Carol Ege v. Joan Yukins, Warden

BOGGS, Chief Judge,

dissenting.

I agree with the majority’s reversal of the district court’s grant of Ege’s habeas petition based on her ineffective assistance claim. However, because I believe that Ege’s claim was untimely, and that the admission of bite-mark evidence does not constitute an unreasonable application of clearly established Supreme Court precedent, I dissent from the majority’s partial affirmance of the district court’s grant. The same reasons the court uses to deny part of Ege’s petition should defeat the remainder.

I

The majority correctly observes that the crucial Wayne County prosecutor’s office letter from Richard Padzieski, which Ege alleges as a new factual predicate for her claims, does not, in fact, constitute such a predicate with regard to Dr. Warnick’s probability testimony at trial. Maj. Op. at 372-73. As the state and district courts observed in earlier proceedings, the inadmissibility of the statistical evidence should have been obvious at the time of trial, and the letter in question provides no new evidentiary basis to renew a defaulted claim on that basis. The majority is persuaded, however, that the very same letter provides a new factual predicate for the notion that Dr. Warnick was a “sham” scientist.

The majority believes that the district court’s conclusion that the Padzieski letter constitutes a new factual predicate is a factual finding, which we review for clear error. However, the authority cited for this proposition, Bugh, 329 F.3d at 500, simply states that factual findings of a habeas court are reviewed for clear error, not that a “factual predicate” determination under 28 U.S.C. § 2244 (d)(1) is a *381 question of fact. This court does not appear to have decided whether this question is one of law or of fact, but insofar as it requires the application of a statutory standard, it appears to be, at the least, a mixed question of law and fact that we review de novo. However, even were we to assume that, under the appropriate standard of review, the letter constitutes a new factual predicate on the specific question of Dr. Warnick’s competence, it cannot in any case serve to make timely the due process claim on which the majority would affirm the grant of Ege’s habeas petition. If the letter constitutes a new factual predicate for a claim based on the allegation that Dr. Warnick’s identification evidence was particularly unreliable, but not for a claim based on the allegation that the probability evidence offered at trial should not have been admitted, then it should at most allow Ege to proceed on a petition based on the identification evidence, not the probability evidence.

II

The majority’s due process analysis, however, is inextricably bound up with Ege’s time-barred claims concerning the probability evidence Dr. Warnick offered at trial. Indeed, the majority specifically concedes that they “do not question the Michigan courts’ judgment with respect to admission of the bite mark evidence standing alone,” Maj. Op. at 376 and yet the Padzieski letter could only provide a new factual predicate for the proposition that the bite mark identification evidence should not have been admitted. They identify as the “critical portion” of War-nick’s testimony his claim that, in the Detroit metropolitan area of some 3.5 million people, no one but Ege would match the supposed bite marks he had identified on the victim, Maj. Op. at 374, and agree with the state post-conviction court that the problem was not that the state used War-nick to introduce bite-mark identification evidence, but that Warnick was allowed to make this foundationless statement about probabilities. Maj. Op. at 376-77. No matter how well-qualified the expert, Ege was on notice at the time of trial that she should have objected to that probability evidence, as the majority implies in its citations to People v. Carlson, 267 N.W.2d 170 (Minn.1978) and Lawrence H. Tribe, Trial by Mathematics, 84 Harv. L.Rev. 1329 (1971). Maj. Op. at 377.

The majority’s analysis proceeds from these premises, suggesting that although the identification evidence alone might not have been especially prejudicial — countered as it was by the testimony of a defense expert — its combination with the improper probability testimony resulted in a denial of fundamental fairness in Ege’s trial. Whatever the reasonableness of this conclusion, if, as the majority admits, the Padzieski letter does not provide a new factual predicate for the claim that War-nick’s probability evidence should not have been admitted at trial, such a claim is time-barred, and the majority’s analysis is grounded in a claim that was not properly before the district court, and not properly before us. The majority appears to believe that because Ege’s petition is a self-termed “hybrid” claim encompassing both Warnick’s probability testimony and his identification testimony, the determination that the letter provides a new factual predicate for questioning the due process implications of the identification evidence allows the district court, and us, to consider the due process implications of the probability evidence itself as well.

Were it the case that the erroneous identification evidence (a claim based on which the factual predicate of the Padzie-ski letter might properly put before us), taken cumulatively with the probability ev *382 idence, resulted in sufficient prejudice to amount to a due process violation, this might be appropriate. The situation here, however, is precisely the reverse: the majority’s argument is that the newly-predicated weakness of the identification evidence makes stronger the (time-barred) case that the introduction of the probability evidence constituted a due process violation. Viewed in this light, the Padzieski letter is at best cumulative to the evidence, presented at trial by the defense, that Warnick’s identification was inaccurate, and such cumulative evidence “cannot form the newly discovered factual predicate” of 28 U.S.C. § 2244 (d)(1). Souter v. Jones, 395 F.3d 577, 587 (6th Cir.2005). The possibility that, as the majority suggests, before the discovery of the Padzieski letter “Ege did not fully appreciate the strength of her due process claim,” Maj. Op. at 373 (emphasis added), does not appear to be a basis for allowing an otherwise time-barred claim.

In addition, the majority fails to take seriously the limitations imposed on federal habeas review by the relevant AEDPA provision, 28 U.S.C. § 2254 (d), which (in relevant part) permits habeas relief only where a state proceeding resulted in a decision contrary to, or amounting to an unreasonable application of, clearly established Supreme Court precedent. The majority notes that to merit habeas relief “the state court’s decision must have been more than incorrect or erroneous,” but rather must have been “objectively unreasonable.” Wiggins, 539 U.S. at 520, 123 S.Ct. 2527 . However, their analysis of whether the admission of Dr. Warnick’s testimony was substantially prejudicial largely turns this analysis on its head.

The majority observes that the state waited some nine years, until it had obtained the bite-mark evidence, before prosecuting Ege, despite the likelihood that the circumstantial case against her had been available much earlier. Maj. Op. at 377. From this fact, the majority divines that the prosecution must have felt the bite-mark evidence to be particularly important to the case against Ege, and in turn suggests that “[i]t is not unreasonable to conclude, therefore, that this single piece of physical evidence substantially prejudiced the outcome of Ege’s trial.” Ibid. Whether or not it is unreasonable to so conclude, the proper question in a habeas proceeding is whether it was unreasonable for the state court to reach the opposite conclusion. It is simply not enough for this court to have a reasonable belief that there was substantial prejudice here. See Williams v. Taylor, 529 U.S. 362, 365 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

Granted, the majority does assert that the state court’s conclusion that the testimony was not substantially prejudicial was an objectively unreasonable application of “the tenets espoused by the Supreme Court in Chambers,” basing this assertion on its belief that “the bite-mark evidence was a ‘crucial, critical highly significant factor’ ” in the jury’s determination of guilt. Maj. Op. at 378 (quoting Brown, 227 F.3d at 645). Again, however, the majority makes no attempt to show why the state court’s opposite conclusion was unreasonable (rather than merely incorrect, if it even was that). And, indeed, the majority’s concession that at least some of the circumstantial evidence was strong on its face points to the conclusion that the state court’s finding was not unreasonable. They acknowledge the testimony of one witness that Ege had said “she could stomp the baby out of [Thompson], slit her throat, rip her up in little pieces and think nothing of it,” Maj. Op. at 377, 1 to which *383 we would add testimony that Ege sought to hire someone to kill Thompson, that Ege had threatened and assaulted Thompson and vandalized some of her possessions, and that she asked a friend to provide a false alibi.

Furthermore, the majority s grounding of this conclusion on the general tenets expressed in Chambers is at odds with our precedent. In particular, we have observed on a number of occasions that when a habeas claim is predicated on evidentiary issues, relief depends on the existence of precedent establishing the particular type of evidence at issue as violating the defendant’s due process rights. See, e.g., Maldonado v. Wilson, 416 F.3d 470, 477-78 (6th Cir.2005) (improper admission of voice-stress analysis evidence not unreasonable under AEDPA standard where no Supreme Court precedent established admission polygraph or similar evidence as a violation of due process); Frazier v. Huffman, 343 F.3d 780, 790 (6th Cir.2003); Bugh, 329 F.3d at 512-13. Without Supreme Court precedent establishing the admission of bite-mark identification evidence as a due process violation — and there is no suggestion here that any exists — “[generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they ‘offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.2000) (quoting Montana v. Egelhoff 518 U.S. 37, 43 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996)). To the extent that we determine whether a ruling offends such a deeply rooted tradition by looking to historical practice, Medina v. California, 505 U.S. 437, 446 , 112 S.Ct. 2572 , 120 L.Ed.2d 353 (1992), the record provides no indication that, despite the recent disfavor it may have fallen into in some jurisdictions, the admission of bite-mark identification evidence is of such a character.

HI

Because the claim arising from Dr. War-nick’s probability testimony is time-barred under 28 U.S.C. 2244(d)(1), and because the state court proceedings did not result in an unreasonable application of clearly established Supreme Court precedent under the standards of AEDPA, I dissent from the court’s partial affirmance of the district court’s grant of the writ of habeas corpus.

. The majority’s comment that this testimony was "significantly, if not completely, dis *383 credited on the cross-examination,” ibid., is irrelevant: a habeas court has "no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434 , 103 S.Ct. 843 , 74 L.Ed.2d 646 (1983).