is unexhausted and may not serve as cause to excuse Petitioner’s procedural
default. Id. Where a petitioner fails to show cause, the court need not consider whether he has
established prejudice. See Engle, 456 U.S. at 134 n.43; Leroy v. Marshall, 757 F.2d 94, 100
(6th Cir. 1985). Moreover, Petitioner fails to allege or show that he is actually innocent under the
standard set forth in Schlup, 513 U.S. at 327. Because Petitioner cannot overcome his procedural
default, review of his first ground for relief is not available in this habeas proceeding.
Nevertheless, even if Petitioner could overcome the procedural bar to his claim, he
would not be entitled to relief. First, to the extent that Petitioner suggests that the trial court
violated state law in excusing the juror, his claim is not cognizable on habeas review. The
Michigan Court of Appeals concluded in its alternate holding that the trial court reasonably
exercised its discretion under Mich. Comp. Laws § 768.18, which permits the dismissal of a juror

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“[s]hould any condition arise during the trial of the cause which in the opinion of the trial court
justifies the excusal of any of the jurors.” Id.

It is not the province of a federal habeas court to

re-examine state-law determinations on state-law questions. Bradshaw v. Richey, 546 U.S. 74, 76
(2005); Estelle v. McGuire, 502 U.S. 62, 68 (1991). The decision of the state courts on a state-law
issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). The Sixth
Circuit repeatedly has recognized “‘that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas
corpus.’” Stumpf v. Robinson, 722 F.3d 739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw, 546 U.S.
at 76). As a consequence, Petitioner is not entitled to habeas relief on the application of state law.
In addition, Petitioner fails to demonstrate that the court of appeals’ determination
was either contrary to or an unreasonable application of clearly established Supreme Court
precedent. The Supreme Court has largely addressed the question of unconstitutional juror
dismissal in the context of death-penalty cases. In Wainwright v. Witt, 469 U.S. 412 (1985), the
Supreme Court held that the proper standard for excluding a juror for cause on the basis of his
views concerning the death penalty is “whether the juror’s views would ‘prevent or substantially
impair the performance of his duties as a juror in accordance with his instructions and his oath.’”
Id. at 424 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). In addition, the Supreme Court
consistently has recognized that a federal habeas court owes double deference to trial-court
determinations of whether the juror should be excused. White v. Wheeler, ___ U.S. ___, 136 S.
Ct. 456, 460 (2015). “The question is not whether the trial judge was wrong or right in his
determination of impartiality, but merely whether his decision was ‘fairly supported by the
record.’” Bowling v. Parker, 344 F.3d 487, 519 (6th Cir. 2003) (quoting Witt, 469 U.S. at 433).
A trial court’s finding “may be upheld even in the absence of clear statements from the juror that

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he or she is impaired.” Uttecht v. Brown, 551 U.S. 1, 7 (2007). And “when there is ambiguity in
the prospective juror’s statements, ‘the trial court . . . [is] entitled to resolve it in favor of the
State.’” Id. (quoting Witt, 469 U.S. at 434).
Petitioner falls short of overcoming the double deference owed to the state court’s
decision to include the juror. Petitioner makes no argument that the court of appeals misstated the
facts surrounding Juror Two’s dismissal. On those facts, the juror approached the court clerk to
express his change of heart about whether he could sit in judgment over Petitioner. Such an
expression by a juror of his inability to perform his duties falls squarely within the standard set
forth in Witt, 469 U.S. at 424. The court’s decision to dismiss the juror therefore clearly was
reasonable under the circumstances.
Petitioner’s challenge to the judge’s handling of the second juror also falls short of
demonstrating constitutional error. The Supreme Court consistently has held that where no
“member of [a defendant’s] jury was removable for cause,” his “jury was impartial for Sixth
Amendment purposes.” Rivera v. Illinois, 556 U.S. 148, 158-59 (2009) (citing Ross v. Oklahoma,
487 U.S. 81, 86-91 (1988) (holding that “because no member of the jury as finally composed was
removable for cause, [the Court] found no violation of [the defendant’s] Sixth Amendment right
to an impartial jury or his Fourteenth Amendment right to due process”)); see also United States
v. Martinez–Salazar, 528 U.S. 304, 307, 317 (2000) (holding that if a defendant was convicted “by
a jury on which no biased juror sat, [he] could not tenably assert any violation of his . . . right to
due process”) (internal quotations omitted).
Petitioner neither argues nor demonstrates any basis for concluding that the second
juror was biased or removable for cause. Instead, as the Michigan Court of Appeals recognized,
the juror was crying during lunch break about the death of her husband some months earlier, a fact

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wholly unrelated to her ability to be impartial in Petitioner’s trial. In addition, the juror never
approached a court official to express a concern about her jury service, and she specifically
indicated that she did not want to talk further to the deputy who approached her. On these facts,
Petitioner fails to demonstrate that the juror was biased or subject to challenge for cause. The
state-court decision therefore was either contrary to or an unreasonable application of established
Supreme Court precedent.
In sum, Petitioner’s first habeas ground is both procedurally defaulted and without
merit.
IV.

Ground II: Preliminary Examination Testimony

In his second ground for habeas relief, Petitioner argues that he was denied his
rights under the Confrontation Clause of the Sixth Amendment when the court allowed
introduction of the preliminary examination testimony of Lameke (Bailey) Strickland, because she
was unavailable at trial. Petitioner also appears to argue that the prosecution did not sufficiently
demonstrate that it had exercised the requisite diligence to warrant admission under Michigan Rule
of Evidence 802.
The Michigan Court of Appeals thoroughly analyzed Petitioner’s claim under both
the Michigan court rule and the Confrontation Clause:
Defendant next argues that the trial court abused its discretion by finding
Strickland to be unavailable and by admitting her testimony from the preliminary
examination hearing. He also argues that the admission of Strickland’s preliminary
examination testimony violated his right to confront the witness. We disagree. We
review for an abuse of discretion a trial court’s decision to admit evidence. People
v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). We review de novo a
claim that the admission of evidence violated the defendant’s right of confrontation.
People v Jackson, 483 Mich 271, 277; 769 NW2d 630 (2009).
Hearsay is “a statement, other than the one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” MRE 801(c). Hearsay is not admissible at trial unless it meets the
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requirements of an exception set forth in the Michigan Rules of Evidence. MRE
802; People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007). In general, former
testimony is not excluded by the hearsay rule where the declarant is unavailable.
MRE 804(b)(1). A witness is unavailable when he “is absent from the hearing and
the proponent of a statement has been unable to procure the declarant’s
attendance . . . by process or other reasonable means, and in a criminal case, due
diligence is shown.” MRE 804(a)(5). Thus, the test for whether a witness is
unavailable is whether the prosecution has shown that it used due diligence in its
attempt to locate the witness for trial. People v Bean, 457 Mich 677, 684; 580
NW2d 390 (1998). “The test is one of reasonableness and depends on the facts and
circumstances of each case, i.e., whether diligent good-faith efforts were made to
procure the testimony, not whether more stringent efforts would have produced it.”
Id.
The trial court did not abuse its discretion when it found that Strickland was
unavailable for trial. Unger, 278 Mich App at 216. Initially, when attempting to
locate Strickland, Holtz checked several databases using “Bailey” only. However,
the record supports that both names were ultimately checked in a database before
trial. The record also supports that two police officers attempted to locate
Strickland by checking various addresses associated with her and by speaking with
her family members. Ultimately, neither police officer was able to locate Strickland
for trial. “Due diligence is the attempt to do everything reasonable, not everything
possible,” to secure the presence of a witness at trial. People v George, 130 Mich
App 174, 178; 342 NW2d 908 (1983). The record supports that the prosecution
used diligent, good-faith efforts to procure Strickland’s presence at trial.
Accordingly, the trial court did not abuse its discretion in finding Strickland
unavailable pursuant to MRE 804(a)(5).
The trial court also did not abuse its discretion when it found Strickland’s
testimony admissible under MRE 804(b)(1). Unger, 278 Mich App at 216. Under
MRE 804(b)(1), former testimony “given as a witness at another hearing of the
same or a different proceeding,” is admissible at trial “if the party against whom
the testimony is now offered . . . had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination.” To be admissible, the
testimony must have been made “at another hearing.” MRE 804(b)(1); People v
Farquharson, 274 Mich App 268, 272; 731 NW2d 797 (2007). Also, the party
against whom the testimony is offered must have had an opportunity and similar
motive to develop the testimony. Id. at 275. “Whether a party had a similar motive
to develop the testimony depends on the similarity of the issues for which the
testimony was presented at each proceeding.” Id.
Here, Strickland’s testimony came from defendant’s preliminary
examination hearing, and therefore her testimony was made “at another hearing” as
required by MRE 804(b)(1). At both the preliminary examination and at trial, the
prosecution sought to show that defendant had shot the victim, and defendant’s
counsel was motivated to prove that defendant was not the shooter. Defense
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counsel had an opportunity to cross-examine Strickland at the preliminary
examination hearing. Defense counsel questioned Strickland about her ability to
view the shooting, her memory of the events, her relationship with the victim, and
her actions after the shooting. Because the same issues were involved at the
preliminary examination and at trial, defendant had an opportunity and similar
motive to develop the testimony. Farquharson, 274 Mich App at 275.
Accordingly, the trial court did not abuse its discretion in admitting Strickland’s
testimony under MRE 804(b)(1). Unger, 278 Mich App at 216.
Defendant has also failed to establish that the use of Strickland’s
preliminary examination testimony violated his rights under the Confrontation
Clause; US Const, Am VI; Const 1963, art 1, § 10. “The admission of testimony
under MRE 804(b)(1) often raises issues concerning a defendant’s right to confront
witnesses against him.” Farquharson, 274 Mich App at 277. “The Confrontation
Clause of the Sixth Amendment bars the admission of ‘testimonial’ statements of a
witness who did not appear at trial, unless the witness was unavailable to testify
and the defendant had a prior opportunity to cross-examine the witness.” People v
Walker (On Remand), 273 Mich App 56, 60-61; 728 NW2d 902 (2006). “Former
testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation
Clause as long as the witness is unavailable for trial and was subject to crossexamination during the prior testimony.” People v Garland, 286 Mich App 1, 7;
777 NW2d 732 (2009). Because Strickland was unavailable under MRE 804(a)(5)
and was subject to cross-examination at defendant’s preliminary examination
hearing, defendant’s right of confrontation was not violated. Id.; Jackson, 483
Mich at 277.
(Mich. Ct. App. Op., ECF No. 1-1, PageID.30-32.)
As previously discussed, to the extent that Petitioner suggests that Strickland’s
preliminary-examination testimony should have been excluded under Mich. R. Evid. 804(b)(1),
his claim is not subject to review in this habeas proceeding. This Court lacks authority to correct
a perceived error of state law. Wilson, 562 U.S. at 5; Bradshaw, 546 U.S. at 76. The decision of
a state court on a state-law issue is binding on a federal court. Wainwright, 464 U.S. at 84. As a
result, Petitioner’s claim under Mich. R. Evid. 804(b)(1) is noncognizable.
Moreover, Petitioner cannot show that he is entitled to relief on his confrontation
claim. The Confrontation Clause of the Sixth Amendment gives the accused the right “to be
confronted with the witnesses against him.” U.S. Const., Am. VI; Pointer v. Texas, 380 U.S. 400,
403-05 (1965) (applying the guarantee to the states through the Fourteenth Amendment). “The
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central concern of the Confrontation Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding
before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990). The Confrontation Clause
therefore prohibits the admission of an out-of-court testimonial statement at a criminal trial unless
the witness is unavailable to testify and the defendant had a prior opportunity for crossexamination. Crawford v. Washington, 541 U.S. 36, 59 (2004).
The Sixth Circuit has noted that there exists “some question whether a preliminary
hearing necessarily offers an adequate prior opportunity for cross-examination for Confrontation
Clause purposes.” Al-Timimi v. Jackson, 379 F. App’x 435, 437-38 (6th Cir. 2010) (citing, inter
alia, Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 2007) (doubting whether “the opportunity to
question a witness at a preliminary examination hearing satisfies the pre-Crawford understanding
of the Confrontation Clause’s guarantee of an opportunity for effective cross-examination”)
(internal quotation marks omitted)). But the Supreme Court has never held that a defendant is
denied his rights under the Confrontation Clause when a witness is unavailable at trial and the
court admits the witness’s preliminary examination testimony. Id., 379 F. App’x at 438. As a
result, in the context of a federal court sitting on habeas review, the Sixth Circuit has concluded
that a state court’s determination that testimony from the preliminary examination was properly
admitted was not an unreasonable application of clearly established Supreme Court precedent. Id.,
379 F. App’x at 438-440; see also Williams v. Bauman, 759 F.3d 630, 636 (6th Cir. 2014) (citing
Al-Timimi with approval and upholding on habeas review the admission of testimony from the
petitioner’s own preliminary examination).
Petitioner does not dispute the court of appeals’ finding that Petitioner both
possessed and exercised his opportunity to cross-examine Ms. Strickland at the preliminary
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examination on the very subjects in issue at trial. He therefore fails to overcome the presumption
of correctness accorded to the state court’s determination about defendant’s opportunity for crossexamination at the preliminary examination. 28 U.S.C. § 2254(e)(1); Sumner, 449 U.S. at 546.
Further, given that no Supreme Court precedent bars the use of the preliminary examination
testimony in these circumstances, see Al-Timimi, 379 F. App’x 437-38, Petitioner fails to
demonstrate entitlement to habeas relief on his second ground.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 because it fails to raise a meritorious federal claim.
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). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a
determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would
be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of
Appeals that an issue merits review, when the Court has already determined that the action is so
lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it
is “somewhat anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate);
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily
dismissed under Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d
44, 46 (2d Cir. 1989) (it was “intrinsically contradictory” to grant a certificate when habeas action

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does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir.
1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard. Under Slack, 529 U.S.
at 484, 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.”
Id. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review,
but must limit its examination to a threshold inquiry into the underlying merit of Petitioner’s
claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s
dismissal of Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner
a certificate of appealability.
A Judgment and Order consistent with this Opinion will be entered.

Dated:

April 13, 2018

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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