Petition for Writ of Certiorari — Najee Sharif Wilkins, Petitioner v. Michigan

Supreme Court briefJan 10, 2019

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No.

ORIG NAL

IN THE

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FILED

SUPREME COURT OF THE UNITED STATES

JAN 10 2019

LIff CLERK

—PETITIONER

(Your Name)

vs.

RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

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(NAME OF CdQRT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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(Address)

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(City, State, Zip Code)

(Phone Number)

RECEIVED

FEB -82019

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED

Petitioner was sentenced to 45-100 years concurrent to

10-40 years for second-degree murder and perjury committed when

he was under the age of 18 which makes him ineligible for

release on parole until the age of 68. Before imposing these

sentences, the sentencing judge did not consider Petitioner's

mitigating characteristics of youth, that is, his impulsivity,

susceptibility to peer oressure, and the transient nature of

these characteristics, see Miller v. Alabama, 567 U.S. 467, 471

(2012), and did not find that he is one of the "rarest of

children

whose crimes reflect irreparable corruption,"

Montgomery v. Louisiana, 136 S.Ct. 718, 726 (2016), as the Eighth

Amendment requires when juvenile offenders are sentenced to life

Without parole, which this Court defined as. a sentence that does

not provide"some meaningful opportunity to obtain release based

on demonstrated maturity and rehabilitation." Miller, at 479.

Does Petitioner's sentence violate the Eighth Amendment?

A prosecution witness testified at the preliminary

examination but refused to testify at trial. His preliminary

examination testimony was admitted at trial over defense

counsel's objection that he did not have an adequate opportunity

to cross-examine the witness at the preliminary examination

because he had not yet received full discovery at that time. Did

the admission of the witness's testimony violate the

Confrontation Clause?

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

TABLE OF CONTENTS

Opinions Below .........................1

Statement of Jurisdiction. ...................2

Constitutional and Statutory Provisions Involved .........3

Statement of the Case ......................4

Reasons for Granting the Writ ..................8

I. PETITIONER'S 45-100-YEAR SENTENCE, WHICH

DENIES PAROLE-ELIGIBILITY UNTIL THE AGE OF

68, AFTER HIS 64.6-YEAR LIFE EXPECTANCY, FOR

SECOND-DEGREE MURDER COMMITTED WHEN HE WAS A

JUVENILE, IMPOSED WITHOUT CONSIDERATION OF

HIS MITIGATING CHARACTERISTICS OF YOUTH OR A

FINDING OF IRREPARABLE CORRUPTION, VIOLATES

THE EIGHTH AMENDMENT.

INTRODUCTION

[ö]

THE EIGHTH AMENDMENT, MILLER, AND MONTGOMERY

THE MANDATORY/DISCRETIONARY SPLIT

THE LWOP/DE FACTO LWOP SPLIT

PETITIONER'S SENTENCE VIOLATES THE EIGHTH

AMENDMENT.

II. THE TRIAL COURT'S ADMISSION OF THE

PRELIMINARY EXAMINATION TESTIMONY OF AN

UNAVAILABLE WITNESS VIOLATED THE

CONFRONTATION CLAUSE BECAUSE PETITIONER DID

NOT HAVE AN ADEQUATE OPPORTUNITY TO CROSSEXAMINE.

INTRODUCTION

THE CONFRONTATION CLAUSE

Conclusion

111

INDEX OF APPENDICES

September 19, 2017 Decision of the Mich. Ct. of Appeals

July 27, 2018 Decision of the Mich. Sup. Ct. denying

discretionary review

Oct. 30, 2018 Decision of the Mich. Sup. Ct. denying

reconsideration

TABLE OF AUTHORITIES CITED

CASES

PAGE NO

Adams v. State, 707 S.E.2d 359 (Ga. 2011) ...........18

Aiken V. Byars, 765 S.E.2d 572 (S.C. 2014) ..........11

Al-Timimi v. Jackson, 379 F. Apt'x 435 (6t.h Cir. 2010)

•.

Angel v. Commonwealth, 704 S.E . 2d 386 (Va. 2011) ...... . 17

Barber v. Page, 390 U.S. 719 (1968)

.25,26,31 1 32

Beach v. State, 348 P.3d 629 (Mont. 2015' ..........12,15

Bell v. Uribe, 729 F.3d 1052 (9th Cir. 2013) .........13

Blueford v. Arkansas, 566 U.S. 599 (2012) ...........18

Brady v. Maryland, 373 U.S. 83 (1963) ..............29

Brown v. Precythe, No. 2:17-cv-04082;

2017 U.S. Dist. LEXIS 180032 (W.D. Mo. Oct. 31, 2017).

Brown v. State, 10 N.E..3d 1 (Ind. 2014) ............16

Budder v. Addison, 651 F.3d 1047 (10th Cir. 2017) .......16

Bunch v. SMith, 685 F.3d 546 (6th Cir. 2012) .........17

California v. Green, 399 U.S. 149 (1970) ........30,31,32

Carp v. Michigan, 136 S.Ct. 1355 (2016) ...........7,23

Casiano v. Comm'r of Corrections, 115 A.3d 1031 (Conn. 2015)16,21

Cloud v. State, 334 P.3d 132 (Wyo. 2014) ..........16,21

Cloud v. Wyo1iing, 294 P.3d 36 (Wyo. 2013) ...........17

Commonwealth v. Batt., 66 A.31-1 286 (Penn. 2013) .........12

Commonwealth v. Foust, L80 A.3C1 416 (Pa. Super. 2018).

.15,18

Conley v. State, 972 N.E.2d 864 (Ind. 2012). .........13

Crawford v. Washington, 541 U.S. 36 (2004) . . . . . . . 26,30,31

Cruz v. United States, NO. 11-cv-787; 2018 WL 1541898

(D. Conn. Mar. 29, 2018) . . . . . . . . . . . . . . . . . . . 22

Davis v. McCollum, 798 F.3d 1317 (10th Cir. 2015) .......13

Diatchenko v. Dist. Atty. for Suffolk Dist.-,

27 N.E.3d 349 (Mass. 2015) ..................17

Evans-Garcia v. United States, 744 F.3d 235 (1st dr. 2014). . 13

Foster v, State, 754 S..E..2d 33 (Ga. 2014) ...........13

Funchess v. Prirue, No. 14-2105; 2016 WL 756530;

2016 U.S. Dist. LEXIS 231131 (E.D. La. Feb. 25, 2016) .....16

Government of the Virgin Islands v. Aguino; 378 F.2d 540

(3d dir. 1967) ..........................7,28

Graham v. Florida, 560 U.S. 48(2010). . . 9,10,13,16,18,19,20,22

Greiman v. Hodges, 79 F.Supp.3d 933 (S.D. Iowa 2015) ......7

Gridine v. State, 175 So.3d 672 (Fla. 2015).

........ 1

Hayden v. Keller, 134 F.Supp.2d 1000 (E.D.N.C. 2015) .......

Holman v. Washington, 364 F.2d 618 (5th Cir. 1966) .......

Johnson v. Ponton, 780 F.3d 219 (4th Cir. 2015) .........12

Kirby v. United States, 174 U.S. 47 (1899) .........31,32

Landrum v, State, 192 So3d 459 (Flab 2016). ....a 4. .12,24

LeBlanc v. Mathena. 841 F.3d 256 (4th dir. 2016) ......... 17

Lynch v. Arizona, 136 S.Ct. 1818 (2016) ............20

Mancusi v. Stubbs, 408 U.S. 204 (1972)

3132

Maryland Restorative Justice Initiative v. Hogan,

No. ELH-16-1021; 2017 U.S. Dist. LEXIS 15160; 2017 WL 467731

(Dist. Md. Feb. 3. 2017) ...................16

Mattox v. United States, 156 U.S. 237 (1895) . . .

.3132

McKinley v. Butler, 809 F.3d 908 (7th dir. 2016) ......11,15

Miller y.. Alabama. 567 U.S. 460 (2012) .....5,8-19,21,22,23,24

Miller v. Maclaren, 737 F. Appx 269 (6th Cir. 2018) .....25

Montgomery v. Louisiana, 136 S.Ct. 718 (2016)

5,8-149 18,23

Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013) .........16

Motes v. United States, 178 U.S. 458 (1900) ........'7,28,31,32

Ohio v. Roberts, 448 U.S. 56 (1980)

.26,30,31,32

Parker v. State, 119 So.3d 987 (Miss

2013) . . . . . . . 12,17,20

People v. Carp, 496 Mich. 440 (2014) . . . . . . . . . . . . 7,23

People v. Gutierrez, 324 P.3d 245 (Cal. 2014) ..........12

People v. Nunez, 125 Cal. Rptr. 616 (Cal. App. 2011) .....18

People v. Reyes, 63 N.E.3d 884 (Ill. 2016) .......... 15

People v. Skinner, 917 N.W.2d 292 (Mich. 2018) ........24

Pointer v. Texas, 380 U.S. 400 (1965) . . . . . . . . . . 27,31,32

Randall v. State, No. 61232; 2013 Nev. Unpub. LEXIS 1863

(Nev. Dec. 12, 2013) . . . . . . . . . . . . . . . . . . . . . 13

Robinson v. United States, 197 L.Ed.2d 645 (2017) .......16

Robinson v. United States, No. 5:02-CR-80-11;

2015 U.S. Dist. LEXIS 85648 (E.D.N.C. July 1, 2015) ......16

Roper v. Simmons, 543 U.S. 551 (2005) . . . . . . . . . . . . 9,18

Rummell v. Estelle, 455 U.S. 263 (1980) ............19

Sen v. State, 301 P.-3d 106 (Wyo. 2013) ............12

Smith v.State, 2014 Ark. 204 (Ark. 2014) ...........13

Solem v. Helm, 463 U.S. 277 (1983) .......... . 19,209 24

Starks v. Easterling, 659 F.App'x. 277 (6th Cir. 2016) . . . . 17

State v. All, 855 N.W.2d 235 (Minn. 2014) ............13

State v. Boston, 303 F.3d 453 (Nev. 2015) ...........16

State v. Castenada, 842 N.W.2d 740 (Neb. 2014) ........17

State v. Dyer, 77 So.3d 928 (La. 2011) ............17

State v. Fletcher, 112 So.3d 1031 (La. 2013) .........12

State v. Long, 8 N.E.3d 890 (Ohio 2014) ............12

State v. Null, 836 N.W.2d 41 (Iowa 2013) . . . . . . . . . . 18,22

State v. Pearson, 836 N.W.2d 88 (Iowa 2013) . . . . . . . 12,16,21

State v. Riley, 110 A.3d 1205 (Conn. 2015) ..........11

vii

State v. Ramos, 387 P.3d 650 (Wash. 2017)

State v. Springer, 856 N.W.2d 460 (S.D. 2014) .........17

State v. yang, 847 N.W.2d 248 (Minn. 2014) ..........17

State v. Zuber, 152 A.3d 197 (N.J. 2017) . . . . . . . . . . 12,15

Steilamn v. Michael, 407 F.3d 313 (Mont. 2017) ........11

United States v. Grant, 887 F.3d 131 (3d Cir. 2018) .....15,22

United States v. Jefferson, 816 F.3d 1016 (8th Cir. 2016)

Veal v. State, 784 S.E.2d 403 (Ga. 2016) . . . . . . . . . . 12,13

Virginia v. LeBlanc, 136 S.Ct. 17269 198 L.Ed.2d 186 (2017). 81 17

West v. State of Louisiana, 194 U.S. 258 (1904) ........27

Williams v. Bauman, 759 F.3d 630 (6th Cir. 2014) .......25

Williams v. Illinois, 567 U.S. 50 (2012) ...........26

Williams v. People, 59 V.I. 1024 (V.1. 2013) .........12

STATUTES • AND RULES

28 U.S.C. § 1257(a) .......................2

28 U.S.C. § 2254(d) .......................25

Mich. Comp. Laws § 750.317 ...................4

Mich. Comp.Laws § 767A.9(1)(b) .................4

Mich. Comp. Laws § 769.25 ....................5

Mich. Comp. Laws § 791.234(5) ...................4,20

Mich. Comp. Laws § 800.33(14) .... . . ..........4,20

Mich. Comp. Laws § 800.34(5) ............ . . ..4,20

Sup. Ct. Rule 10 .....................9,26,32

OTHER

World Almanac Book of Facts (2007) ............. . 21

viii

OPINIONS BELOW

The opinion of the highest state court to review the merits

appears at Appendix A to the petition and is unpublished.

JURISDICTION

The highest state court denied review on July 27, 2018.

Appendix B.

Petitioner filed a timely motion for rehearing, which was

denied on October 30, 2018. Appendix C.

This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides, "In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained

by law, and to be'informed of the nature and cause of the

accusation; to be confronted with the witnesses against him, to

have compulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence."

The Eighth Amendment to the United States Constitution

provides, "Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted."

STATEMENT OF THE CASE

In 2016, Petitioner Najee Wilkins was convicted, after a

jury trial in Grand Rapids, Michigan, of one count of seconddegree murder, Mich. Comp. Laws § 7-50.317, and one count of

perjury, Mich. Comp. Laws § 767A-.9(1)(b), for the 2008 killing of

Khiry Walker, when Petitioner was 17 years old, and for

statements Petitioner made pursuant to an investigative subpoena

regarding Walker's death. Appx. A, p.1.

Petitioner was sentenced to 45-100 years for the murder

conviction, concurrent to 10-40 years for the perjury conviction.

Id. Since Petitioner was 23 years old at the time he started

serving his sentences and since all Michigan defendants sentenced

for crimes committed after December 15, 2000 must serve their

entire minimum term before becoming eligible for parole,

Petitioner will not be eligible for parole until he is 68 years

old. See Mich. Comp. Laws H 791.234(5); 800.33(14); 800.34(5).

"On November 25, 2008, 17-year-old Khiry Walker died from a

gunshot wound to the head. . . from behind, shortly after 7:00

p.m., . . . in the Martin Luther King park in Grand Rapids,

Michigan." Appx. A., p.1. "The investigation was hindered from

its early stages owing in large part to a lack of cooperation

from witnesses" but "the few people that were willing to speak"

revealed that "Walker and his friends had been engaged in an

ongoing feud with another group of local teenagers" that included

Petitioner, Dareyon York, and Avery Ford. Id., pp.1-2.

Petitioner, York, and Ford testified in 2009 pursuant to an

investigative subpoena. Id.., p.2. Petitioner "testified that he

was at York's house on the evening of November 25, 2008, and did

not have any information concerning the shooting." Id. 'Years

later, Detective Kubiak received information that ultimately led

the prosecutor to charge Ford, York, Davis, and [Petitioner] in

connection with their investigative subpoena testimony. In the

wake of the perjury charges, Ford and York recanted their

previous testimony and implicated [Petitioner] in Walker's

murder." Id.

York testified that he and Petitioner waited at a bus stop

on the night of the shooting to confront Walker. Id. "When

Walker disembarked from the bus, he saw [Petitioner], 'threw a

little punch,' and then ran toward the park. According to York,

[Petitioner] pursued Walker with a .22 caliber Ruger in hand and

fired two shots at the ground while yelling for Walker to stop.

Walker continued to run and [Petitioner] shot in his direction

twice more." Id.

Rodney Lewis testified at the preliminary examination and

was cross-examined by defense counsel but refused to testify at

trial. Appx. A, p.6-7. The trial court admitted his preliminary

examination testimony over defense counsel's objection that he

had not had an adequate opportunity to cross-examine Lewis at the

preliminary examination because "When we ran the prelim back in

October, I did not have half or maybe even a

I only had a

quarter of the stuff that I have now. While I had an opportunity

to cross-examine him, it certainly wasn't a cross-examination

that I would be conducting at trial today, which would be much

more thorough based upon all the information I received after the

time of the prelim." Trial Trans., Vol. 6, pp.5-7.

At the sentencing hearing on March 3, 2016, only a month

after this Court issued its decision in Montgomery v. Louisiana,

136 S.Ct. 718 (2016), defense counsel objected to a sentence

longer than 40 years based on Montgomery, Miller v. Alabama, 567

U.S. 460 (2012), and on a state statute, Mich. Comp. Laws §

769.25, enacted to implement those decisions, which provides that

a juvenile offender convicted of the greater offense of firstdegree murder must be sentenced, if not to life without parole,

to a minimum term no longer than 40 years and to a ffaximum term

no longer than 60 years. Sent. Trans., pp.11-12. The trial

court overruled the objection because Mich. Comp. Laws § 769.25,

applies, by its terms, only to defendants convicted of first-degree murder and not the offense Petitioner was convicted of,

second-degree murder. Id., 12. The trial court based its 451100 year sentence on the circumstances of the offense,

Petitioner's criminal history, his lack of remorse, and his

efforts to encourage witnesses to lie. Id., 13-15,

The court

did not consider Petitioner's mitigating characteristics of youth

or his prospects for reform and never found him to be incapable

of reform. Id., 13-15.

On appeal, Petitioner argued, among other things, (1) that

the admission of Lewis's preliminary examination testimony

violated the Confrontation Clause, and (2) that his sentence was

disproportionate under state law and under the Eighth Amendment

as articulated in Montgomery and Miller, because the sentencing

court did not consider Petitioner's mitigating characteristics of

youth and because Petitioner's sentence exceeds the "default

sentence range," People v. Carp, 496 Mich. 440, 458 (2014),

vacated on other grds, Carp v. Michigan, 136 S.Ct. 1355 (2016),

for juveniles convicted of the greater offense of first-degree

murder in Michigan.

On September 19, 2017, the Michigan Court of Appeals

affirmed the convictions and sentences. Appx. A. It rejected

the Confrontation Clause claim by speculating that defense

counsel would have "employed the same strategy at the preliminary

examination as he did at trial" in cross-examining Lewis, and

"Defendant's reliance on the mere fact that defense counsel did

not have all the discovery materials at the time of the

preliminary examination is unpersuasive because the same is true

of nearly every criminal prosecution during the early stages of

the case, and courts have routinely upheld the admissibility of

preliminary examination testimony at subsequent trials." Appx.

A, pp.8-9.

It rejected - the Eighth Amendment claim by finding the

sentencing judge's considerations adequate. Ed., p.23.

On July 27, 2018, and October 30, 2018, the Michigan Supreme

Court denied discretionary review (Appx. B) and reconsideration

(Appx. C), respectively.

Petitioner now seeks the writ of certiorari.

REASONS FOR GRANTING THE PETITION

I. PETITIONER'S 45-100-YEAR SENTENCE, WHICH DENIES

PAROLE-ELIGIBILITY UNTIL THE AGE OF 68, AFTER HIS

64.6-YEAR LIFE EXPECTANCY, FOR SECOND-DEGREE

MURDER COMMITTED WHEN HE WAS A JUVENILE, IMPOSED

WITHOUT CONSIDERATION OF HIS MITIGATING

CHARACTERISTICS OF YOUTH OR A FINDING OF

IRREPARABLE CORRUPTION, VIOLATES THE EIGHTH

AMENDMENT.

A. INTRODUCTION

The Court should grant certiorari because this case involves

two questions that have splitthe circuits and the states'

highest courts, one of which this Court has said, "if presented

on direct review," as in this case, "would be []substantial."

Virginia v. LeBlanc, 136 S.Ct. 1726, 198 L.Ed.2d 186, 191

(2017)(denying the claim on habeas review because of AEDPA's

highly deferential standard of review); Sup. Ct. Rule 10.

The first question is whether the Eighth Amendment, as

articulated in Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), bars only

mandatory sentences of life without parole (LWOP) imposed on

juvenile offenders or if it also requires sentencers to consider

the mitigating characteristics of youth before imposing such a

sentence.

The second question is whether Miller and Montgomery apply

only to sentences explicitly labeled "life without parole" or

also to sentences that are the functional equivalent of LWOP but

happen to have a different label, such as, in this case, long

term-of-years sentences that approach or exceed a juvenile

offender's life expectancy.

The majority of states' highest courts and federal appellate

courts to have considered these questions have held that

sentencers must consider the mitigating characteristics of youth

before imposing LWOP and sentences that are de facto LWOP on

juvenile offenders.

B. THE EIGHTH AMENDMENT, MILLER, AND MONTGOMERY

"The Eighth Amendment's prohibition of cruel and unusual

punishment 'guarantees individuals the right not to be subjected

to excessive sanctions."' Miller, 567 U.S. at 469 (quoting Roper

v. Simmons, 543 U.S. 551, 560 (2005)). "That right

flows

from the basic precept that punishment for crime should be

graduated and proportioned both to the offender and the offense."

Miller, at 469 (quotation marks omitted). "'The concept of

proportionality is central to the Eighth Amendment.'" Miller, at

469 (quoting Graham v. Florida, 560 U.S. 48, 59 (2010)). This

Court "view[s] that concept less through a historical prism than

according to the evolving standards of decency that mark the

progress of a maturing society." Miller, at 469.

"Miller took as its starting premise the principle

established in Roper and Graham that 'children are

constitutionally different from adults for purposes of

sentencing."' Montgomery v Louisiana, 136 S.Ct. 718, 733

(2016)(quoting Miller, at 471). "These differences result from

children's 'diminished culpability and greater prospects for

reform,' and are apparent in three primary ways: [1] children

hre a lack of maturity and an underdeveloped sense of

responsibility, leading to recklessness, impulsivity, and

heedless risk-taking, [2] children are more vulnerable to

negative influences and outside pressures

[a]nd [3] a

child's character is not as well formed as an adult's; his traits

are less fixed and his actions less likely to be evidence of

irretrievable depravity." Montgomery, 733 (quoting Miller, 471

(quotation marks omitted)).

These "distinctive attributes of youth diminish the

penological justifications for imposing the harshest sentences on

juvenile offenders, even when they commit terrible crimes."

Miller, at 472.

In Miller, this Court "h[e]ld that the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders." Miller, 567 U.S.

at 479. "'A State is not required to guarantee eventual

freedom,' but must provide 'some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.'" Id.

(quoting Graham, 560 U.S. at 75). "Although we do not foreclose

a sentencer's ability to make that judgment in homicide cases, we

require it to take into account how children are different, and

how those differences counsel against irrevocably sentencing them

to a lifetime in prison." Miller, at 480.

In Montgomery, this Court held that Miller's holding is

fully retroactive on state and federal collateral review because

it is a substantive rule in that it prohibits the sentencing of

the vast majority of juvenile offenders to LWOP. This Court also

explained in Montgomery that Miller "required that sentencing

courts consider a child's diminished culpability and heightened

capacity for change before condemning him or her to die in

prison" and, "[e]ven if a court considers a child's age befor

sentencing him or her to a lifetime in prison, that sentence

still violates the Eighth Amendment for a child whose crime

reflects 'unfortunate yet transient immaturity'

[that is,]

the vast majority of juvenile offenders." Montgomery, 136

S.Ct.

at 726, 734 (quotation marks omitted; emphasis added).

C. THE MANDATORY/DISCRETIONARY SPLIT

The majority of states' highest courts and federal appellate

courts to have considered the question have held that "Mill

does more than ban mandatory life sentencing schemes for

juveniles; it establishes an affirmative requirement that court

fully explore the impact of the defendant's juvenility on the

sentence rendered." Aiken v. Byars, 765 S.E.2d 572, 577 (S.C.

2014). In other words, "Miller does not stand solely for the

proposition that the eighth amendment demands that a sentencer

have discretion to impose a lesser punishment than life witho

parole on a juvenile homicide offender. Rather, Miller logic

ally

indicates that, if a sentencing scheme permits the imposition

that punishment on a juvenile homicide offender, the trial

court

must consider the offender's 'chronological age and its hallm

ark

features' as mitigating." State v. Riley, 110 A.3d 1205, 1216

(Conn. 2015)(emphasis in original). See also McKinl

ey v. Butler,

809 F.3d 908, 911 (7th Cir. 2016); Steilman v. Michael, 407

P.3d

313, 315 (Mont. 2017)("We hold that Miller and Montg

omery apply

to discretionary sentences"); State v. Zuber, 152 A.3d

197, 201

(N.J. 2017); Landrum v. State, 192 So.3d 459 (Fla. 2016)

; Veal v.

State, 784 S.E.2d 403 (Ga. 2016); Beach v. State, 348

633, 638 (Mont. 2015); People v. Gutierrez, 324 P.3d

P.3d 629,

245, 249

(Cal. 2014); State v. Long, 8 N.E.3d 890, 898-899 (Ohio

2014 )("Miller

mandate[s] that a trial court consider as

mitigating the offender's youth and its attendant chara

cteristics

before imposing a sentence of life without parole.");

Pearson, 836 N.W.2d 88, 97 (Iowa 2013)(remanding for

State v.

resentencing

because the judge failed to consider all of the mitig

ating

characteristics of youth required by Miller in impos

ing

discretionary terms totalling 35 years, improperly consi

dered

other youthful characteristics as aggravating, and "emph

asized

the nature of the crimes to the exclusion of the mitig

ating

factors of youth, which are required to be be considered

under

Miller.").

Similarly, some, in reversing mandatory life sentences

under

Miller, have held that the sentencing courts, on resen

tencing,

must consider the mitigating characteristics of youth

. Johnson

v. Ponton, 780 F.3d 219, n.2 (4th Cir. 2015); State

v. Fletcher,

112 So.3d 1031, 1036-37 (La. 2013); Parker v. State,

119 So.3d

987, 998 (Miss. 2013); Commonwealth v. Batts, 66 A.3d

286, 296

(Penn. 2013); Sen v. State, 301 P.3d 106, 124 (Wyo.

Williams v. People, 59 V.I. 1024, 1040-42 (v.1.

2013);

2013).

A minority, however, have held that where 'the sente

nce

imposed was not mandatory, there is no violation of

Miller."

Bell v. Uribe, 729 F.3d 1052, 1064 (9th Cir. 2013);

United States

v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016); Davis v.

McCollum, 798 F.3d 1317, 1321-1322 (10th Cir. 2015);

Evans-

Garcia v. United States, 744 F.3d 235, 240-241 (1st Cir. 2014)

;

State v. Au, 855 N.W.2d 235, 258 (Minn. 2014)(uBecause the

imposition of consecutive sentences was not mandatory,

but was

discretionary, Mandis reliance on Miller is misplaced.

');

Smith

v. State, 2014 Ark. 204, at *4-5 (Ark. 2014); Randell v. State

No. 61232; 2013 Nev. Unpub. LEXIS 1863, at n.1 (Nev.

Dec. 12,

2013); Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012).

The Georgia Supreme Court changed its position on this

question after Montgomery. Compare Foster v. State,

754 S.E.2d

33, 37 (Ga. 2014) to Veal v. State, 784 S.E.2d 403 (Ga.

2016).

Miller does not merely ban mandatory LWOP but explicitly

requires sentencing courts to consider the mitigating

characteristics of youth before imposing

LWOP (and, as shown

below, de facto LWOP). In Miller, this Court explained

was relying on two strands of precedent, the first of

that it

which

'prohibited mandatory imposition of capital punishment

, requiring

that sentencing authorities consider the characteristics

of a

defendant and the details of his offense before sente

ncing him to

death." Miller, 567 U.S. at 470 (emphasis added).

In the

second, this Court treated juveniles differently from

because "'[an offender's age,' we made clear

adults

in Graham, 'is

relevant to the Eighth Amendment,' and so 'criminal

procedure law

that fail to take defendants' youthfulness into accou

nt at all

would be flawed."' Miller, at 473-474 (quoting Graha

m, 560 U.S.

at 76).

Based on both strands of precedent, this Court said, "we

require [sentencers] to take into account how children are

different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison" and "[o]ur decision

mandates only that a sentencer follow a certain process

considering an offender's youth and its attendant characteristics

before imposing a particular penalty." Miller, 567 U.S. at

480, 483 (emphasis added).

Later, in Montgomery, this Court characterized Miller as

follows:

Miller required that sentencing courts consider a

child's diminished culpability and heightened capacity

for change before condemning him or her to die in

prison.

Miller, then, did more than require a sentencer to

consider a juvenile offender's youth before imposing

life without parole; it established that the

penological justifications for life without parole

collapse in light .of the distinctive attributes of

youth. Even if a court considers a child's age before

sentencing him or her to a lifetime in prison, that

sentence still violates the Eighth Amendment for a

child whose crime reflects unfortunate yet transient

immaturity.

The procedure Miller prescribes is . . . [a]

hearing where youth and its attendant characteristic

are considered as sentencing factors [which] is

necessary to separate those juveniles who may be

sentenced to life without parole from those who may

not.

Montgomery, 1-3 6S.Ct. at 726, 734, 735 (quotation marks and

citations omitted; emphasis added).

In this case, the sentencing court based its sentence mainly

on the circumstances of the offense, Petitioner's criminal

history, lack of remorse, and efforts to intimidate witnesses,

but did not consider his mitigating characteristics of youth or

prospects for reform and never found him to be incapable of

reform. Id., 13-15. Therefore, Petitioner's sentence, which is

the functional equivalent of LWOP (as shown below), was imposed

in violation of the Eighth Amendment.

THE LWOP/DE FACTO LWOP SPLIT

"[T]he majority of jurisdictions that have considered the

question [have] h[e]ld that Miller does apply to juvenile

homicide offenders facing de facto life-without-parole sentences.

[H]olding otherwise would [be] in direct contradiction to

Miller." State v. Ramos, 387 P.3d 650, 659-660 (Wash.

2017) (holding that Miller applies to a sentence of 85 years).

These cases can be divided into two categories.

The first category is long term-of-years sentences that

approach or exceed a juvenile's life expectancy, that is,

sentences of 35 years and more. See, e.g., Commonwealth v.

Foust, 180 A.3d 416, 431 (Pa. Super. 2018); United States v.

Grant, 887 F.3d 131 (3d Cir. 2018)(65 years with parole

eligibility at age 72); State v. Zuber, 152 A.3d 197 (N.J.

2017)(110 years with parole eligibility at age 55); McKinley v.

Butler, 809 F.3d 908 (7th Cir. 2016)(100 years); People v. Reyes,

63 N.E.3d 884 (Iii. 2016)(97 years); Beach v. State, 348 P.3d

629, 630 (Mont.. 2015)(100 years with parole eligibility at age

72); Casiano V. Comm'r of Corrections, 115 A.3d 1031 (Conn.

2015)(50 years); Gridine v. State, 175 So.3d 672 (Fla. 2015)(70

years); State v. Boston, 303 P.3d 453 (Nev. 2015)(100 years);

Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014)(150 years); Cloud v.

State, 334 P.3d 132, 142 (Wyo. 2014)(35 years after reductions

for good time); State v. Pearson, 836 N.W.2d 88, 97 (Iowa

2013)(35 years); Moore v. Biter, 725 F.3d 1184, 1191-92 (9th Cir.

2013)(254 years).

This Court once applied Miller to a long term-of-year

sentence. Robinson v. United States, 197 L.Ed.2d 645

(2017)(granting certiorari, vacating the lower court's denial of

a juvenile offender's claim that his 193-year sentence violated

Miller, and remanding for reconsideration in light of

Montgomery). See Robinson v. United States, No. 5:02--CR-80-11;

2015 U.S. Dist. LEXIS 85648 (E.D.N.C. July 1, 2015).

The second category, is life sentences that, although

nominally "parolable," have such restrictive or arbitrary parole

processes as to deny "'some meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.'"

Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).. See,

e.g., Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017); Brown v.

Precythe, No. 2:17-c.v-04082; 2017 U.S. Dist. LEXIS 180032, at

*28-32 (w.D. Mo. Oct. 31, 2017); Maryland Restorative Justice

Initiative v. Hogan, No. ELH-16-1021; 2017 U.S. Dist. LEXIS

15160; 2017 WL 467731 (Dist, • Md. Fe. 3, 2017); Funchess v.

Prince, No. 14-2105; 2016 WL 756530; 2016 U.S. Dist. LEXIS

231131, at *15-16 (E.D. La. Feb. 25, 2016); Hayden v.

F.Supp.2d 1000, 1009 (E.D.N.C. 2015); Diatchenko v.

Keller, 134

Dist. Atty.

for Suffolk Dist., 27 N.E.3d 349 (Mass. 2015); Greim

an v. Hodges,

79 F.Supp.3d 933, 943 (S.D. Iowa 2015); State v. Caste

neda, 842

N.W.2d 7409 757-758 (Neb. 2014); Cloud v. Wyoming, 294 P.3d 369

44-48 (Wyo. 2013); Parker v. State, 119 So.3d 987, 997

(Miss.

; LeBlanc. v.

2013); State v. Dyer, 77 So.3d 928, 930-31 (La. 2011)

Mathena, 841 F.3d 256, 262-263 (4th Cit. 2016) rev'd

on other

grounds sub nom Virginia v. LeBlanc, 136 S.Ct. 1726

(2017)(holding that the state court's rejection of the

defendant's claim was not 'objectively unreasonable"

under

AEDPA's highly-deferential standard of review for habea

s corpus

cases but stating, "The Court expresses no view on the

the underlying Eighth Amendment claim. Nor does the

merits of

Court

suggest of imply that the underlying issue, if prese

nted on

direct review [and thus under de novo review], would

insubstantial.')(citations and quotation marks omitt

ed). Compare

Starks v. Easterling, 659 F.App'x. 277, 281 (6th Cir.

2016)(White, J., concurring)("I agree that Starks has

not met

AEDPA's demanding standard for relief. I write separ

ately

because I conclude that, properly applied, the Supre

me Courts

cases establish that Stark's [parolable] life sentence

violates

the Eighth Amendment" under Miller and Montgomery).

A minority of jurisdictions have held that Miller appli

only to sentences labeled LWOP. State v. Springer,

856 N.W.2d

460, 470 (S.D. 2014); State v. Vang, 847 N.W.2d 248

(Minn. 2014);

Angel v. Commonwealth, 704 S.E.2d 386, 401-402 (Va.

2011); Bunch

v. Smith, 685 F.3d 546, 550-551 (6th Cir. 2012); Adams v. State,

707 S.E.2d 359, 365 (Ga. 2011)."

The latter courts "seek to avoid the basic thrust of

Graham and Miller by refusing to recognize the[ir] underlying

rationale," State v. Null, 836 N.W.2d 41, 72-73 (Iowa 2013),

including "the principle established in Roper and Graham that

'children are constitutionally different from adults for purposes

of sentencing,'" Montgomery, 136 S.Ct. at 733 (quoting Miller,

567 U.S. at 471), and the "foundational principle[] that the

imposition of the State's most severe penalties on juvenile

offenders cannot proceed as though they were not children."

Miller, at 474.

As one court observed, "Finding a determinate sentence

exceeding a juvenile's life expectancy constitutional because it

is not labeled an LWOP sentence is Orwellian. Simply put, a

distinction based on changing a label

is arbitrary and

baseless." People v. Nunez, 125 Cal Rptr. 616, 624 (Cal. App.

2011). See also Commonwealth v. Foust, 180 A.3d 416, 432 (Pa.

Super. 2018)(holding that Miller applies to term-of-year

sentences because "[a]s the United States Supreme Court has often

noted in criminal cases, 'form is not to be exalted over

substance.'")(quoting Blueford v. Arkansas, 566 U.S. 599', 611

(2012)).

This Court's focus under the Eighth Amendment has always

been on a sentence's effects, not its label. In Miller, the

Court explicitly equated LWOP sentences to the death penalty:

"[B]ecause we viewed this ultimate penalty for juveniles as akin

to the death penalty, we treated it similarly to that most seveie \1k

punishment." Miller, 567 U.S. at 474-75. See also Graham, 560

U.S. at 70 ("In some cases

there will be negligible

difference between life without parole and other

sentences")(quotation marks omitted).

In Miller, this Court defined LWOP, not as a sentence with

that label, but as one that does not provide "some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.'" Miller, at 479 (quoting Graham, at 75). See

also Graham, at 70 (citing Solem v. Helm, 463 U.S. 277, 300-301

(1983) and Rummel v. Estelle, 455 U.S. 263 (1980)).

In Rummel, this Court held that a "parolable" life sentence

for a third-time adult nonviolent offender did not violate the

Eighth Amendment, but "the Court did not rely simply on the

existence of some system of parole." Solem, 463 U.S. at 301.

"Rather, it looked to the provisions of the system presented,"

including that parole on a life sentence in that state was "a

regular part of the rehabilitative process" and "the normal

expectation in the vast majority of cases." Id., 300-301.

In Solem, by contrast, this Court held that a "parolable"

life sentence for a seventh non-violent offense (a "no account"

check) violated the Eighth Amendment because, the "parole system

[was] far more stringent than the one before us in Rummel," since

parole could be granted only if the governor granted a

commutation, the possibility of which was "nothing more than a

hope for an ad hoc exercise of executive clemency." Solem, 463

U.S. at 300-301 (quotation marks omitted).

In Graham, this Court held that LWOP imposed on a juvenile

non-homicide offender violates the Eighth Amendment in part

because the possibility of executive clemency is "remote."

Graham, 560 US at 69-70. See Parker v. State, 119 So.3d 987, 997

(Miss. 2013)(holding that a life sentence with "conditional

release" after age 65 is equivalent to LWOP under Miller because

'[c]onditional release is more akin to clemency, which the

Supreme Court has held '[ajs a matter of law' to be different

from parole 'despite some surface similarities.'")(quoting Solem

v. Helm, 463 U.S. 277 1 300 (1983)).

In other contexts as well, this Court has focused on

sentences' effects, rather than their labels. See Lynch v.

Arizona, 136 S.Ct. 1818 (2016)(holding that a life sentence with

the possibility of release by executive clemency after 25 years

is the same as LWOP for purposes of the due process requirement

to instruct a death-penalty jury that such a sentence renders the

defendant ineligible for parole).

E. PETITIONER'S SENTENCE VIOLATES THE EIGHTH AMENDMENT.

Petitioner Wilkins was sentenced to 45-100 years without the

sentencer considering any of the mitigating characteristics of

youth. Sent. Tr. 13-15. In Michigan, all defendants sentenced

for crimes committed after December 15, 2000, must serve their

entire minimum terms before they become eligible for parole.

Mich, Co!np, Laws §§ 791.234(5); 800.33(14); 800.34(5)(b).

Petitioner was 17 years old at the time of the offense in 2008,

but he was not arrested and charged until he was 23

years old. Therefore, he will not be eligible for release on

parole until he is 68 years old, which is past his life

expectancy.

The general life expectancy for black males who, like

Petitioner, were born in 1991, is 64.6 years. World Almanac Book

of Facts (2007), p.160 (citing National Center for Health

Statistics, U.S. Dept. of Health and Human Services). But at

least one study found that juveniles sentenced to prison for

lengthy terms live, on average, to only the age of 50.6. Cloud

v. State, 334 P.3d 132, 136, 142, nn.3 & 7 (Wyo. 2014)(relying on

this statistic to hold that a juvenile's sentence of 35 years,

after reductions for good time, is equivalent to LWOP); Casiano

v. Comm'r of Corrections, 115 A.3d 1031, 1046-47 (Conn. 2014)

(relying on the same statistic to hold that a 50-year sentence

imposed on a juvenile offender is equivalent to LWOP); State v.

Pearson, 836 N.W.2d 88 (Iowa 2016)(holding that a 35-year

sentence imposed on a juvenile is equivalent to LWOP).

Even assuming Petitioner's life expectancy is more than 68

years, his sentence still does not provide "some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation." Miller, 567 U.S. at 479. As the Third Circuit

explained in finding a sentence equivalent to LWOP that made the

juvenile offender eligible for parole the same year as his life

expectancy, age 72, Miller's "mandate encompasses more than mere

physical release at a point just before a juvenile offender's

life is expected to end. . . . [T]he state must give non-

incorrigible juvenile offenders the opportunity to meaningfully

reenter society upon their release." United States v. Grant, 887

F.3d 1319 147-148 (3d Cir. 2018). This is because Miller and

Graham make clear that "a non-incorrigible juvenile offender must

be afforded an opportunity for release at a point in his or her

life that still affords 'fulfillment outside prison walls,'

'reconciliation with society,' 'hope,' and 'the opportunity to

achieve maturity of judgment and self-recognition of human worth

and potential.'" Id. (quoting Graham, 560 U.S. at 79). See also

State v. Null, 836 N.W.2d 41, 71 (Iowa 2013)("The prospect of

geriatric release, if one is to be afforded the opportunity for

release at all, does not provide a 'meaningful opportunity' to

demonstrate the 'maturity and rehabilitation' required to obtain

release and reenter society"); Montgomery, 136 S.Ct. at 737

("hope for some years of life outside prison walls must be

restored.").

Therefore, Petitioner's 45-100-year sentence, imposed

without consideration of his mitigating characteristics of youth,

violates the Eighth Amendment.

It is true that the sentencing court considered Petitioner's

criminal convictions and acts committed from the age of 17 until

the age of 23, implying that Petitioner is incorrigible.

However, the court still did not consider or balance these acts

against the mitigating characteristics of youth, as required by

Miller. Further, more recent science has shown that a person's

brain is not fully mature until he reaches his mid-twenties.

Cruz v. United States, No. 11-cv-787; 2018 WL 1541898, at *23 (D.

Conn. Mar. 29, 2018). That means Petitioner's criminal acts that

the sentencing court relied on were, biologically, committed when

Petitioner was still a juvenile and therefore were at least

partly the result of his youthful impulsivity and other

mitigating characteristics. But this Court need not address the

issue of the age at which a person's misbehavior is no longer

mitigated by their lack of neurological maturity. It is

sufficient to find an Eighth Amendment violation that the

sentencing court did not consider the mitigating characteristics

of youth, as Miller requires.

Petitioner's 40-100-year sentence for second-degree murder

is also disproportionate because it is greater than the "default

sentence range"

no more than 40 years on the minimum term and

60 years on the maximum term

for juveniles convicted of the

greater offense of first-degree murder in Michigan. People v.

Carp, 496 Mich. 440, 458 (2014), vacated on other grds, Carp v.

Michigan, 136 S.Ct. 1355 (2016). The Eighth Amendment "right not

to be subjected to excessive sanctions.

flows from the

basic precept that punishment for crime should be graduated and

proportioned both to the offender and the offense." Miller, 567

U.S. at 469 (quotation marks omitted; emphasis added). "The

concept of proportionality is central to the Eighth Amendment."

Id. Under this principle, only those juveniles who are

incorrigible and convicted of the worst offenses may be sentenced

to LWOP (or de facto LWOP). Montgomery, 136 S.Ct. at 734

("sentencing a child to life without parole is excessive for all

but the rare juvenile offender whose crime reflects irreparable

corruption")(quotation marks omitted). At a minimum, this must

mean that LWOP (and de facto LWOP) may only be imposed on

juveniles convicted of the worst offense

first-degree murder.

See People v. Skinner,917 N.W.2d292,. .313; No. 152448; 2018

Mich. LEXIS 1150, at *41 (Mich. June 20, 2018)('only those

juvenile offenders who have been convicted of first-degree murder

can be subject to life without parole").

It therefore follows that Petitioner's sentence of de facto

LWOP for a lesser offense is disproportionate under the Eighth

Amendment. See Solem, 463 U.S. at 291 ("If more serious crimes

are subject to the same penalty, or to less serious penalties,

that is some indication that the punishment may be excessive.");

Landrum v. State, 192 So.3d 459, 468 (Fla. 2016)("permitting the

life-without-parole sentence for a juvenile offender convicted of

second-degree murder that was imposed without the sentencer

considering the 'distinctive attributes of youth' would be

grossly disproportionate when juvenile offenders convicted of the

more serious charge of first-degree murder and sentenced to life

imprisonment will receive the benefit of" the protections

mandated by Miller).

IT. THE TRIAL COURT'S ADMISSION OF THE.

PRELIMINARY EXAMINATION TESTIMONY OF AN

UNAVAILABLE WITNESS VIOLATED THE

CONFRONTATION CLAUSE BECAUSE PETITIONER DID

NOT HAVE AN ADEQUATE OPPORTUNITY TO CROSSEXAMINE.

INTRODUCTION

This Court has never squarely decided whether a preliminary

examination, conducted before full discovery, provides an

adequate opportunity for cross-examination of a prosecution

witness such that, if the witness is unavailable at trial, his

preliminary examination testimony is admissible under the

Confrontation Clause. Miller v. Maclaren, 737 F. App'x 269, 274

(6th Cir. 2018). In fact, the Court has strongly implied that

such testimony would be inadmissible under the Confrontation

Clause. Barber v. Pag, 390 U.S. 719, 725-726 (1968).

The Sixth Circuit, where Petitioner is located, although

recognizing "that there is some question whether a preliminary

hearing necessarily offers an adequate prior opportunity for

cross-examination for Confrontation Clause purposes," has held

that this issue cannot be litigated in habeas corpus cases

because this Court has not "clearly established" that rule under

28 U.S.C. § 2254(d). Williams v. Bauman, 759 F.3d 630, 636 (6th

Cir. 2014)(quotation marks omitted).

The Michigan Court of Appeals in this case held that the

admission of the preliminary examination testimony of an

unavailable witness did not violate the Confrontation Clause.

Appx. A, pp.7-9.

Therefore, "a state court

has decided an important

question of federal law that has not been, but should be, settled

by this Court[.]" Sup. Ct. Rule 10(c). Accordingly; this Court

should grant certiorari.

B. THE CONFRONTATION CLAUSE

"[I]n Crawford, the Court adopted a fundamentally new

interpretation of the confrontation right, holding that

'[t]estimonial statements of witnesses absent from trial [can be]

admitted only where the declarant is unavailable, and only where

the defendant has had a prior opportunity to cross-examine.'"

Williams v. Illinois, 567 U.S. 50, 64-65 (2012)(plurality)(citing

Crawford v. Washington, 541 U.S. 36, 59 (2004)). The

interpretation rejected by Crawford was that statements of

unavailable witnesses were admissible at trial if they bore

sufficient "indicia of reliability." Ohio v. Roberts, 448 U.S.

56 (1980).

"Crawford has resulted in a steady stream of new cases in

this Court." Williams, 567 U.S. at 65 (citing cases). But none

of them have addressed the question presented here.

This Court did discuss the question presented in this case

in Barber v. Page, 390 U.S. 719, 725 (1968). In that case, this

Court held that the trial court violated the Confrontation Clause

by admitting the preliminary examination testimony of a witness

who was incarcerated at a federal prison outside the trial

court's jurisdiction because the prosecution made no effort to

have the witness testify at trial and therefore failed to

establish that the witness was unavailable. This Court

explained, at 725-26,

The right to confrontation is basically a trial right.

It includes both the opportunity to cross-examine and

the occasion for the jury to weigh the demeanor of the

witnesses. A preliminary hearing is. ordinarily a much

less searching exploration into the merits of a case

than a trial because its function is the more limited

one of determining whether probable cause exists to

hold the accused for trial. While there may be some

justification for holding that the opportunity for

cross-examination of a witness at a preliminary hearing

satisfies the demands of the confrontation clause where

the witness is shown to be actually unavailable, this

is not, as we have pointed out, such a case. [FN 6]

6. Cf. Holman v. Washington, 364 F.2d 618 (5th Cir.

1966); Government of the Virgin Islands v. Aquino, 378

F.2d 540 (3d Cir. 1961).

In Holman and Aquino, the courts found Confrontation Clause

violations in the admission of prior trial and preliminary

examination testimony, respectively, because the prosecution in

both cases failed to establish the unavailability of the witness

at trial. In Aguino, the court expressed its belief that

preliminary examination testimony should never be admissible at

trial but found itself constrained to hold otherwise by decisions

of this Court. 378 F.2d at 549 & n.12 (citing West v. State of

Louisiana, 194 U.S. 258 (1904) and Motes v. United States, 178

U.S. 458 (1900)). However, this Court did not hold in either

West or Motes that the preliminary examination testimony of an

unavailable witness is admissible at trial. In West, this Court

held that the Confrontation Clause does not apply to the states,

a decision overruled in Pointer v. Texas, 380 U.S. 400, 406

(1965). In Motes, this Court held that the trial court violated

the Confrontation Clause by admitting the preliminary examination

testimony of a witness because the witness's absence from the

trial was due to the negligence of the prosecution. 178 U.S. at

469-474. Therefore, contrary to the Aquino court's belief, it

was not constrained by this Court's precedent to hold that

preliminary examination testimony is admissible at trial where

the witness is unavailable.

The Aquino court gave good reasons for its conclusion that

preliminary examination testimony should not be admissible at

trial, even if the witness is unavailable and the defendant

cross-examined him at the preliminary examination. 378 F.2d at

549.

Were the question one of first impression it would seem

that a clear-distinction should be recognized between

testimony given at a prior trial and testimony given at

a preliminary hearing. In the case of a prior trial

the goal of the cross-examination is precisely the same

as that which would have followed at the second trial

acquittal of the defendant. At the preliminary

hearing however, the cross-examiner is much more

narrowly confined by the nature of the proceeding. The

government's aim is merely to show a prima facie case

and its tactic is to withhold as much of its evidence

as it can once it has crossed that line. The fear of

adding to the government's case by extensive crossexamination weighs heavily on a defendants counsel at

a preliminary hearing, where much of the government's

case remains still in doubt. The cross-examiner

therefore is in a far different position than he would

be at trial, where the government must go beyond its

prima facie case to convince the jury of the

defendant's guilt beyond a reasonable doubt. Everyday

experience confirms the difference, for it is rare

indeed that on a preliminary hearing there will be that

full, and detailed cross-examination which the witness

would undergo at the trial. Credibility is not the

issue at a preliminary hearing as it is in a trial.

All the arts of cross-examination which are exerted to

impair the credibility of a witness are useless in a

preliminary hearing.

In addition, "[s]ince the purpose of the preliminary

examination is only to determine whether probable cause exits to

proceed to trial defense counsel may lack adequate motivation to

conduct a thorough cross-examination,

and may wish to avoid

tipping its hand to the prosecution by revealing the lines of

questioning it plans to pursue." Al-Timimi v. Jackson, 379 F.

App'x 435, 438 (6th Cir. 2010). Another "problem is that the

opportunity for cross-examination at the preliminary examination

may come too early in the process to be useful to the defense"

because, for example, as here, the defense had not been provided

with full disclosure of exculpatory and impeaching information,

which, "had it occurred at the trial stage, may well have

implicated the petitioner's due process rights under Brady v.

Maryland, 373 U.S. 83 (1963)." Al-Timimi, at 438.

In this case, trial counsel specifically cited the prediscovery timing of the preliminary examination as a reason for

the cross-examination's inadequacy. Trial Trans., Vol. 6, pp..57. In addition, the detective who read Lewis's testimony to the

jury at trial necessarily omitted every aspect of Lewis's

demeanor, his hesitation, his tone of voice, and every other nonverbal indicator of his lack of credibility. The use of a

detective to read Lewis's testimony, by itself, also likely lent

it a measure of credibility that it otherwise did not possess.

It is true that this Court has twice upheld the admission of

preliminary examination testimony of an unavailable witness at

trial. Ohio v. Roberts, 448 U.S. 56 (1980); California v. Green,

399 U.S. 149 (1970). But both of those cases are

distinguishable.

First, in neither case did this Court hold that preliminary

examinations, in general, provide an adequate opportunity for

cross-examination. Nor did this Court otherwise reject the

reasoning set forth above that they do not, especially where the

defense has not had full discovery. In Green, this Court also

disclaimed any attempt "to map out a theory of the Confrontation

Clause." Id., at 162. And, in Roberts, this Court declined to

resolve the question whether the mere opportunity for crossexamination or de minimis questioning would satisfy the

Confrontation Clause. Rather, in both cases, this Court merely

held that the particular preliminary hearings were conducted

under circumstances "closely approximating those that surrounded

the typical trial" and thus that the defense had an adequate

opportunity for cross-examination. Green, 399 U.S. at 165;

Roberts, 448 U.S. at 73 (holding that the preliminary hearing had

the same "accouterments of the preliminary hearing" in Green).

Further, the decision in Roberts is undermined by the fact

that this Court overruled Roberts's "indicia of reliability" test

in Crawford. And, although Crawford cited the outcome of Roberts

as supporting Crawford's new Confrontation Clause test, it did so

using language that suggests Roberts's outcome may not have been

precisely what it would have been under Crawford's test: "Even

our recent cases, in their outcomes, hew closely to the

traditional line.' Crawford, 541 U.S. at 58 (citing Roberts;

emphasis added). Hewing closely to the line is not the same as

toeing the line.

It is also true that there is language in Crawford that

appears to approve the use of preliminary examination testimony

at trial, but that language is based solely on Green and Roberts

which, as shown above, did not resolve the question presented in

this case. After announcing the new Confrontation Clause test in

Crawford, the Court said the following. 541 U.S. at 57 (emphasis

added).

Our case law has been largely consistent with

these two principles. Our leading early decision, for

example, involved a deceased witness's prior trial

testimony. Mattox v. United States, 156 U.S. 237

(1895). In allowing the statement to be admitted, we

relied on the fact that the defendant had had, at the

first trial, an adequate opportunity to confront the

witness .

Our later cases conform to Mattox's holding that

prior trial or preliminary hearing testimony is

admissible only if the defendant had an adequate

opportunity to cross-examine. See Mancusi v. Stubbs,

408 U.S. 2049 213-216 (1972); California v. Green, 399

U.S. 149, 165-168 (1970); Pointer v. Texas, 380 U.S. at

406-408; cf. Kirby v. United States, 174 U.S. 47 9 5561 (1899). Even where the defendant had such an

opportunity, we excluded the testimony where the

government had not established the unavailability of a

witness. See Barber v. Page, 390 U.S. 7199 722-725

(1968); cf. Motes v. United States, 178 U.S. 458, 470471 (1900). We have similarly excluded accomplice

confessions where the defendant had no opportunity to

cross-examine. .

Even our recent cases, in their outcomes, hew

closely to the traditional line. Ohio v. Roberts, 448

U.S. at 67-70, admitted testimony from a preliminary

hearing at which the defendant had examined the

witness.

Green and Roberts are the only cases in which this Court

upheld the admission of preliminary examination testimony under

the Confrontation Clause. In Mattox and Mancusi, this Court

upheld the admission of prior trial testimony. In Pointer, this

Court found that the admission of preliminary examination

testimony violated the Confrontation Clause because the defendant

was not represented by counsel at the preliminary examination.

In Kirby, this Court found that the admission of trial, testimony

from a co-defendant's trial violated the Confrontat-ion Clause

because the defendant had no opportunity to cross-examine the

witness.. And In Barber and Motes, this Court found that the

admission of the prior testimony violated the Confrontation

Clause because the prosecution failed to establish the

unavailability of the witnesses.

Therefore, this Court should grant certiorari to decide this

9 impor tali t question of federal law that has not been, but should

be, settled by this Court[.]" Sup, Ct. Rule iO(c)

CONCLUSION

Petitioner Najee Wilkins asks this Honorable Court to grant

the writ of certiorari.

Respectfully submitted,

Date:

4tlJ2uj,1

/JO/

Najee Wilkins #769141

Petitioner In Pro Per

Chippewa Correctional Facility

4269 W. M-80

Kincheloe, MI 49784

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