Reiner #459082 v. Woods
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 22 ; granting 19 petitioner's Motion to Amend/Correct to allow Dismissal of Ground I; Petition for Writ of Habeas Corpus 1 is denied and this case is dismissed; Petitioner is granted a certificate of appealability with respect to Ground III of the habeas petition only; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
JOSEPH THOMAS REINER,
CASE NO. 2:15-CV-125
HON. ROBERT J. JONKER
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Greeley’s Report and Recommendation in this
matter (ECF No. 22) and Plaintiff’s Objection to it (ECF No. 23). Under the Federal Rules of Civil
Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he
district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER & MARCUS, FEDERAL PRACTICE
AND PROCEDURE §
3070.2, at 451 (3d ed. 2014). Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; and Petitioner’s Objections. After its review, the Court finds
that Magistrate Judge Greeley’s Report and Recommendation is factually sound and legally correct
and accordingly adopts its conclusion that Petitioner is not entitled to habeas corpus relief. The
Court will, however, grant Petitioner a certificate of appealability with respect to Ground III of the
The Michigan Court of Appeals summarized the facts underlying Petitioner’s convictions in
this case as follows:
Defendant’s convictions arise from the February 23, 2011, home
invasion of 49199 Fairchild Road in Macomb County, where 69-yearold Joanne Eisenhardt lived. A man, who was later identified as
[Petitioner], stabbed Eisenhardt in the neck with two knives. The
knives were still in Eisenhardt’s neck when police and emergency
medical services arrived at the house. The surgeon who operated on
Eisenhardt to remove the knives was “flabbergasted” that no major
organs were injured. However, Eisenhardt suffered declining health
after the incident and died seven months later.
(4/17/14 Mich. Ct. App. Opinion (MCOA Op.), ECF No. 8-17, PageID.1838). On September 14,
2012, a Macomb County Circuit Court jury, after a six day trial, convicted Petitioner of assault with
intent to commit murder, MICH. COMP. LAWS § 750.83; first-degree home invasion, MICH. COMP.
LAWS § 750.11a(2); and felony murder, MICH. COMP. LAWS § 750.316(1)(b). Petitioner was
sentenced by the trial court on November 14, 2012 to life without parole for the murder conviction,
37 years and 6 months to 60 years for the assault conviction, and 12 years and 6 months to 20 years
for the home invasion conviction.
Petitioner unsuccessfully appealed his convictions through the state courts.
September 11, 2015, Petitioner filed his habeas petition which raised four grounds for relief, as
Petitioner is entitled to a new trial because he was deprived
the effective assistance of counsel where counsel did not
consult with or call an expert witness to dispute the
conclusion that the death was homicide.
Petitioner was denied a fair trial by the erroneous admission
of tainted identifications by Allen Pauli and Thomas
Kosciolek after each was shown a single photograph image of
The Court denied Petitioner his 6th Amendment right of
confrontation and his right to due process by erroneously
allowing into evidence hearsay statements by pawn broker
Hadrian Lewandowski, who was deceased.
Trial Court denied Petitioner due process of law by abusing
its discretion by allowing into evidence testimony of another
(Pet. 6-12, ECF No. 1, PageID.6-12). On December 13, 2017, the Magistrate Judge recommended
denying all four grounds for relief. (ECF No. 22). Petitioner’s Objection was filed on January 2,
2018. (ECF No. 23). The matter is ripe for decision.
After a de novo review, three of the four grounds in the petition can be considered in short
order. Petitioner has in fact requested that Ground I of the Petitioner be dismissed (ECF No. 19),
and Petitioner clearly states he has no objections with the Magistrate Judge’s recommendation that
Ground II also be dismissed (ECF No. 23, PageID.2080). Petitioner’s objections with respect to
Ground IV will also be overruled. Petitioner offers no convincing objection and merely restates and
expands upon arguments already considered by the Magistrate Judge. The Court agrees with the
Magistrate Judge’s conclusion that Ground IV of the petition is without merit for the very reasons
the Report and Recommendation provides. Accordingly Petitioner is not entitled to relief on any of
these three grounds.
Though the Court ultimately concludes Petitioner is also not entitled to relief as to Ground
III, Petitioner’s objection as to this ground warrants further discussion. This ground for relief
centers on a violation of the Confrontation Clause that occurred when the state trial court admitted
out-of-court statements by a witness, Hadrian Lewandowski, who had died before trial.1 The
prosecutor introduced those statements at trial through the testimony of Detective David Ernatt.
No one disputes that the admission of the hearsay statements of Hadrian Lewandowski
violated the Confrontation Clause. The issue is whether the violation had a “substantial and injurious
effect” as described in Brecht v. Abrahamson, 507 U.S. 619 (1993), or was instead harmless error.
Fry v. Pliler, 551 U.S. 112 (2007); Vasquez v. Jones, 496 F.3d 564, 574–75 (6th Cir. 2007). To
make such a determination, Sixth Circuit courts look to the factors delineated in Delaware v. Van
Arsdall, 475 U.S. 673 (1986). The factors include (1) “the importance of the witness’[s] testimony
in the prosecution’s case[;]” (2) “whether the testimony was cumulative[;]” (3) “the presence or
absence of evidence corroborating or contradicting the testimony of the witness on material
points[;]” (4) “the extent of cross-examination otherwise permitted;” and (5) “the overall strength
of the prosecution's case.” Van Arsdall, 475 U.S. at 684.
In his Report and Recommendation, the Magistrate Judge carefully applied the Van Arsdall
factors. (ECF No. 22, PageID.2074-2075). After reviewing the evidence presented at trial,
At the state level, Petitioner asserted the trial court also erred in admitting statements of the
victim that identified the clothing the perpetrator was wearing. But as the Michigan Court of
Appeals discussed, the trial court in fact did not allow the statements from the victim to be admitted
at trial. (MCOA Op. at 4 n.3, ECF No. 8-17, PageID.1841). Petitioner is not pursuing this argument
in his petition.
excluding Mr. Lewandowski’s hearsay statements, the Magistrate Judge found ample support for the
jury’s verdict. Accordingly, the Magistrate Judge determined that the Confrontation Clause violation
was harmless error. In his Objection, Petitioner offers additional information to support his
argument that the admission of the hearsay statements had a substantial and injurious effect on his
trial. (ECF No. 23, PageID.2081-2083). His objections broadly seek to emphasize the importance
of the hearsay testimony to his conviction, while attacking the accuracy and importance of the other
evidence relied upon by the prosecution.
Applying the Van Arsdall factors, the Court concludes the hearsay statements were important
to the prosecution’s case. In addition to being introduced through Detective Ernatt, the statements
were mentioned by the prosecutor during both the opening and closing arguments. Indeed, some of
the first words out of the mouth of the prosecutor at trial related to Mr. Lewandowski’s statements
to Detective Ernatt. But looking at the record entirely apart from the testimony relating to
Mr. Lewandowski’s inadmissible statements, the prosecution’s case against Petitioner remains
exceedingly strong. The prosecution offered the statements of two eye witnesses who saw Petitioner
near the victim’s house at the time the crime occurred. Allen Pauli saw Petitioner walking
northbound along Fairchild. Thomas Kosciolek resided just down the street of the victim. He was
flagged down by Petitioner while driving his car, and gave Petitioner a ride to a bus stop. Mr.
Kosciolek testified that as he drove Petitioner to the stop, Petitioner exhibited several unusual
behaviors. For example he was sweating on a cold day, but did not take off his hat. After he was
arrested in New York, Petitioner admitted he had committed some “big” crimes in Michigan.
Officer Tumulty testified that he asked Petitioner about the Michigan crimes and Petitioner
responded that it was something “he’s obviously going to have to deal with” when he got back.
(ECF No. 8-13, PageID.1429). As the prosecutor noted, Petitioner was later asked what he knew
about those crimes, and Petitioner responded “that’s some big shit” in Michigan. (ECF No. 8-133,
Petitioner argues that almost everything connected to the pawnshop, including the shop’s
business records, should not have been introduced during his trial. Petitioner offers no convincing
argument for why the introduction of transaction documents violated the Confrontation Clause. And,
at bottom, the only added value of Mr. Lewandowski’s statements as relayed by Detective Ernatt at
trial was that Petitioner showed up at the shop on the day of the theft with jewelry. There was plenty
of other physical evidence, however, including the store records and the victim’s granddaughter’s
identification of one of the rings, that did not violate Petitioner’s Sixth Amendment rights and
established the same thing. Accordingly, the Court agrees with the Magistrate Judge that the
introduction of Mr. Lewandowski’s statements did not have a substantial and injurious effect or
influence in determining the jury’s verdict. Breecht, 507 U.S. at 637-38.
None of the cases referenced by Plaintiff compels a different result. In Ghent the trial court
admitted testimony that violated the defendant’s Fifth Amendment rights. In that case, unlike here,
the defendant did not assert actual innocence, but rather contested his mental state at the time of the
crimes. The testimony of a psychiatrist with regard to whether the murder was premeditated and
deliberate was crucial to this determination. In fact, it was the only direct evidence as to the
defendant’s state of mind. Ghent v. Woodford, 279 F.3d 1121, 1130 (9th Cir. 2002), as amended
(Mar. 11, 2002). In Stallings, the case largely hinged on the testimony of an otherwise unreliable
witness whose testimony was bolstered by inadmissible testimony. There was no other physical or
other evidence linking the defendant to the drugs that were in question in that case. Stallings v.
Bobby, 464 F.3d 576, 583 (6th Cir. 2006). In Merolillo causation was central to the case, and the
inadmissible statements from the autopsy pathologist was the only opinion that supported the
prosecution’s causation argument. As such, the Court found the evidence of the defendant’s guilt
“was not weighty, much less overwhelming.” Merolillo v. Yates, 663 F.3d 444, 456 (9th Cir. 2011).
Finally, in Arnold, the prosecutor stressed the defendant’s refusal to answer (via “no comment”
responses) to an officer’s questions in the opening and closing arguments. The jury was instructed
in such a way that it would have treated the defendant’s silence as an admission of the truth of the
officer’s accusations. Arnold v. Runnels, 421 F.3d 859, 869 (9th Cir. 2005).
The common thread running through the decisions which have found reversible error is how
the inadmissible testimony was central to the prosecutor’s theory of the case. In many of these cases
the inadmissable evidence was the only evidence relied upon by the prosecutor. The statements in
this case, on the other hand, play much less of a lead role, and there is overwhelming evidence of
Petitioner’s guilt, even without the inadmissable testimony. Accordingly, Petitioner is not entitled
to habeas relief on this claim.
CERTIFICATE OF APPEALABILITY
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may not
appeal in a habeas corpus case unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability. FED. R. APP. P. 22(b); see also Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate of
appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of Federal
Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
To make this showing, the petitioner must demonstrate that reasonable jurists could “debate
whether (or, for that matter, agree that) 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, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 894 (1983)). When
a district court rejects a habeas petition on the merits, the required “substantial showing” is
“straightforward: The petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
The Court finds Petitioner cannot make this showing with respect to Grounds I, II, or IV of
his petition. With respect to Ground III of the petition, the Court is denying Petitioner relief because
the introduction of inadmissible testimony at Petitioner’s trial did not have a substantial and injurious
effect on the jury’s verdict. Although the Court concludes that Petitioner is not entitled to a writ of
habeas corpus on this ground for relief, reasonable jurists could find the Court’s assessment of
Petitioner’s constitutional claims debatable. Therefore, the Court will grant Petitioner a certificate
of appealability with respect to Ground III of the petition.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 22) is APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that:
Petitioner’s Motion to Amend / Correct to Allow Dismissal of Ground I
(ECF No. 19) is GRANTED.
The Petition for Writ of Habeas Corpus (ECF No. 1) is DENIED and this
case is DISMISSED.
Petitioner is GRANTED a certificate of appealability with respect to Ground
III of the habeas petition only. See Slack v. McDaniel, 529 U.S. 473 (2000).
March 13, 2018
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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