Petition for Writ of Certiorari — Christopher McDaniel, Petitioner v. Bonita J. Hoffner, Warden

/

e.

o. 17-1453

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

CHRISTOPHER MCDANIEL,

Sep 12, 2017

DEBORAH S. HUNT, Clerk

Petitioner-Appellant,

ORDER

V.

BONITA J. HOFFNER,

Respondent-Appellee.

nt

Christopher McDaniel, a pro se Michigan prisoner, appeals the district court's judgme

construes

denying his petition for a writ of habeas corpus under 28 U.S.C. §. 2254. The court

See Fed.

McDaniel's notice of appeal as an application for a certificate of appealability (COA).

appeal.

R. App. P. 22(b)(2). McDaniel also moves the court to proceed in forma pauperis on

, and

In 2010, McDaniel was convicted of armed robbery, felon in possession of a firearm

trial court

possessing a firearm during the commission of a felony (felony firearm). The

the armedsentenced McDaniel to an aggregate term of 12 to 25 years of imprisonment on

ar term of

robbery and felon-in-possession convictions, and to a consecutive two-ye

s affirmed

imprisonment on the felony-firearm conviction. The Michigan Court of Appeal

0 (Mich Ct. App.

McDaniel's convictions, People v. McDaniel, No. 297738, 2011 WL 273946

People v. McDaniel,

July 14, 2011), and the Michigan Supreme Court denied leave to appeal,

relief from

805 N.W.2d 212 (Mich. 2011) (mem.). In 2011, McDaniel filed a motion for

an Court of

judgment in the trial court. The trial court denied post-conviction relief, the Michig

an Supreme

Appeals denied McDaniel's delayed application for leave to appeal, and the Michig

(meñ.)H'

Court denied leave to appeal, People v. McDaniel, 843 N.W.2d 524 (Mich. 2014)

t

No. 14-1453

McDaniel then filed a petition for a writ of habeas corpus under § 2254 in the district

court, raising three claims: (1) the prosecution failed to disclose relevant and material evidence;

(2) the trial court violated his right to confrontation; and (3) his trial counsel was ineffective for

failing to object to hearsay and for failing to make a motion to suppress. The district court

denied McDaniel's petition on the merits and declined to issue a COA.

A COA may be issued "only if the applicant has made a substantial showing of the denial

of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must

demonstrate that "jurists of reason could disagree with the district court's resolution of his

constitutional claims or 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). Under the

Antiterrorism and Effective Death Penalty Act, a district court shall not grant a habeas petition

with respect to any claim that was adjudicated on the merits in the state courts unless the

adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme Court; or (2) was

based on an unreasonable determination of the facts in light of the evidence presented to the state

courts. 28 U.S.C. § 2254(d).

McDaniel's convictions arose out of the armed robbery of a DTE Energy service

representative. A mailman had been robbed at gun point earlier in the day in the same

neighborhood. A postal inspector suspected that the same person committed both robberies and

testified that the Postal Service received a tip that identified McDaniel as the perpetrator. The

trial court denied McDaniel's pretrial motion to compel the prosecution to disclose the identity of

the confidential informant.

Each of McDaniel's habeas claims relates to the confidential informant. Specifically,

McDaniel claims that the prosecution withheld the identity of the confidential informant in

violation of Brady v, Maryland, 373 U.S. 83 (1963), that the trial court violated his right-to

confrontation by admitting the informant's hearsay statements, and that his trial counsel was

ineffective for not objecting to the hearsay and for not filing a motion to suppress the hearsay

Im

No. 14-1453

-3statements The Michigan Court of Appeals concluded that the trial court did not abuse Its

discretion an denying MelDaniePs motion to disclose the identity of the informant, that there was

no Brady. vioJation because the informant's tip was not exculpatory, and that there'*as no

confrontation violation because

the informant did not accuse McDaniel of a crime or provide

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evidence against him, at trial, See McDaniel, 2011 WL 2739460, at *34 The district court

concluded that the state. court's resolution of McDaniel's claims was not contrary to or an

unreasonable application of Supreme Court precedent

Given that McDaniel filed a pretrial motion to compel the prosecutioll to disclose the

identity of the confidential informant, which the trial court denied, the prosecution obviously did

not wrongfully suppress evidence Moreover, the informant's statemenc identif'thg McDaniel

was inculpatory, and therefore did not fall within Brady's requirement for the prosecution to

disclose, evidence favorable to the defendant. See Strickler v. Greene, 527 U.S. 263, ,281,-82 ,

(1999) ("There are three components of a true Brady vlolátioii: Tlie'evidenèe at issue must be

favorable to the accused, either because it is exculpatory, or because it is impeaching, that

evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice

must have ensued."). Reasonable jurists therefore would not debate the district court's

conclusion that the state court's decision denying this claim was not contrary to or an

unreasonable, application of Brady. To the extent that McDaniel is claiming a constitutional

violation based on the trial court's order denying his motion to compel disclosure of the

confidential informant's identity, he has not stated a claim for federal habeas relief. See McCray

v. Illinois, 386 U.S. 3,00, 3 12-14 (1967) (declining to find that the federal constitution mandates

the disclosure of confidential informants); Phillips v. Cardwell, 482 F.2d 1348, 1349 (6th Cir.

1973) (stating that it is doubtful that a claim for failure to produce the idehtity of an informant is

cognizable in habeas corpus).

.

The postal inspector's testimony about the tip rrom the confidential informant was

(

background information that explained how the investigation led to McDaniel and therefore was

not hearsay that violated McDaniel's right to confrontation. Cf. United States v, Pugh,.273 F.

-S

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No. 14-1453

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T

App'x 449, 456 (6th Cir. 2008). Because there was no underlying constitutional violation related

to the trial court's admission of the confidential informant's statement, McDaniel's trial counsel

was not ineffective for failing to object to or move to suppress the statement. See Kelly v.

McKee, No. 16-1572, 2017 WL 2831019, at *6 (6th Cir. Jan. 24, 2017) ("Trial counsel is not

required to raise meritless objections."). Reasonable jurists therefore would not debate the

district court's conclusion that the state court's resolution of McDaniel's confrontation and

ineffective-assistance-of-trial counsel claims was not contrary to or an unreasonable application

of Supreme Court precedent.

Accordingly, the court DENIES McDaniel's COA application and DENIES as moot his

motion to proceed in forma pauperis.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk