Appendix — Smith v. McKenzie

i

Table of Contents

Sixth Circuit Court of Appeals No. 01-1824

Order Reversing and Remanding dated

April 23, 2003, McKenzie v. Smith, 326 F.2d

I, EU iicsninsekasikicnieassenvinensseasenssonssiesesnvess la-3a

United States District Court No. 99-CV-70316

Opinion and Order Adopting Report and

Recommendation and Denying Petition dated

ici canarebiiebenelinniauninanitianes 14a-18a

United States District Court No. 99-CV-70316

Report and Recommendation dated March 29,

a issa coibdanevnasiidlinnigevibceentwiiantenceseverenvesen 19a-42a

Sixth Circuit Court of Appeals No. 98-0157

Se ME OE 6, FIR vcsvvsnsscricssnsevsonessserssccesvesoens 43a-44a

Michigan Supreme Court No. 106965 Order

Denying Delayed Application for Leave to

Appeal dated March 28, 1997.............0csssssssssesseeees 45a

Michigan Court of Appeals No. 191965 Order

Denying Leave to Appeal dated June 10, 1996......... 46a

Recorder’s Court for the City of Detroit

No. 84-1886 Opinion and Order Denying Motion

for Relief from Judgment dated January 18, 1995.... 47a-48a

Sixth Circuit Court of Appeals Nos. 92-1283/

92-1459 Order Denying Leave to Appeal

SE I BR PIE oisvnnnsnoiincicsareresovensrennnnenorevesecsonsens 49a-S0a

Sixth Circuit Court of Appeals No. 92-1283/92-1459

Order Denying Rehearing dated June 19, 1992 ........ Sla

ll

United States District Court No. 2:90-CV-300

Order Dismissing Petition for Writ of Habeas

Corpus dated January 27, 1992 ........:ssssseeseeeeretesens 52a-53a

Michigan Supreme Court No. 86893 Order

Denying Delayed Application for Leave to

Appeal dated February 26, 1990 ........:ss:sssssseeeeersees 54a

Michigan Court of Appeals No. | 16499 Order

Denying Delayed Application for Leave to

Appeal dated June 30, 1989 .......-..sssssesessererenrenesees 55a

United States District Court No. 86-CV-74475-DT

Memorandum Opinion and Order dated January 29,

Michigan Supreme Court No. 77352 Order

Denying Application for Leave to Appeal

dated March 26, 1986...........sccsssesssseeserreeeeenseneeeeeeens 62a

Michigan Court of Appeals No. 80131 Order

Affirming Conviction dated September 19, 1985..... 63a-73a

Sixth Circuit Court of Appeals No. 01-1824

Order Denying Petition for Rehearing En Banc

dated Jurne 19, 2003...........:ccescesreeesreetreseeeeeneneeereeseens 74a-75a

Statutes Involved

2B U.S.C. § 2241 uu... ceessesesssssereeesssserensenennesnsersnnensenees 76a

2B U.S.C. § 2244... ccssssesseessrsesecssenssnneenseneseneneenenns T7a

QB U.S.C. § 2254......cscessessessesecsseneeenesnsnnenensnsensenenees 79a

la

326 F.3d 721, *; 2003 U.S. App. LEXIS 7611, **;

2003 FED App. 0119P (6th Cir.), ***

GERALD MCKENZIF, Petitioner-Appellant,

v.

DAVID SMITH, Warden, Respondent-Appellee.

No. 01-1824

UNITED STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT

326 F.3d 721; 2003 U.S. App. LEXIS 7611; 2003 FED App.

0119P (oth Cir.)

September 17, 2002, Argued

April 23, 2003, Decided

April 23, 2003, Filed

SUBSEQUENT HISTORY: Rehearing, en banc, denied by

McKenzie v. Smith, 2003 U.S. App. LEXIS 12561 (6th Cir.,

June 19, 2003)

JUDGES: Before: SILER, DAUGHTREY, and GILMAN,

Circuit Judges.

OPINION BY: MARTHA CRAIG DAUGHTREY

OPINION: [*722]

MARTHA CRAIG DAUGHTREY, Circuit Judge. The

petitioner, Gerald McKenzie, is a Michigan state prisoner who

was convicted of assault with intent to murder and, as a result

of that conviction, is serving a sentence of life imprisonment.

He appeals the district court's judgment denying his petition for

2a

a writ of habeas corpus, filed under 28 U.S.C. § 2254. For the

reasons set out below, we conclude that the evidence

introduced against McKenzie is constitutionally insufficient to

sustain his conviction, and we therefore find it necessary to

reverse the district court's denial of relief.

FACTUAL AND PROCEDURAL BACKGROUND

In 1984, a Michigan jury found Gerald McKenzie guilty of the

attempted murder of his girlfriend's three-year-old daughter, in

violation of MCLA § 750.83. The evidence at trial established

that, in the early morning hours of March 7, 1984, a

construction worker reporting for work in downtown Detroit

encountered a woman he had never seen before. The woman,

who was never identified, told the worker to enter a nearby

vacant building. He did so and found a three-year-old girl lying

unconscious on the floor of the unheated building. Although

the temperature that morning was as low as seven degrees, the

girl was dressed only in a T-shirt and overalls, without a coat,

socks or shoes. A pool of blood from her head had frozen,

sticking her face to the floor. The worker picked up the child

and took her out of the building. He then found a police officer

who took the child to the hospital.

[*723] When admitted to the hospital, the child, Quattura

Sutton, was in critical condition and experiencing severe

hypothermia. She had several severe bruises to her head that

were, according to the emergency room physician, new and

suggestive of abuse. The doctor further testified that Quattura

was emotionally traumatized and was in an "acutely deranged

abnormal condition." He described Quattura as "withdrawn"

and said that she "did not appear normal psychologically for

several weeks."

Quattura lived with her mother, Elena Carter, and Carter's

boyfriend, petitioner McKenzie, at the home of Carter's aunt,

Patricia. Patricia and her two children, Tonya and Wilbert, also

3a

resided in the home, located around the corner from the vacant

building in which Quattura was found. McKenzie and Carter

had been dating for nearly three years and had been living

together since Quattura was almost a year old. Both Carter and

Carter's mother testified that although McKenzie was not

Quattura's biological father, Quattura referred to him as

"Daddy."

On the night of March 6, 1984, Carter and McKenzie spent the

evening at home, both of them using drugs with a friend,

Darrell Reed. They later walked Reed to the bus stop, returning

home at 1:00 a.m. Carter testified that she told McKenzie she

was going back out to borrow money to buy more drugs.

McKenzie told Carter he was going to lie on the living room

couch with Quattura. He said he would lock the door, and he

told Carter that she should ring the doorbell when she returned.

At the time, Patricia was upstairs in her bedroom, and her two

children were on a couch in the dining room.

Carter admitted at trial that she had no intention of going out to

get money that night. Rather, she intended to join another man,

Johnny Williams, to do drugs. Carter said that she spent the

remainder of the night with Williams and called her mother

sometime after 11:00 a.m. on March 7, at which time she was

told that Quattura was in the hospital.

After awakening on the morning of March 7, Patricia saw

McKenzie sitting on the bed in the back bedroom and heard

him making a crying noise. Patricia testified that McKenzie

asked her if she had seen Quattura and told her that the child

was not in the house. Patricia went downstairs looking for

Quattura, but could not find her. She noted that the door was

unlocked. Around noon, Patricia received word that Quattura

was in the hospital.

Patricia's nine-year-old son Wilbert testified that he woke up

the morning of March 7 when he heard McKenzie come into

4a

the house through the front door. Wilbert stated that he saw

McKenzie go up to his mother's bedroom and then into

McKenzie's own bedroom, where he sat down and "made

funny noises like he was crying."

Quattura's maternal grandmother, Juanita Horton, testified that |

she saw her granddaughter in the hospital at about 1:30 a.m. on i

March 8, the day after she was admitted. She described

Quattura's condition as "drowsy" and said that the child was

—"in a lot of distress." Horton testified that she asked Quattura,

"How is Grandma's baby?" Over a hearsay objection from

McKenzie's lawyer, Horton testified that Quattara said, "See,

Grandma, what my daddy did to me." The trial judge ruled that

this statement qualified as an excited utterance and was

therefore admissible as an exception to the hearsay rule. The

parties had agreed that Quattura was not competent to testify,

and she was not called as a witness at McKenzie's trial.

The parties stipulated that Quattura's hospital records contained

a notation by a [*724} nurse who was present in the room

around the same time and "had indicated she thought she heard

[the child say] 'Donna," rather than "Daddy." However, the

trial judge excluded evidence that Quattura, when asked two or

three days later who had injured her, told the nurse, "Will did

it." McKenzie's lawyer argued that the jury should be allowed

to hear testimony concerning the "Will statement” because it

was inconsistent with the "Daddy statement" introduced

through testimony by Quattura's grandmother. The trial court,

however, concluded that the statement "Will did it" was "not

impeachment, as such," and excluded the evidence.

The state produced no physical evidence linking McKenzie to

Quattura's assault. Lab technician Paula Lytle of the Detroit

police department told the jury that she found Type O blood

stains on a lamp shade taken from Quattura's home. According

to Lytle, human blood of indeterminate type was also found at

the foot of the staircase in the home. Lytle explained that her

Sa

testing revealed that Quattura had Type O blood. Lytle further

testified that her analysis of McKenzie's boots came up

negative for blood stains. On cross-examination, Lytle also

acknowledged that hair fibers found on Quattura at the hospital

were found to be "dissimilar" to samples taken from

McKenzie.

Also during the state's case-in-chief, Elena Carter testified that

she was unaware of Mc <enzie having ever hit Quattura in the

past. Juanita Horton and Aaron Horton, Quattura's

grandparents, testified to the same effect. Patricia said that

McKenzie and Carter had been having disagreements about

Carter's leaving and staying out late. However, Carter denied

arguing with McKenzie that night, and she testified that

McKenzie "wasn't upset" with her when she left the house.

McKenzie did not testify at his trial - or present any evidence

at all - but statements that he made to police on March 7 and 8

were introduced into evidence by the prosecution. In his

statements, McKenzie denied harming Quattura or removing

her from the house. McKenzie did admit to using drugs earlier

in the evening. He also said that he slept that night in an

upstairs bedroom, not on the couch with Quattura, and did not

become aware of the child's absence until he went downstairs

at about 6:30 a.m.

After deliberating for four hours over a two-day period, the

jury informed the trial court that it was deadlocked. The trial

court rejected the defense's request for a mistrial and delivered

an Allen charge. About four hours later, the jury returned with

a guilty verdict. Subsequently, the trial judge sentenced

McKenzie to a term of life imprisonment.

Since then, McKenzie's post-trial litigation, from direct appeal

to the instant petition, has been lengthy and complex.

Direct Appeal

6a

On direct appeal, McKenzie raised several issues: (1) that the

Allen charge was unduly coercive; (2) that Quattura's

statement to her grandmother was improperly admitted as an

excited utterance; (3) that the trial court's application of the

Michigan rules of evidence deprived him of due process and

the right to confrontation; (4) that the prosecution's

introduction of photographs of the injured child was unduly

prejudicial; and (5) that his life sentence violated Michigan

sentencing guidelines. In addition, McKenzie's appellate

counsel included a one-sentence argument that McKenzie was

denied the effective assistance of trial counsel. The Michigan

Court of Appeals affirmed the sentence and conviction in an

unpublished order, and the Michigan Supreme Court denied

[*725] McKenzie's application for review of the second, third,

and fourth issues.

First Habeas Corpus Petition

In 1986, McKenzie filed a pro se petition for a writ of habeas

corpus in federal court, contending that the state trial court

misapplied Michigan law in admitting Quattura's statement to

her grandmother, misapplied Michigan law in admitting the

photographs of the victim, and made evidentiary rulings that

deprived McKenzie of his Sixth Amendment right to confront

witnesses against him. The district court concluded that the

first two claims were not cognizable habeas claims because

they concerned solely state law matters and that McKenzie

failed to meet his burden with regard to the third. The district

court denied the petition, and McKenzie did not appeal.

Delayed Application for Leave to Appeal

Again acting pro se, McKenzie filed a delayed application for

leave to appeal with the Michigan Court of Appeals. In his

application, McKenzie raised five issues, including

insufficiency of the evidence supporting his conviction. In June

Ta

1989, the Michigan Court of Appeals denied the application,

and the Michigan Supreme Court subsequently denied an

identical application.

Second Habeas Corpus Petition

McKenzie returned to federal court in 1990, filing a second pro

se habeas petition that asserted the same five issues raised in

his delayed application for leave to appeal. The district court

dismissed the petition under the "abuse of the writ" doctrine,

and we subsequently denied McKenzie's application for a

certificate of probable cause to appeal.

Motion for Relief from Judgment

McKenzie then filed a pro se motion for relief from judgment

in the Michigan trial court in early 1995. In the motion,

McKenzie argued that his state and federal constitutional rights

were violated because "the prosecution failed to prove his guilt

beyond a reasonable doubt and the only evidence submitted

against him was an erroneously admitted third party hearsay

statement," that he had been deprived of the effective

assistance of trial and appellate counsel, and that the sentence

imposed by the trial court was disproportionate and improper.

The state court ruled that McKenzie was not entitled to relief

with respect to the first issue, which the court described as "the

admission of a third party statement in evidence," because it

"was previously raised on appeal and decided against the

defendant by the Court of Appeals." The court therefore

determined that the first claim was barred by Michigan Court

Rule 6.508(D)(2), which precludes relief if a motion "alleges

grounds for relief which were decided against the defendant in

a prior appeal." With respect to the remaining two issues, the

court ruled that McKenzie was barred from relief pursuant to

Michigan's procedural default rule, Michigan Court Rule

8a

6.508(D)(3). The court did, however, appoint McKenzie

counsel for purposes of appeal.

Through appointed counsel, McKenzie filed a motion for

reconsideration with the trial court with respect to his motion

for post-judgment relief. The court denied the motion, and the

Michigan Court of Appeals and Michigan Supreme Court

denied leave to appeal.

Federal Habeas Corpus Petition

In June 1998, McKenzie asked this court for permission to file

a successive habeas petition. Specifically, McKenzie wanted to

[*726] present to the district court claims that (1) he had been

deprived of the effective assistance of trial and appellate

counsel and (2) there had been insufficient evidence to convict

him. We ruled that, to avoid a potential miscarriage of justice,

McKenzie's claims should go forward:

Upon review, we conclude that the requirements contained in

28 U.S.C. § 2244 do not apply to this case, because applying

these requirements would have an impermissible retroactive

effect on McKenzie's conduct that predates the passage of the

Antiterrorism and Effective Death Penalty Act of 1996...,

which enacted the current version of § 2244. Although

McKenzie has filed two prior petitions, which might have

rendered his proposed petition a successive or abusive petition,

we conclude that McKenzie has facially met the gateway

standard for permitting review of his claims in order to prevent

a fundamental miscarriage of justice. See Schlup v. Delo, 513

U.S. 298, 316-17, 130 L. Ed. 2d 808, 115 S. Ct. 851 (1995).

Thus, he is entitled to review of the merits of his two asserted

claims.

In re McKenzie, No. 98-0157 (6th Cir. May 11, 1999)

(citations omitted).

9a

When the case reached the district court, the court denied the

state's motion to dismiss, granted McKenzie's motion for

appointment of counsel, and referred the petition to a

magistrate judge. The magistrate judge held an evidentiary

hearing, at which only McKenzie's trial counsel testified.

Following the hearing, the magistrate judge issued a report and

recommendation that the petition be denied. On the issue that

we now find dispositive, insufficiency of the evidence, the

magistrate determined that "based upon Quattura's statement to

her grandmother that the man she called 'daddy' had assaulted

her and the additional circumstantial evidence presented by the

prosecution to show opportunity, . . . sufficient evidence was

presented such that a juror could have reasonably concluded

that Petitioner was guilty of assault with intent to murder."

Overruling McKenzie's objections, the district court adopted

the report and recommendation and denied McKenzie's

petition. The district court agreed with the magistrate judge

regarding the sufficiency of the evidence, noting that "while

much of the evidence . . . was circumstantial," there was

nevertheless sufficient evidence from which a reasonable juror

could find McKenzie guilty beyond a reasonable doubt.

ANALYSIS

Standard of Review

McKenzie raised the sufficiency of the evidence claim in his

motion for relief from judgment, filed with the trial court in

1994. In rejecting the motion, the trial court failed to address

McKenzie's claim. Instead, the trial court held that the claim

had already been raised and decided against the defendant by

the Michigan Court of Appeals and dismissed the sufficiency

claim under Michigan Court Rule 6.508(D)(2), which

precludes relief on grounds "which were decided against the

defendant in a prior appeal or proceeding." Our review of the

record convinces us that the Michigan appellate court

10a

considered the admissibility of the evidence but not its

sufficiency to support McKenzie's conviction.

In our sister circuits, federal claims are reviewed de novo when

a state court fails to adjudicate the claim on the menits. See

Schoenberger v. Russell, 290 F.3d 831, 839 (6th Cir. 2002)

(Keith, J., concurring) (collecting cases). In our circuit, by

contrast, existing precedent binds us to the strictures of 28

U.S.C. § 2254 [*727] even "when there is no state court

decision articulating its reasons." Harris v. Stovall, 212 F.3d

940, 943 (6th Cir. 2000). In this instance, however, we believe

that Harris is distinguishable. There, the state court issued a

summary order granting the prosecutor's motion to affirm. Jd.

Although the court did not explain the basis for its reason, we

can safely assume that the state court considered the merits of

Harris's claim. Here, with regard to McKenzie's sufficiency

claim, the trial court believed that the court of appeals had

already considered the claim. However, as noted above, the

Michigan appellate court addressed only the admissibility of

the evidence, but never directly addressed the specific issue of

whether the evidence was sufficient to support McKenzie's

conviction. Accordingly, there are simply no results, let alone

reasoning, to which this court can defer. Without such results

or reasoning, any attempt to determine whether the state court

decision "was contrary to, or involved an unreasonable

application of clearly established Federal law," 28 U.S.C. §

2254(d)(1), would be futile. If deference to the state court is

inapplicable or inappropriate, we "exercise our independent

judgment” and review the claim de novo. Hain v. Gibson, 287

F.3d 1224, 1229 (10th Cir. 2002); see also Cox v. Miller, 296

F.3d 89, 101 (2nd Cir. 2002) (noting that habeas claims are

either subject to AEDPA standard or reviewed de novo);

Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998) (reviewing

claim de novo once AEDPA deference found to be

inappropriate).

Sufficiency of the Evidence

lla

In assessing whether there is sufficient evidence to support

McKenzie's conviction, we must determine whether, after

viewing the evidence in the light most favorable to the

government, "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S.

Ct. 2781 (1979) (emphasis in original). It is the province of the

fact-finder, not this court, to weigh the probative value of the

evidence and resolve any conflicts in the testimony. See i.d.

Furthermore, "circumstantial evidence alone, if substantial and

competent,.may support a verdict and need not remove every

reasonable hypothesis except that of guilt." United States v.

Talley, 194 F.3d 758, 765 (6th Cir. 1999). However, if the

judgment is not supported by "substantial and competent

evidence" upon the record as a whole, the judgment must be

reversed. See United States v. Khalil, 279 F.3d 358, 368 (6th

Cir. 2002).

At issue is whether the evidence was sufficient to establish,

beyond a reasonable doubt, that McKenzie was the perpetrator

of the assault. McKenzie argues that because "there was

neither physical evidence, nor eyewitness testimony, that in

any way implicated [ ] McKenzie in the assault," no rational

trier of fact could have found him guilty. The state counters

that the child's hearsay statement to the effect that "Daddy did

it," along with the evidence that McKenzie had the opportunity

to commit the crime, is sufficient to support his conviction.

The district court cited the child's hearsay statement in

concluding that the state met its evidentiary burden.

The jury's reliance on Quattura's out-of-court statement is

understandable. McKenzie was charged with a brutal assault

on a three-year-old child who was badly injured and then

abandoned in a vacant building, in a situation that was

obviously life-threatening. However, it is in just these

circumstances, when the crime itself is likely to inflame the

12a

passions of jurors, that courts must be vigilant in [*728]

ensuring that the demands of due process are met.

We consider first the statement implicating McKenzie,

evidence the state argues is sufficient to support the conviction.

The parties stipulated that Quattura was not competent to

testify during the trial. At the time of the assault, she was three

years old. According to her doctor, Quattura was "somewhat

withdrawn and did not appear normal psychologically" for

several weeks after the assault. He described Quattura's

condition as an “acutely deranged abnormal condition."

According to Juanita Horton, Quattura was "drowsy" and "in a

lot of distress" on the day the statement was made.

Furthermore, a nurse in the room heard her say "Donna" rather

than "Daddy."

Because this was an out-of-court statement and Quattura was

deemed incompetent to testify, cross-examination was

impossible. Given the age and mental state of Quattura and the

conflicting versions of what she said, we find unwarranted the

state's reliance on this statement, and virtually this statement

alone, to support the petitioner's conviction. While such

evidence could certainly be used to add to the prosecution's

case, a statement made under circumstances such as those in

this case by an "incompetent" declarant simply does not

constitute proof beyond a reasonable doubt. Cf. United States

v. Orrico, 599 F.2d 113 (6th Cir. 1979) (holding past

recollection recorded and prior inconsistent statement

insufficient, standing alone, to establish central element of

alleged offense).

There was circumstantial evidence that suggested McKenzie

was in the home and upset the morning Quattura was

discovered to be missing. However, there were other people in

the home on the morning Quattura was assaulted. Additionally,

there was no physical evidence or eyewitness testimony linking

McKenzie to the assault on Quattura. Family members testified

13a

that they had never seen McKenzie harm Quattura and could

not imagine that he would.

We have grave doubts about the legitimacy of the state trial

court's original determination that Quattura's out-of-court

statement was admissible as an excited utterance, but that

question is one of state law, not reviewable in a federal habeas

action "unless [the error] so perniciously effected the

prosecution of a criminal case as to deny the defendant the

fundamental right to a fair trial." Kelley v. Withrow, 25 F.3d

363, 370 (6th Cir. 1994). Although this could potentially

provide an alternative ground for granting the writ of habeas

corpus, our resolution of the case on other grounds obviates the

necessity for us to decide the question. We have, as well,

substantial misgivings 2bout trial counsel's failure to address

the confrontation issues inherent in the trial court's decision to

permit introduction of the "Daddy statement" while ruling

inadmissible the "Will statement," but that federal

constitutional question is also one we need not reach in view of

our ruling on the sufficiency of the convicting evidence. On

that score, and given the circumstances of the child's out-of-

court statement and the lack of any corroborating evidence, we

hold - upon the record as a whole - that the petitioner's

conviction is not supported by constitutionally sufficient

evidence. Although we can understand why a jury would want

to convict someone for the crime involved in this case, the

proof is neither substantial nor competent enough to let stand

the jury's verdict finding McKenzie guilty.

CONCLUSION

For the reasons set out above, we REVERSE the judgment of

the district court [*729] and REMAND the case with

directions to the district judge to issue the writ of habeas

corpus.

l4a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD McKENZIE,

Petitioner,

VS. Case No. 99-CV-70316

WARDEN, RYAN REGIONAL HON. AVERN COHN

CORRECTIONAL FACILITY,

Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

ISSUANCE OF A CERTIFICATE OF APPEALABILITY

This is a habeas case under 28 U.S.C. § 2254. Petitioner Gerald

McKenzie (Petitioner) was convicted by a jury of assault with

intent to murder regarding the near death from hypothermia of

then three-year-old Quattura Sutton. Petitioner was sentenced

to life imprisonment. Petitioner claims he is incarcerated in

violation of his constitutional rights and specifically claims that

there is insufficient evidence to support his conviction and that

he was denied effective assistance of trial and appellate

counsel. The matter was referred to a magistrate judge for a

report and recommendation (MJRR). The magistrate judge

conducted an evidentiary hearing on Petitioner’s claims at

which Petitioner’s trial counsel testified. The magistrate judge

analyzed Petitioner’s claims in light of the entire record and

recommends that the petition be dismissed. Before the Court

are Petitioner’s objections to the MJRR. As explained below,

Petitioner’s objections lack merit.

The MJRR sets forth the relevant factual and procedural

history of the case, which will not be repeated here.

15a

Petitioner first objects to portions of the recitation of the facts

in the MJRR. Petitioner is correct that the victim was found on

March 7,1984, not May 7,1984 as stated in the MJRR.

Petitioner is also correct that although the victim’s mother,

Kim Cater testified on direct examination that “she did not do

any drugs” on the night in question, as stated in the MJRR,

Kim testified on cross-examination that she “probably was”

doing drugs that night both before and after she left the house.

As explained more fully below, neither error in the MJRR,

however, compels a conclusion different than that

recommended by the magistrate judge. Thus, this objection

fails.

Petitioner next objects to the magistrate judge’s finding that

Petitioner’s conviction is supported by sufficient evidence.

While much of the evidence against Petitioner was

circumstantial, the victim identified Petitioner as the individual

responsible for her injuries by her statement to her

grandmother in the hospital that “See grandma, what my

Daddy’ did to me.” After a careful review of the trial

transcript, the Court is satisfied that viewing all of the evidence

in a light most favorable to the prosecution, there was

sufficient evidence presented at trial such that a reasonable

juror could find Petitioner guilty beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979). This

objection therefore also fails.

Petitioner also objects to the magistrate judge’s conclusion that

Petitioner was not deprived of the effective assistance of

counsel, either by his trial counsel or appellate counsel. The

basis for Petitioner’s claim was that the victim apparently

made a statement a few days after the incident that “Will did

' The evidence at trial revealed that the victim called the

Petitioner “daddy,” although he is not her biological father.

l6a

it.” Petitioner says that trial counsel did not fully investigate

the identity of ‘Will’ and if he had, he would have discovered

in Kim Carter’s statements to the police that she referred to the

man who she went to visit that might, Johnny Williams, as

“Will.” At trial, Petitioner’s counsel did attempt to introduce

the “Will did it” statement, but the trial court declined to admit

it under the rules of evidence. A review of the record shows

that one of the victim’s cousins who was at the house on the

night of the incident was named Will and that was the only

individual thought to be the “Will” at the time of trial. While

Petitioner’s trial counsel may have been deficient in failing to

fully investigate the identity of “Will” or cross-examine Kim

Carter or Johnny Williams regarding the name “Will,”

Petitioner suffered no prejudice in light of the trial court’s

ruling that the “Will did it” statement was inadmissible. See

MJRR at p. 20-21. Moreover, Petitioner also cannot show

prejudice given the victim’s statement identifying Petitioner

and the circumstantial evidence of Petitioner’s guilt. Thus, this

objection lacks merit.

Petitioner’s final objection that the Court had not previously

ruled on his Confrontation Clause claim lacks merit for the

reasons stated in the MJRR at p. 15-16.

Accordingly, the findings and conclusions of the magistrate

judge are adopted as the findings and conclusions of the Court,

as supplemented above. The petition for habeas corpus is

DENIED and this case is DISMISSED.

SO ORDERED.

CERTIFICATE OF APPEALABILITY

Before Petitioner may appeal the Court’s decision denying his

habeas petition, a certificate of appealability must issue. See 28

U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of

Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). A

17a

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. § 2253(c)(2). In Slack v. McDaniel __ U S.

__, 120 5. Ct: 1595, 1604 (2000), the United States Supreme

Court made clear that where a petition is rejected on the merits,

“the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims

debatable or wrong.”

Based upon this standard, a certificate of appealability is

ISSUED on the following claims: (1) insufficiency of the

evidence, and (2) ineffective assistance of counsel.

S/S

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: June 04 2001

Detroit, Michigan

A TRUE COPY

CLERK U.S. DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

BY S/S

DEPUTY CLERK

18a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD McKENZIE,

Petitioner

- VS - Civil No. 99-70316

WARDEN, RYAN REGIONAL

CORRECTIONAL FACILITY,

Respondent.

JUDGMENT OF DISMISSAL

For reasons stated in the Court’s Order Adopting Report and

Recommendation, Issuance of Certificate of Appealability

entered and filed this date, the petition for writ of habeas

corpus is DENIED, and the above case is DISMISSED.

JOHN P. MAYER

CLERK OF THE COURT

By: S/S

Deputy Clerk

Dated: JUN 04 2001

I hereby certify that the foregoing is a true copy of the original

on file in this Office.

CLERK, U.S. DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

By S/S

Deputy Clerk

;

¢

:

f

;

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIC AN

SOUTHERN DIVISION

GERALD MCKENZIE,

Petitioner, Case Number: 99-70316

V. HONORABLE AVERN COHN

HONORABLE MARC L. GOLDMAN

WARDEN, RYAN REGIONAL

CORRECTIONAL FACILITY,

Respondent.

REPORT AND RECOMMENDATION

I. Introduction

This is a petition for a writ of habeas corpus filed pursuant to

28 U.S.C. § 2254. On June 26, 1984, Petitioner was convicted

of assault with intent to murder, following a bench trial in the

Recorder’s Court for the City of Detroit. Petitioner is currently

incarcerated at the Ryan Correctional Facility in Detroit,

Michigan. He is serving a life sentence.

II. Facts

Petitioner’s conviction arises out of the near death from

hypothermia of then three-year-old Quattura Sutton. Quattura

lived with her mother Elena (also known as “Kim”) Carter and

her mother’s boyfriend, Petitioner Gerald McKenzie, in the

home of Kim’s aunt, Patricia Carter. Patricia Carter’s children,

Wilbert (9 years old) and Tonya (5 years old), also lived in the

home.

20a

During the early morning hours of May 7, 1984, construction

worker Thomas Pryor, while on his way to a construction site

in downtown Detroit, was flagged down by a woman he had

never seen before and whose identity was never determined

and told to go to a nearby vacant building. Mr. Pryor entered

the vacant building and found three-year-old Quattura Sutton

lying unconscious on the floor with her head stuck to frozen

blood that had pooled around her head. Mr. Pryor testified that

Quattura was dressed only in a light t-shirt and overalls. He

further testified that although it was only about seven degrees

outside, Quattura did not have on socks, shoes, or an overcoat.

Mr. Pryor picked up Quattura, ran outside and found police

officer James Fintor, who took Quattura to the hospital.

Quattura remained in the hospital for seven days. The

emergency room physician, David Treloar, testified that

Quattura was in critical condition when she was brought to the

hospital. She was suffering from severe, life-threatening

hypothermia. He also testified that she had numerous bruises

on her face and head, a small amount of bleeding in the back of

her head, and some blood above her eye. Dr. Treloar testified

that these injuries, absent the hypothermia, were not life-

threatening. He further testified that these injuries were

suggestive of abuse rather than an accidental fall and that they

were the result of considerable force and therefore likely to

have been caused by an adult rather than a child.

Kim Carter testified that she and Petitioner had been living

together since Quattura was approximately one year old.

Although Petitioner was not Quattura’s biological father, Kim

testified that Quattura called him “daddy” Tr. Trans., Vol. II,

p. 8. Kim also testified that she never observed Petitioner

threaten or hit Quattura. On the night in question, Kim claimed

to have come home at about 7:00 p.m. Shortly thereafter,

Petitioner arrived home. At approximately 9:00 p.m.,

Petitioner’s friend, Darrell Reed, came over and Reed and

Petitioner “shot some drugs.” /d. at p. 11. Kim testified that she

2la

did not do any drugs at that time. After some time, she and

Petitioner walked Reed to the bus station. They then both

returned home. At approximately 1:00 a.m., Kim told

Petitioner she was going to leave to try to get money for drugs.

Petitioner gave her a coat she could pawn for money. Kim

testified that, when she left the house, Quattura was asleep on

the couch in the living room, and her niece and nephew,

Wilbert and Tonya, were sleeping on a couch in the dining

room. She further testified that when she was leaving,

Petitioner told her he would lock the door behind her and that

he would sleep on the couch with Quattura.

Kim testified that although she told Petitioner she was going to

borrow some money to get drugs and would then return, she

did not intend to return. She planned to go over to another

man’s house, Johnnie Williams. She testified that she spent the

night at Williams’ house taking drugs. Kim called her mother

at approximately 11:00 a.m. the next morning. Kim’s mother

told her that Quattura had been rushed to the hospital.

Johnnie Williams testified at trial that Kim Carter came over to

his house at approximately 12:00 or 12:30 a.m. on March 7,

1984. He and Kim spent the night shooting, smoking, and

snorting drugs. Williams further testified that he did not fall

asleep until daybreak and that from the time Kim came over to

his house until he fell asleep, Kim did not leave the house.

Patricia Carter, Kim Carter’s aunt, testified that she went to

bed at approximately midnight on the evening of March 6th.

When she went to bed, Wilbert and Tonya were asleep on a

couch in the dining room and Quattura was asleep on a couch

in the living room. She also testified that Petitioner was in the

house when she went to sleep. Patricia stated that she slept

through the night until Petitioner woke her up by knocking on

her bedroom door at approximately 6:30 or 7:00 a.m. Talking

through the closed door, Petitioner asked Patricia whether she

had seen Quattura or Kim. Patricia and Petitioner then began

a i

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4

22a

searching the house, but they did not find Quattura. Shortly

thereafter, Patricia left the house to go shopping. She testified

that she did not learn that Quattura had been found in a vacant

building until she returned from the store at about noon.

Kim’s mother, Juanita Horton, testified that she went to visit

Quattura after learning that Quattura was in the hospital. She

and Kim were permitted to see Quattura at approximately 1:30

a.m. on March 8th. They were the first family members

permitted to see her. Juanita testified that when she was

visiting her granddaughter, Quattura said, “‘See, grandma, what

my daddy did to me.” Tr., Vol. I, p. 130. The trial court

admitted this hearsay statement under the excited utterance

exception to the hearsay rule.

Paula Lyttle, a serologist for the City of Detroit Crime Lab,

testified at trial regarding various suspected blood samples

taken from: (1) a lamp in the Carter house; (2) a carpet at the

bottom of the staircase in the Carter house; (3) a child’s dress

found in the Carter house; (4) the clothing Quattura was

wearing when she was found in the abandoned building; and

(5) Petitioner’s boots. The lamp in the Carter house was found

to have Type O blood stains. The carpet at the bottom ofthe -

staircase was found to have blood stains, but the quantity of

blood was insufficient for typing. The child’s dress found in

the Carter house was determined to have Type B blood stains.

The clothing Quattura was wearing was found not to have any

blood stains sufficient for typing. The clothing did, however,

contain hair samples which were compared to hair samples

taken from Petitioner. Ms. Lyttle testified that the hair samples

taken from Quattura’s clothing could not have come from

Petitioner. Finally, the substance on Petitioner’s boots which

police suspected was blood tested negative for human blood.

Quattura’s blood type is O. No testimony was offered

regarding Petitioner’s blood type.

23a

Defense counsel did not present any witnesses at trial.

Petitioner’s statement to police was admitted into evidence. In

that statement, Petitioner stated that Kim left the house at

approximately 1:30 a.m. on March 7th to purchase some drugs.

Petitioner stated that he went upstairs to bed at some point

shortly after Kim left. Quattura was asleep on the couch when

Petitioner went to sleep. He woke up at 6:30 or 7:00 the next

morning. She was gone when he woke up.

There were two notations in Quattura’s medical records that

defense counsel attempted to have admitted into evidence. The

first, which the trial court did admit, was written by a nurse

who was found to be unavailable for trial. The nurse, who was

present when Quattura’s grandmother was visiting Quattura,

made a notation that Quattura told her grandmother, “Donna

did this to me” not, as the grandmother testified “See,

grandma, what my daddy did to me.” Tr. Trans., Vol. Ill, p. 13.

The second notation was made by a nurse who asked Quattura

who hurt her. The nurse made a notation in the chart that

Quattura responded, “Will did it.” Id. The trial court excluded

this testimony, reasoning that, because it was further in time

from the assault than the statement, “See, grandma, what my

daddy did to me” it did not fall under the excited utterance

exception to the hearsay rule.

III. Procedural History

Following a jury trial in the Recorder’s Court for the City of

Detroit, Petitioner was convicted of assault with intent to

murder. On July 20, 1984, he was sentenced to life

imprisonment.

Petitioner filed a direct appeal with the Michigan Court of

Appeals, presenting the following claims:

I. Reversible error occurred when the trial court gave an

Allen charge which substantially departed from the

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ABA standard jury instruction adopted in People v.

Sullivan, 492 Mich. 324 (1974).

II. The trial judge committed reversible error in ruling

that the victim’s out of court statement was an excited

utterance.

III. The strict application of Michigan Rules of Evidence

denied appellant the right to present a defense, and

the right to due process of law, as guaranteed by both

state and federal constitutions.

IV. _ It was reversible error for the court to admit

photographs four and five.

V. The case should be remanded back to trial court for

resentencing in light of new laws urging the usage of

the new sentencing guidelines.

The Michigan Court of Appeals affirmed Petitioner’s

conviction. People v. McKenzie, No. 80131 (Mich. Ct. App.

Sept. 19, 1985).’

Petitioner then filed an application for leave to appeal in the

Michigan Supreme Court, presenting the claims enumerated

above as one, three and four. Petitioner also arguably raised an

ineffective assistance of counsel claim. His counsel included

? Petitioner’s appellate counsel also made a one-sentence

reference to an ineffective assistance of counsel claim:

“Appellant was denied effective assistance of counsel when his

attorney failed to offer the hospital records as business

records.” Petitioner’s brief at p. 18. However, the Michigan

Court of Appeals held that this claim was abandoned:

“(Because defendant has not presented authority or rationale

for his one sentence ineffective assistance of counsel argument,

we deem it abandoned.” People v. McKenzie, slip op. at 9.

25a

the same sentence referred to by the Michigan Court of

Appeals as being insufficient to raise such a claim and added a

one-sentence supporting argument, citing Michigan case law.

The Michigan Supreme Court denied leave to appeal. People v.

McKenzie, No. 77352 (Mich. March 26, 1986).

Petitioner next filed a habeas corpus petition in this court. The

case was assigned to United States District Judge Avern Cohn.

Petitioner presented three claims for relief: (I) that the trial

court erred in admitting the victim’s hearsay statement as an

“excited utterance”; (2) that the trial court improperly admitted

photographs of the victim; and (3) that Petitioner was denied

the right to present a defense and to confront witnesses because

the Michigan Rules of Evidence were followed during his trial.

The petition was denied on January 29, 1987. McKenzie v.

Foltz, No. 86-74475 (E.D. Mich. Jan. 29, 1987) (Cohn, J.).

In 1990, Petitioner filed a second petition for writ of habeas

corpus in the Untied States District Court for the Western

District of Michigan. That petition was dismissed pursuant to

the “abuse of the writ” doctrine. McKenzie v. Haskell, No. 90-

CV-300 (W.D. Mich). Jan. 27, 1992) (Bell, J.). Petitioner filed

an application for a certificate of probable cause to appeal the

* Thus, in her brief in support of Petitioner’s application for

leave to appeal to the Michigan Supreme Court, Petitioner’s

counsel’s argument of ineffective assistance of trial counsel, in

its totality, was as follows:

Alternatively, Appellant was denied effective assistance

of counsel when his attorney failed to offer the hospital

records as business records. An attorney with ordinary

skill and training would have done so. People v. Garcia,

398 Mich. 250 (1978).

-Petitioner’s brief at p. 13.

26a

district court’s order, which was denied. He then sought a —

rehearing on the denial of his application for a certificate of

probable cause, which was also denied. McKenzie v. Haskell,

Nos. 92-1283/92-1459 (6th Cir. June 12, 1992).

Thereafter, Petitioner returned to the state trial court and filed a

pro se motion for relief from judgment or, in the alternative,

for a Ginther* hearing, presenting the following claims:

I. Defendant was deprived of his state and federal

constitutional rights and his conviction should be

vacated where the prosecution failed to prove his

guilt beyond a reasonable doubt and the only

evidence submitted against him was an erroneously

admitted third party hearsay statement.

II. | Defendant was deprived of his state and federal

constitutional rights to effective assistance of trial and

appellate counsel, and at a minimum, should be

granted a Ginther hearing where:

A. Trial counsel failed to investigate key evidence

or to request the production of the nurses who

were present in the hospital room with the

victim when the alleged statement was made.

B. Appellate counsel failed to raise the herein

claims on his appeal of right.

Ill. | Defendant should be resentenced where the trial court

exceeded his recommended guidelines, and in

addition, erroneously sentenced him as a murderer,

* People v. Ginther, 390 Mich. 436, 443 (1973) [requiring a

convicted person who is claiming ineffective assistance of

counsel based on facts not of record to present those facts at

the trial court level in the form of a motion for new trial].

27a

when he was charged and convicted of assault with

intent to commit murder.

The trial court denied Petitioner’s motion for relief from

judgment. People v. McKenzie, No. 84-1886 (Detroit

Recorder’s Court Jan. 18, 1995). With respect to Petitioner’s

claims of ineffective assistance of counsel, the trial court held

that Petitioner did not show “good cause” as to why he

abandoned this argument on appeal. The trial court failed to

address Petitioner’s claim of ineffective assistance of appellate

counsel as cause for this “abandonment.” Although denying his

motion, the trial court did appoint Petitioner counsel for

purposes of appealing its decision.

Petitioner, through appointed counsel, filed a delayed

application for leave to appeal the trial court’s denial of his

motion for relief fromjudgment in the Michigan Court of

Appeals, presenting the following claims: (1) defendant should

be resentenced where the trial court exceeded the guidelines

range; (2) appellate counsel was ineffective in failing to argue

that Petitioner’s life sentence was “shocking to the

conscience”; and (3) insufficient evidence was presented to

convict Petitioner where the only evidence against him was an _

erroneously admitted third party hearsay statement. The

Michigan Court of Appeals denied leave to appeal. People v.

McKenzie, No. 191695 (Mich. Ct. App. June 10, 1996).

Petitioner filed a pro se delayed application for leave to appeal

in the Michigan Supreme Court, presenting the same claims

presented to the Michigan Court of Appeals, which was also

denied. People v. McKenzie, No. 106965 (Mich. March 28,

1997).

Petitioner then filed a motion in the United States Sixth Circuit

Court of Appeals for an order authorizing the district court to

consider a successive petition on the grounds that: (I) his

conviction is not supported by sufficient evidence; and (2) he

28a

received ineffective assistance from his trial and appellate

counsel. The Sixth Circuit Court of Appeals held:

[T]he requirements contained in 28 U.S.C. §

2244 do not apply to this case, because applying

these requirements would have an

impermissible retroactive effect on McKenzie’s

conduct that predates the passage of the

[AEDPAII . . . which enacted the current

version of § 2244.... Although McKenzie has

filed two prior petitions, which may have

rendered his proposed petition a successive or

abusive petition, we conclude that McKenzie

has facially met the gateway standard for

permitting review of his claims in order to

prevent a fundamental miscarriage of justice.

See Schlup v. Delo, 513 U.S. 298, 316-17

(1995). Thus, he is entitled to review of the

merits of his two asserted claims.

Accordingly, the motion seeking permission to

file a successive § 2254 habeas corpus petition

is hereby denied as unnecessary, and this case is

hereby transferred, pursuant to 28 U.S.C. §

1631, to the United States District Court for the

Westerr District of Michigan for further

proceedings, which may well include an

evidentiary hearing to examine both claims, but

especially the merits of McKenzie’s claim of

ineffective assistance of trial and appellate

counsel.

In re: McKenzie, No. 98-0157 (6th Cir. May 11, 1999). The

United States District Court for the Western District of

Michigan subsequently transferred the case to this Court.

29a

Respondent filed a motion to dismiss the petition on

September 21, 1999. On March 20, 2000, this Court issued an

Order denying Respondent’s motion to dismiss, granting

Petitioner’s motion for appointment of counsel, and referring

the case to the undersigned for a report and recommendation.

An evidentiary hearing was conducted on December 5, 2000,

during which. Petitioner presented a single witness, trial

counsel Jeffrey Edison.

IV. Analysis

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996,

Pub.L. No. 104-132, 110 Stat. 1214 (‘AEDPA”’) altered the

standard of review federal courts must apply when reviewing

applications for a writ of habeas corpus. The AEDPA applies

to all habeas petitions filed after the effective date of the act,

April 24, 1996. Because petitioner’s application was filed after

April 24, 1996, the provisions of the AEDPA, including the

amended standard of review, apply to this case.

As amended, 28 U.S.C. § 2254(d) imposes the following

standard of review that a federal court must utilize when

reviewing applications for a writ of habeas corpus:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings unless

the adjudication of the claim —

(1) resulted in a decision that was contrary

to, or involved an unreasonable

30a

application of, clearly established

Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the

facts in light of the evidence presented in

the State court proceedings.

28 U.S.C. §2254(d). Therefore, federal courts are bound by a

state court’s adjudication of a petitioner’s claims unless the

state court’s decision was contrary to or involved an

unreasonable application of clearly established federal law.

Franklin v. Francis, 144 F.3d 429 (6th Cir. 1998). Additionally,

this Court must presume the correctness of state court factual

determinations. 28 U.S.C. § 2254(e)(1)°; see also Cremeans v.

Chapleau, 62 F.3d 167, 169 (6th Cir. 1995) (“We give

complete deference to state court findings unless they are

clearly erroneous”).

The United States Supreme Court has explained the proper

application of the “contrary to” clause as follows:

A state-court decision will certainly be contrary

to (the Supreme Court’s] clearly established

precedent if the state court applies a rule that

contradicts the governing law set forth in our

cases....

> 28 U.S.C. § 2254(e)(1) provides, in pertinent part:

In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a

determination of a factual issue made by a State

court shall be presumed to be correct.

3la

A state-court decision will also be contrary to

this Court’s clearly established precedent if the

state court confronts a set of facts that are

materially indistinguishable from a decision of

this Court and nevertheless arrives at a result

different from [the Court’s] precedent.

Williams v. Taylor, 120 5. Ct. 1495, 1519-20 (2000).

With respect to the “unreasonable application” clause of

§ 2254(d)(1), the United States Supreme Court held that a

federal court should analyze a claim for habeas corpus relief

under the “unreasonable application” clause when “‘a state-

court decision unreasonably applies the law of this Court to the

facts of a prisoner’s case.” Id. at 1521. The Court defined

“unreasonable application” as follows:

[A] federal habeas court making the

“unreasonable application” inquiry should ask

whether the state court’s application of clearly

established federal law was objectively

unreasonable...

[A]n unreasonable application of federal law is

different from an incorrect application of federal

law. ... Under § 2254(d)(1)’s “unreasonable

application” clause, then, a federal habeas court

may not issue the writ simply because that court

concludes in its independent judgment that the

relevant state-court decision applied clearly

established federal law erroneously or

incorrectly. Rather, that application must also be

unreasonable.

Id. at 1521-22.

32a

With this standard in mind, I will proceed to the merits of the

petition for a writ of habeas corpus.

B. Sufficiency of the Evidence

Petitioner’s first claim is that the evidence presented at trial

was insufficient to support a conviction of assault with intent to

murder.

Petitioner presented this claim to the state court for the first

time in his 1994 motion for relief from judgment filed in the

trial court pursuant to M.C.R. 6.500.° In denying the motion

for relief from judgment, the trial court failed to explicitly

address Petitioner’s sufficiency of the evidence claim. See

People v. McKenzie, No. 84-1886 (Detroit Recorder’s Court

Jan. 18, 1995). Petitioner also presented this claim in his

applications for leave to appeal to the Michigan Court of

Appeals and Michigan Supreme Court, neither of which

addressed the claim. People v. McKenzie, No. 191695 (Mich.

Ct. App. June 10, 1996); People v. McKenzie, No. 106965

(Mich. March 28, 1997).

Where a state court fails to address the merits of a claim, a

federal court, on habeas review, must conduct an independent

° Petitioner stated the claim as follows:

Defendant was deprived of his state and federal

constitutional rights and his conviction should

be vacated where the prosecution failed to prove

his guilt beyond a reasonable doubt and the only

evidence submitted against him was an

erroneously admitted third party hearsay

statement.

Petitioner’s Motion for Relief from Judgment, p. 3.

33a

review of the state court’s decision. Harris v. Stovall, 212 F.3d

940, 943 (6th Cir. 2000). This independent review requires the

federal court to “review the record and applicable law to

determine whether the state court decision is contrary to

federal law, unreasonably applies clearly established law, or is

based on an unreasonable determination of the facts in light of

the evidence presented.” Id. However, the independent review

“is not a full, de novo review of the claims, but remains

deferential because the court cannot grant relief unless the state

court’s result is not in keeping with the strictures of the

AEDPA.” Id. In this case, the last state court to issue a

reasoned opinion on Petitioner’s claims, the trial court, failed

to address Petitioner’s claim of insufficient evidence. The

Michigan Court of Appeals and Michigan Supreme Court both

denied Petitioner leave to appeal in standard, one-sentence

orders lacking any reasoning. Therefore, this Court must

conduct an independent review of Petitioner’s claim that there

was insufficient evidence to convict him of assault with intent

to murder. See Harris, 212 F.3d at 943.

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme

Court established that the standard of review for a sufficiency

of the evidence challenge must focus on whether “after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id.

at 319 (emphasis in original). A federal court may not upset a

jury’s verdict simply because the evidence does not “rule out

every hypothesis except that of guilt beyond a reasonable

doubt.” Id. at 326.

Petitioner’s insufficiency of the evidence claim goes to the

issue of identity; that is, whether there existed sufficient

evidence to establish, beyond a reasonable doubt, that

Petitioner was the perpetrator of the crime. At trial, the

prosecution presented evidence that Quattura identified

Petitioner as the person who assaulted her and left her in a

34a

vacant building. In addition to Quattura’s statement to her

grandmother, testimony admitted at trial showed that Petitioner

was with Quattura on the night she was assaulted. Kim Carter

testified that Petitioner told her he was going to sleep on the

couch with Quattura. Petitioner was the first person to report

Quattura missing. Thus, based upon Quattura’s statement to

her grandmother that the man she called “daddy” had assaulted

her and the additional circumstantial evidence presented by the

prosecution to show opportunity, I conclude that sufficient

evidence was presented such that a juror could have reasonably

concluded that Petitioner was guilty of assault with intent to

murder.

As part of his argument that insufficient evidence was admitted

at trial to establish his guilt, Petitioner argues that the trial

court erroneously admitted Quattura’s “See, grandma, what my

daddy did to me,” statement while excluding her later “Will

did it” statement, thereby violating his rights under the

Confrontation Clause. In his Supplemental Brief in support of

his habeas corpus petition, Petitioner states that this

Confrontation Clause claim is not presented as a separate,

independent issue, but as support for his insufficient evidence

and ineffective assistance of counsel claims. He further

contends that, although this issue was presented in his first

habeas corpus petition, the Court never addressed it.

Petitioner’s claim that the district court did not address this

claim is directly contradicted by the record. In denying

Petitioner’s first habeas corpus petition, Judge Avern Cohn

held, in pertinent part:

The [third] habeas claim is that Petitioner was

denied the right to present a defense and to

confront witnesses because the Michigan Rules

of Evidence were followed during trial. Three

evidentiary rulings by the trial court are cited as

resulting in constitutional violations: [admission

35a

of the statement,”’See, grandma, what my daddy

did to me”; admission of the nurse’s notation

that Quattura said “Donna” did this; and the trial

court’s exclusion of the statement “Will did

2".

The Sixth Amendment grants criminal

defendants the right of confrontation, including

the opportunity to test credibility of witnesses

through cross-examination. Davis v. Alaska,

415 U.S. 308, 315-16 (1974). Petitioner fails to

allege how he was denied confrontation....

The only possible “Will” involved was Wilbert

Carter, Quattura’s nine-year old cousin who

lived in her household. He testified and was

subject to cross-examination. The “Will”

notation was excluded under the state law

hearsay rule....

Petitioner has failed to demonstrate how these

three evidentiary rulings either denied him a

fundamentally fair trial or a specific.

constitutional right. . .. This Court does not find

that the alleged trial court errors rise to a

constitutional magnitude.

McKenzie, slip op. at 2-6.

Thus, the issue of whether Petitioner’s rights under the

Confrontation Clause were violated by the trial court’s

evidentiary rulings was previously presented to and decided by

Judge Cohn.

36a

In allowing Petitioner to file a successive petition, the Sixth

Circuit limited this Court’s review to two claims: sufficiency

of the evidence and ineffective assistance of trial and appellate

counsel. In re: McKenzie, slip op. at 1. Petitioner did not

receive permission to present, for a second time, his

Confrontation Clause claim. I conclude that Petitioner cannot

raise an alleged Confrontation Clause violation as support for

his ineffective assistance of counsel or sufficiency of the

evidence claims when this Court previously held that his

Confrontation Clause claim was meritless. Accordingly, this

Court should find that Petitioner is not entitled to habeas

corpus relief with respect to this claim.

C. Ineffective Assistance of Trial Counsel

Petitioner next claims that he is entitled to habeas corpus relief

because he received constitutionally ineffective assistance of

trial counsel. Specifically, Petitioner claims: (i) that his

attorney was ineffective in failing to proffer an out-of-court

statement by Quattura Sutton as impeachment evidence rather

than as an excited utterance; and (ii) that his attorney failed to

properly investigate and cross-examine witnesses.

As an initial matter, I note that although the last state court to

address Petitioner’s ineffective assistance of counsel claim, the

trial court, held that the claim was barred from review by a

state procedural rule, this claim is not barred from review in

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g

37a

this Court by procedural default.’ The doctrine of procedural

default provides:

In all cases in which a state prisoner has

defaulted his federal claims in state court

pursuant to an independent and adequate state

procedural rule, federal habeas review of the

claims is barred unless the prisoner can

demonstrate cause for the default, and actual

prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to

consider the claims will result in a fundamental

miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

In its decision permitting Petitioner to file a successive habeas

corpus petition, the Court of Appeals for the Sixth Circuit held

that this Court should address the merits of Petitioner’s

ineffective assistance of counsel claims “to prevent a

fundamental miscarriage ofjustice.” People v. McKenzie, slip

” The last state court to address Petitioner’s ineffective

assistance of counsel claim, the trial court held, in pertinent

part:

The second issue defendant raises is ineffective

assistance of counsel. However, defendant

previously raised this issue on appeal, the Court

of Appeals deemed it abandoned because he did

not present any authority or rationale for this

argument. Defendant has not shown “good

cause” as to why he abandoned this argument on

appeal.

People v. McKenzie, No. 84-1886 (Detroit Recorder’s Court

Jan. 18; 1995). :

38a

op. at 2. Accordingly, pursuant to the Court of Appeals Order

and the United States Supreme Court’s decision in Coleman,

501 U.S. at 750, Petitioner’s ineffective assistance of counsel

claims are not barred from review by procedural default.

As discussed earlier, where a state court fails to address the

merits of a claim, a federal court, on habeas review, must

conduct an independent review of the state court’s decision.

Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000). In

Strickland v. Washington, 466 U.S. 668 (1984), the Supreme

Court established a two-pronged test for determining whether a

petitioner has received ineffective assistance of counsel. First,

a petitioner must prove that counsel’s performance was

deficient, which “requires a showing that counsel made errors

so serious that counsel was not functioning as the ‘counsel’

guaranteed by the Sixth Amendment.” Id. at 687. Second, a

petitioner must show that counsel’s deficient performance

prejudiced petitioner. A petitioner may establish prejudice by

“showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial.” Id.

The Supreme Court emphasized that, when considering an

ineffective assistance of counsel claim, the reviewing court

should afford counsel a great deal of deference:

Judicial scrutiny of counsel’s performance must

~ be highly deferential. It is all too tempting for a

defendant to second-guess counsel’s assistance

after conviction or adverse sentence, and it is all

too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to

conclude that a particular act or omission of

counsel was unreasonable. . . . A fair assessment

of attorney performance requires that every

effort be made to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate

39a

the conduct from counsel’s perspective at the

time. Because of the difficulties inherent in

making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls

within the wide range of reasonable professional

assistance; that is, the defendant must overcome

the presumption that, under the circumstances,

the challenged action might be considered sound

trial strategy.

Id. at 689 (internal citations omitted).

The Court further explained that, to establish deficient

performance, a petitioner must identify acts that were “outside

the wide range of professionally competent assistance.” Id. To

satisfy the prejudice prong, a petitioner must show that “there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

The Sixth Circuit, applying the Strickland standard, has held

that a reviewing court therefore must focus on whether

counsel’s alleged errors “have undermined the reliability of

and confidence in the result.” McQueen v. Scroggy, 99 F.3d

1302, 1311 (6th Cir. 1996), cert. denied 520 U.S. 1257 (1997).

Petitioner claims that trial counsel Jeffrey Edison was

ineffective for failing to proffer Quattura’s out-of-court

statement that “Will did it” as impeachment evidence rather

than as an excited utterance. The record, however, belies that

argument.

Mr. Edison argued that the “Will did it” statement should be

admitted under the present sense impression or excited

utterance exceptions to the hearsay rules or as impeachment

evidence. The trial court rejected admission under all of these

theories. Thus, Petitioner’s claim that Mr. Edison failed to

40a

offer this statement as impeachment evidence is meritless.

Moreover, to the extent that Petitioner’s claim is based upon

the skill with which Mr. Edison articulated the basis for

admitting this statement for impeachment purposes, such a

claim is also meritless. When a federal court on habeas review

considers whether an attorney was constitutionally ineffective,

the test is not whether an attorney could have articulated an

argument more effectively or more eloquently. The test is that

set forth in Strickland: whether the attorney’s assistance was

reasonable considering all of the circumstances. 466 U.S. at

688. Mr. Edison argued that the out-of-court statement should

be admitted, inter alia, for impeachment purposes. The trial

court judge recognized and rejected the proffer on this basis.

Thus, while Mr. Edison perhaps could have more effectively

articulated his argument, his representation ensured that the

trial was a “reliable adversarial testing process.” Id.

Petitioner also argues that Mr. Edison was ineffective because

he failed to adequately Investigate and cross-examine

witnesses. In particular, Petitioner claims that Mr. Edison

failed to investigate the identity of the “Will” referred to by

Quattura Sutton. Petitioner argues that his attorney and the trial

court judge operated under the misapprehension that the only

“Will” having any connection to Quattura was her nine-year-

old cousin Wilbert, when, according to Petitioner, Johnnie

Williams, who spent the night of May 7, 1984 with Kim

Carter, was also known as “Will.” Petitioner argues that if

Mr. Edison had effectively investigated the case, he would

have learned that Kim Carter referred to Johnnie Williams as

“Will” in two separate police reports and elicited that

testimony from her on cross-examination.

However, Petitioner’s argument is specious in light of the trial

court’s evidentiary ruling excluding Quattura’s statement that

“Will did it.” Absent admission of that statement, any evidence

identifying someone named “Will” would have been

meaningless to the jury and would not have exonerated

4la

Petitioner. Thus, even assuming that counsel’s failure to

investigate the identity of “Will” was unreasonable, Petitioner

has failed to show any resulting prejudice.

Accordingly, this Court should deny habeas corpus relief with

respect to this claim.

D. Ineffective Assistance of Appellate Counsel

Finally, Petitioner claims that he is entitled to a writ of habeas

corpus because he received constitutionally ineffective

assistance of appellate counsel. Petitioner argues that his

appellate counsel was ineffective for failing to raise his claims

of sufficiency of the evidence and ineffective assistance of trial

counsel on direct appeal. Petitioner has failed to show that

appellate counsel was ineffective. To satisfy the Strickland test,

Petitioner must establish both that counsel’s conduct was

unreasonable and that Petitioner was prejudiced by counsel’s

conduct. I have already concluded that Petitioner’s sufficiency

of the evidence and ineffective assistance of trial counsel

claims lack merit. Therefore, I conclude that appellate.

counsel’s failure to raise meritless claims was neither

unreasonable nor prejudicial. Accordingly, the Court should

deny habeas corpus relief with respect to this claim.

V. Conclusion

For the reasons stated above, I find that Petitioner has not

established that he is entitled to habeas corpus relief.

Accordingly, I respectfully recommend that the petition for a

writ of habeas corpus be DENIED.

Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure

and 28 U.S.C. 636(b)(1), the parties are hereby notified that

within ten days after being served with a copy of this

recommendation they may serve and file specific, written

objections to the proposed findings and recommendations.

42a

Further, either party may respond to another party’s objections

within ten days after being served with a copy thereof. The

parties are further informed that failure timely to file objections

may constitute a waiver of any further right of appeal to the

United States Court of Appeals. United States v. Walters, 638

F.2d 947 (6th Cir. 1981).

In accordance with the provisions of Rule 6(b) of the Federal

Rules of Civil Procedure, the court, in its discretion, may

enlarge the period of time in which to file objections to this

report.

S/S

MARC L. GOLDMAN

UNITED STATES MAGISTRATE JUDGE

DATE:__03/29/01

PR pL. Pa elie ROEM ED 2 AX

43a

98-0157

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

In re: GERALD MCKENZIE,

Movant.

ORDER

Before: MERRITT, NORRIS, and GILMAN, Circuit Judges.

Gerald McKenzie, a pro se Michigan state prisoner, moves the -

court pursuant to 23 U.S.C.A. § 2244(b)(3)(A) (West 1998) for

an order authorizing the district court to consider a successive

habeas corpus petition to be filed under 2S U.S.C. § 2254.

McKenzie seeks to challenge his March 1984 jury conviction

for an unwitnessed assault with intent to commit murder, for

which he is serving a life sentence, on the grounds that: 1) his

conviction is not supported by sufficient evidence; and 2) he

received ineffective assistance from his trial and appellate

counsel.

Upon review, we conclude that the requirements contained in

2? U.S.C. § 2244 do not apply to this case, because applying

these requirements would have an impermissible retroactive

effect on McKenzie’s conduct that pre-dates the passage of the

Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.

No. 104-132, 110 Stat. 1214 (1996), which enacted the current

version of § 2244. See Landgraf v. USI Film Prods., 511 U.S.

244, 275 (1994), In re Green, 144 F.3d 384, 336 (6th Cir.

1998) (per curiam); /n re Heckerd, 123 F.3d 922, 934 (6th Cir.

1997). Although McKenzie has filed two prior petitions,

which may have rendered his proposed petition a successive or

abusive petition, we conclude that McKenzie has facially. met

the gateway standard for permitting review of his claims in

44a

order to prevent a fundamental miscarriage of justice. See

Schlup v. Delo, 513 U.S. 298, 316-17 (1995). Thus, he is

entitled to review of the merits of his two asserted claims.

Accordingly, the motion seeking permission to file a

successive § 2254 habeas corpus petition is hereby denied as

unnecessary and this case is hereby transferred, pursuant to 28

U.S.C. § 1631, to the United States District Court for the

Western District of Michigan for further proceedings which

may well include an evidentiary hearing to examine both

claims, but especially the merits of McKenzie’s claim of

ineffective assistance of trial and appellate counsel. See

O’Hara v. Wigginton, 24 F.3d 323, 328 (6th Cir. 1994) (failure

to investigate, especially as to key evidence, must be supported

by a reasoned and deliberate determination that investigation

was not warranted); Sims v. Livesay, 970 F.2d 1575, 1530-81

(6th Cir. 1992) (counsel has “a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary ’,” quoting

Strickland v. Washington, 466 U.S. 668, 691 (1984) (emphasis

added in Sims)); Workman v.Tate, 957 F.2d 1339, 1345-46 (6th

Cir. 1992) (reasonable investigation was lacking and hence

counsel’s performance was deficient).

ENTERED BY ORDER OF THE COURT

S/S

Clerk

45a

454 Mich. 884; 562 N.W.2d 203;

1997 Mich. LEXIS 649, *

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-

Appellee,

v.

GERALD McKENZIE, Defendant-Appellant.

SC: 106965

SUPREME COURT OF MICHIGAN

454 Mich. 884; 562 N.W.2d 203; 1997 Mich. LEXIS 649

March 28, 1997, Decided

PRIOR HISTORY: [*1] LC: 84-188601. COA: 191695.

OPINION:

On order of the Court, the delayed application for leave to

appeal is considered, and it is DENIED, because the defendant

has failed to meet the burden of establishing entitlement to

relief under MCR 6.508(D).

46a

Court of Appeals, State of Michigan

ORDER

People v Gerald McKenzie Peter D. O’Connell

Presiding Judge

Docket # 191695

Michael J. Kelly

L.C. # 84-188601 Kathleen Jansen

Judges

The Court orders that the delayed application for leave to

appeal is DENIED for failure of the defendant to meet the

burden of establishing entitlement to relief under MCR

6.508(D).

A true copy entered and certified by Ella Williams, Chief

Clerk, on

JUN _10 1996 S/S

47a

STATE OF MICHIGAN

IN THE RECORDER’S COURT FOR THE CITY OF

DETROIT

THE PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff,

Recorder’s Court

V Case No. 84-1886

GERALD MCKENZIE, Hon. Karen Fort Hood

Defendant.

OPINION

A jury convicted defendant of Assault with Intent to Commit

Murder, MCL 750.83; MSA 28.278 on June 26, 1984. He was

sentenced to life imprisonment. The Court of Appeals

affirmed his conviction in a per curiam opinion dated

September 19, 1985. Our Supreme Court subsequently denied

leave to appeal on March 26, 1986. In 1986 and 1990,

defendant filed petitions for Writs of Habeas Corpus in federal

court which were summarily dismissed. Defendant now files

this Motion for Relief from Judgment raising three issues.

The first issue, regarding the admission of a third party

statement in evidence, was previously raised on appeal and

decided against the defendant by the Court of Appeals.

Therefore, this Court will deny relief on this issue pursuant to

MCR 6.508(D)(2).

The second issue defendant raises is ineffective assistance of

counsel. However, defendant previously raised this issue on

appeal, but the Court of Appeals deemed it abandoned because

he did not present any authority or rationale for this argument.

Defendant has not shown “good cause” as to why he

48a

abandoned argument on appeal. MCR 6.508(D)(3). Thus, this

Court will deny relief on this issue.

Defendant finally argues that he should be resentenced because

the trial court allegedly exceeded the recommended guidelines.

Again, defendant has not shown “good cause” as to why he

failed to raise this issue on appeal. MCR 6.508(D)(3).

Accordingly, relief on this issue is also denied.

Dated: JAN 18 1995 S/S

Recorder’s Court Judge

ORDER

At a session of said court held in the Frank Murphy Hall of

Justice on__ JAN 18 1995

Present: Honorable HON. KAREN FORT HOOD

Recorder’s Court Judge

In the above-entitled cause, for the reasons set forth in the

foregoing Opinion;

IT IS HEREBY ORDERED that Defendant’s Motion for

Relief from Judgment is DENIED.

S/S

Recorder’s Court Judge

49a

Nos. 92-1283/92-1459

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

MAY 14 1992

GERALD MCKENSIE, Leonard Green, Clerk

Petitioner-Appellant,

V. ORDER

DAVIS HASKELL, Warden,

Respondent-Appellee.

Gerald McKensie appeals the district court’s dismissal of

his petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. The receipt of the certified record has been

construed as an application for a certificate of probable cause

pursuant to Fed. R. App. P. 22(b).

McKensie was convicted of assault with intent to murder

and sentenced to life imprisonment. In his petition for writ of

habeas corpus, McKensie alleges numerous claims. However,

the district court concluded that McKensie’s present habeas

petition constituted abuse of the writ and dismissed the

petition.

Upon review the court agrees that McKensie’s present

habeas petition constitutes abuse of the writ. McCleskey v.

Zanz, 111 S. Ct. 1454, 1457 (1991).

Accordingly, the application for a certificate of probable

cause is hereby DENIED.

50a

ENTERED BY ORDER OF THE COURT

/S/

Clerk

S5la

Nos. 92-1283/92-1459

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

JUN 19 1992

GERALD MCKENSIE, Leonard Green, Clerk

Petitioner-Appellant,

v. ORDER

DAVIS HASKELL, Warden,

Respondent-Appellee.

BEFORE: MILBURN and SILER, Circuit Judges; and

CELEBREZZE, Senior Circuit Judge

Petitioner Gerald McKensie seeks rehearing of this courts

order entered May 14, 1992, which denied McKensie’s

application for a certificate of probable cause to appeal an

order denying habeas corpus relief under 28 U.S.C. § 2254.

Upon consideration, the court has concluded that it did not act

under any misapprehension of law or of fact in its order

entered May 14, 1992. Fed. R. App. P. 40(a). Accordingly, it

is ordered that the petition for rehearing be DENIED.

ENTERED BY ORDER OF THE COURT

S/S

Clerk

52a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

GERALD MCKENZIE,

Petitioner, Case No. 2:90-CV-300

V: HON. ROBERT HOLMES BELL

DAVID HASKELL,

Respondent.

ORDER DISMISSING PETITION FOR

WRIT OF HABEAS CORPUS

This matter is before the Court on a petition for writ of habeas

corpus. On October 3, 1991, United States Magistrate Judge

Timothy P. Greeley issued a report and recommendation

recommending that the petition for habeas corpus be dismissed

pursuant to the “abuse_of the wnt” doctrine. Petitioner filed

objections to the report and récommendation on October 21,

1991.

This court is required to make a de novo review upon the

record of those portions of the magistrate’s report and

recommendation to which objection has been made.

Fed.R.Gov. § 2254 Cases 8(b) (4).

Upon review of petitioner’s objections the Court finds that the

issues raised have been fully and properly addressed in the

report and recommendation. Accordingly, the Court hereby

ORDERS that:

53a

1. The October 3, 1991, Report and Recommendation of the

Magistrate Judge is APPROVED and ADOPTED as the

opinion of the Court; and

2. Petitioner’s petition for habeas corpus is DISMISSED.

Dated: January 27, 1992

S/S

HONORABLE ROBERT HOLMES BELL

UNITED STATES DISTRICT JUDGE

54a

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-

Appellee,

as

GERALD McKENZIE, Defendant-Appellant.

No. 86893

Supreme Court of Michigan

434 Mich. 878; 1990 Mich. LEXIS 470

February 26, 1990, Entered

JUDGES: [*1]

Dorothy Comstock Riley, Chief Justice, Charles L. Levin,

James H. Brickley, Michael F. Cavanagh, Patricia J. Boyle,

Dennis W. Archer, Robert P. Griffin, Associate Justices

OPINION: Order

On order of the Court, the delayed application for leave to

appeal is considered, and it is DENIED because we are not

persuaded that the questions presented should be reviewed by

this Court.

5Sa

Court of Appeals, State of Michigan

ORDER

People v Gerald McKenzie Barbara B. MacKenzie

Presiding Judge

Docket # 116499 Elizabeth A. Weaver

Richard Allen Griffin

L.C. # 84 01886 Judges

The Court orders that the delayed application for leave to

appeal is DENIED for lack of merit in the grounds presented.

S/S

A true copy entered and certified by Norbert G. Jaworski,

Chief Clerk, on

June 30, 1989 S/S

Chief Clerk

56a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD MCKENZIE,

Petitioner,

V. CIVIL ACTION NO. 86CV-74475-DT

HONORABLE AVERN COHN

DALE FOLTZ,

Respondent.

MEMORANDUM OPINION AND ORDER

Petitioner, Gerald McKenzie, presently incarcerated at the

State Prison of Sourthern Michigan in Jackson, has filed this

pro se petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. He was convicted in June 1984 by a Detroit Recorder’s

Court jury of assault with intent to murder, Mich. Comp. Laws

§ 750.83. He was sentenced to a term of life imprisonment.

On appeal as of right, the .Michigan Court of Appeals affirmed

the conviction in a per curiam opinion dated September 19,

1985. Docket No. 60131. In a standard order dated March 26,

1986, the Michigan Supreme Court denied leave to appeal.

Docket No. 77352. |

The habeas petition raises three issues. This Court finds that

state court remedies concerning these issues have been

sufficiently exhausted. See Picard v. Connor, 404 U.S. 270

(1971); Anderson v. Harless, 459 U.S. 4 (1982).

57a

I.

Two of the habeas issues must be dismissed because they fail

to rise to the level of a federal constitutional claim. Petitioner

contends that the trial court erred because it (1) improperly

admitted the victim’s hearsay statement regarding the identity

of the perpetrator as falling within the “excited utterance”

exception to the Michigan hearsay rule, Michigan Rule of

Evidence 803, and (2) improperly admitted photographs four

and five depicting the victim’s appearance after emergency

treatment as relevent to demonstrating the degree of intent by

the perpetrator.

Both these claims are presented to this Court, as they were to

both state appellate courts, as state law issues. The only

violation asserted by Petitioner is that the trial court misapplied

state evidentiary rules. It is not alleged that either “error’”’ by

the trial court violated Petitioner’s federal constitutional

rights.. Therefore, because both of these claims are based

solely on state law grounds, they are not cognizable in habeas.

Pulley v. Harris, 465 U.S. 27 (1984); Long v. Smith, 663 F.2d

18 (6th Cir. 1981), cert. denied, 455 U.S. 1024 (1982).

II.

The remaining habeas claim is that Petitioner was denied the

right to present a defense and to confront witnesses because the

Michigan Rules of Evidence were followed during trial. Three

evidentiary rulings by the trial cqurt are cited as resulting in

constitutional violations:

A. The trial court allowed the hearsay statement of the

victim regarding the identity of the perpetrator into

evidence based on the excited utterance exception to

the state hearsay rule.

58a

B. The trial court allowed a stipulation between counsel

regarding a nurse’s notation of a statement by the

victim.

i. The trial court refused to admit evidence of a statement

by the victim two days after the assault which would

have exculpated the Petitioner.

The evidence presented at trial can be summarized as follows.

The victim, three-year old Quattura Sutton, was found in an

abandoned building in Detroit on the morning of March 7,

1984. She had been beaten and was suffering from extreme

hypothermia due to the subzero temperatures. Quattura had

been living with her mother (Elena “Kim” Carter), the

Petitioner (who was Kim’s boyfriend), and several other

relatives. Although. Petitioner was not Quattura’s natural

father, she had always called him “daddy”. The night before

the assault occurred, Kim had left the home late in the evening

and spent the night with another man, Johnnie Williams.

Approximately 17 hours after Quattura was found, her mother,

Kim, and her grandmother, Juanita Horton, came to see her at

the hospital. They were the first family members to see the

child after the assault. The grandmother approached Quattura

and said, “how is grandma’s baby?” Quattura said, pointing to

her bruised eyes, “see, grandma, what my daddy did to me.”

Although defense counsel objected, the statement was admitted

as an excited utterance. The trial court determined it admissible

because this was the first time Quattura had seen her family

after the assault and she had not yet had time to contrive or

misrepresent. :

On Quattura’s medical records, a nurse had noted that she

thought she heard Quattura say “Donna” instead of “Daddy.”

Both counsel stipulated to the notation in the medical records

and the jury was so informed. (T. III, pg. 20—21).

59a

Two or three days after Quattura’s admittance to the hospital,

the medical records indicate that when a nurse asked Quattura

who injured her, she replied, “Will did it.” The trial court

denied admission of this second notation on the basis that by

the time it was allegedly made, Quattura had time to formulate

a story or to concoct an explanation. (T. III, pg. 15). The nurse

who made either record could not be determined and the

medical records were not offered into evidence. Quattura was

found incompetent to testify and appeared before the Jury only

as demonstrative evidence.

The Sixth Amendment grants criminal defendants the right of

confrontation, including the opportunity to test credibility of

witnesses through cross-examination. Davis v. Alaska, 415

U.S. 306, 315-316 (1974) . Petitioner fails to allege how he

was denied confrontation. Defense counsel stipulated to oral

admission of the “Donna” notation. Even if the nurse who had

made the notes had been located, there is no indication that her

testimony would have differed from what appeared in the

medical records.

The only possible “Will” involved was Wilbert Carter,

Quattura’s nine-year old cousin who lived in her household. He

testified and was subject to cross-examination. The “Will”

notation was excluded under the state law hearsay rule.

Likewise, Quattura’s unsolicited statement to her grandmother

was admitted pursuant to hearsay exception. Alleged errors of

State law evidentiary rules are not cognizable in habeas. Pulley

v. Harris, 465 U.S. 37 (1984). Only if such alleged errors

amount to a due process violation are they open to challenge

on collateral review. Boffard v. Marshall, 751 F.2d 845, 857

(6th Cir. 1985), cert. denied, 106 S.Ct. 194 (1985). See also

Bell v. Arn, 536 F.2d 123 (6th Cir. 1976) (no due process

violation where trial court allowed in a statement from the

victim as a dying declaration.) - *

60a

The admission of all out of court statements is not barred by

the Sixth Amendment confrontation clause. United States v.

Licavoli, 725 F.2d 1040 (6th Cir. 1984), cert. denied, 104 S.Ct.

3535 (1984). When the declarant is not available for cross-

examination, it must be shown that the hearsay statements bear

adequate “indicia of reliablility.” Id., at 1049. Reliability can

be inferred if the testimony falls within an established hearsay

exception. Ohio v. Roberts, 448 U.S. 56, 66 (1980).

In the instant matter, Quattura’s testimony fell within a state.

hearsay exception. There is no indication that the hearsay

statements were unreliable.

Petitioner has failed to demonstrate iiow these three evidentiary

rulings either denied him a fundementally fair trial or a specific

federal constitutional right. See Manning v.Rose, 507 F.2d 889

(6th Cir. 1974); Burks v. Egler, 512 F.2d 221 (6th Cir. 1975),

cert. denied, 423 U.S. 973 (1975). T’as Court does not find that

the alleged trial court errors rise tc a constitutional magnitude.

Accordingly,

IT IS ORDERED that the petition for writ of habeas corpus is

DENIED.

IT IS FURTHER ORDERED that Petitioner’s request for

appointment of counsel is also DENIED.

IT IS ALSO FURTHER ORDERED that Petitioner’s motion

to dismiss Respondents answer is also DENIED.

S/S

AVERN COHN

UNITED STATES DISTRICT JUDGE

DATED: JAN 2 9 1987

6la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GERALD MCKENZIE,

Petitioner,

v. CIVIL ACTION NO. 86CV-74475-DT

HONORABLE AVERN COHN

DALE FOLTZ,

Respondent.

JUDGMENT

The above~entitled matter having come before the Court on a

Petition for a Writ of Habeas Corpus, Honorable Avern Cohn,

United States District Judge, presiding and in accordance with

the Memorandum Opinion and Order entered on JAN 29 1987,

IT IS ORDERED AND ADJUDGED that the Petition for Writ

of Habeas Corpus be, and the same hereby is DENIED.

Dated at Detroit, Michigan, this 29 day of January, 1987.

APPROVED:

S/S

AVERN COHN

UNITED STATES DISTRICT JUDGE

62a

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff—Appellee,

Vv SC: 77352

COA: 80131

GERALD MCKENZIE, LC: 84-01886

Defendant-Appellant.

On order of the Court, the application for leave to appeal is

considered, and it is DENIED, because we are not persuaded

that the questions presented should be reviewed by this Court.

Archer, J., would grant leave to appeal.

CHIEF JUSTICE G. MENNEN WILLIAMS

By. S/S

Clerk, Supreme Court

Dated: March 26, 1986

63a

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff—Appellee,

Vv Docket #80131

GERALD MCKENZIE,

Defendant-Appellant.

BEFORE: R.J. Danhof,C.J., and R.B. Burns and V.J. Brennan,

JJ.

PER CURIAM

Defendant Gerald McKenzie was convicted by a Detroit

Recorder’s Court Jury in June, 1984, of assault with intent to

commit murder, MCL 750.83, MSA 28.273. He was sentenced

to life imprisonment and appeals by right.

On the morning of March 7, 1984, three year old Quattura

Sutton was found by Thomas Pryor, a construction worker, in

an abandoned apartment building near Lawton and

Northwestern in Detroit. Pryor testified that it was 7 degrees

outside and the temperature inside the vacant building whose

doors and windows were broken was at least as cold. Quattura

was dressed only in a light T-shirt and overalls, without socks,

shoes or a coat. A small puddle of blood was located by

Quattura’s head, and the frozen blood from her head had stuck

her face to the floor.

Pryor had been told by an “unknown” woman about the child.

After observing Quattura’s mother in the courtroom, Pryor

testified that the “unknown” woman was not the mother. Pryor

64a

explained that he had waived down a police car, after finding

the child, and two officers took the child to Ford Hospital’s

emergency room. Officer Fintor testified that Quattura was

unconscious, severely beaten, and appeared, to him, to have no

Vital signs.

Emergency room pediatrician David Treloar, M.D., testified

that Quattura was in critical condition when brought to the

hospital at 8:08 a.m.; her life was in Jeopardy. She was

suffering severe hypothermia and her body temperature was

below 80 degrees F. Treloar observed an extensive bruise

around the child’s left eye, one above the left eye and one in

the back of her head. Quattura’s right foot was swollen due to

frostbite. There was a small amount of bleeding in back of her

head and a slight amount of blood above her eye. Treloar

opined that it would have required considerable force (as by an

adult) to cause Quattura’s head injuries. The injuries, he

explained, were very new and suggestive of abuse rather than

falling or stumbling on the child’s part. Treloar also testified

that any of the blows would have caused the child to become

unconscious immediately, but the child cou!d have regained

consciousness later. Treloar did not think that the injuries were

SO severe as to endanger her life apart from the hypothermia

which was life threatening. He indicated that it took two days

for the child’s physical condition to dramatically improve.

Treloar identified exhibits 1-5 as photos taken of Quattura at

the hospital. He further testified that she was abnormally shy

with the hospital staff for several weeks and psychologically,

she was in an “acutely deranged abnormal condition.”

Quattura Sutton lived with her mother, Elena Carter (also

known as, and hereafter referred to as ‘““Kim”’) and her mother’s

boyfriend, defendant Gerald McKenzie, at 2745 Lothrop in the

home of Patricia Carter, Kim’s aunt. Also residing at the home

besides Patricia Carter were Patricia’s children, Wilbert (age 9)

and Tonya (age 5). Kim’s parents, Aaron and Juanita Horton,

lived three houses away at 2742 Lothrop.

65a

Kim testified that defendant was her boyfriend and they had

been living together for a couple of years since Quattura was

about one year old. Although defendant was not Quattura’s

natural father, she called him “daddy.” Kim had never

observed defendant punish Quattura in any way.

Kim said that she had come home at about 7:00 p.m. on

March 6, 1984, and defendant came in about a half-hour later

_ At about 9:00 or 10:00 p.m., Darrel Reed, defendant’s friend, —

came over and he and defendant shot drugs, getting high. Kim

testified that she and defendant then walked Reed to a nearby

bus stop and they returned home. At about 1:00 a.m., Kim told

defendant that she was going out to borrow some money so she

could buy some drugs. In actuality, Kim planned to meet

another man, Johnnie Williams whom she had known for about

three months. Earlier that day, Williams had been at her house

getting high with defendant, Darrel Reed, and Kim. She had

introduced Johnnie to defendant at that time. Williams and

Kim planned to meet later that night. :

When Kim left the house at about 1:00 a.m., she planned to

spend the night with Williams, but she told defendant she was

going to borrow $10 from a friend two blocks away and that

she would be gone 10 or 15 minutes. She testified that twice

before she had stayed out all night and on these occasions, she

had disagreements with defendant about her all-night activities.

Kim also testified that she had wanted to end her relationship

with defendant, but she had not told him.

When Kim left the house, defendant told her not to stay out all

night. Defendant was not upset, however, and they had not

argued that evening. Defendant gave her a coat that she could

pawn to get money.

Kim testified that, when she left the house, her aunt, Patricia,

was upstairs and her young cousins were asleep on a dining

; 66a

room couch. Quattura was asleep on the living room couch.

Defendant told Kim he would lay on the couch with Quattura,

he would lock the door, and she should ring the bell when she

returned. Kim testified that she had never seen defendant hit

Quattura.

After Kim left the house, she went to the house where Johnnie

Williams stayed, which was about three blocks from her house.

Johnnie went out and bought her some uppers, which she shot.

She spent the night with Williams and went with him

downtown in the morning where he had to appear in traffic

court.

Late that morning, she called her mother and learned that

Quattura was in the hospital. Kim first went to the police

station and then to the hospital with her mother to see Quattura.

She and her mother entered Quattura’s room at the same time.

When she saw how Quattura looked, she started screaming and

was led out of the room.

Kim denied touching Quattura on March 6 or 7, 1984.

Johnnie Williams testified that he had been at Kim’s house

around dusk on March 6, 1984. He stayed about a half-hour,

snorting drugs. Defendant and Darrel Reed came to the house

while he was there. Later that night, around 12:00 or 12:30

a.m., Kim came to his house to spend the night with him. She

went with his the next morning at about 10:00 a.m. to traffic

court.

Patricia Carter testified that on the evening in question, she

went to sleep around midnight. Defendant and Quattura were

in the house at the time, but Kim was not. Quattura was

sleeping on the living room couch and Patricia’s two children

were sleeping on the dining room couch. Patricia Carter

testified that she did not wake up until the next morning at

which time the defendant asked her (through her bedroom

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door) whether she had seen Kim and Quattura. When Carter

left her bedroom, defendant was sitting on the bed in his and

Kim’s bedroom mi king a “crying like” noise. Carter did not

see any tears. She asked defendant if Quattura was in the house

and he replied that she was not. Carter found Quattura’s boots

and coat downstairs, but she did not find the child. Defendant

left the house at about 6:30 or 6:45 a.m.

Carter said Kim, the defendant and Quattura had lived with her

since the previous October. She had never seen defendant beat,

whip, threaten, or hurt Quattura. She testified that she had,

however, seen defendant and Kim have disagreements about

Kim staying out late.

Wilbert Carter, age 9, testified that he went to sleep at about

8:00 p.m. on the night in question. His mother, Patricia, was

upstairs in her bedroom when he went to sleep and defendant

and Kim were not in the house at the time. Tonya and Quattura

were playing in the living room. Wilbert heard defendan come

in the door in the morning, go to Patricia’s room and ask

questions and then go to his room. Defendant looked like he

was crying. He then left the house again. On cross-

examination, Wilbert testified that defendant and his mother

went through the house looking for Quattura.

Aaron Horton, Kim’s father, testified that at about 6:33 a.m.,

while he was outside warming up his car to go to work (three

houses away from Patricia Carter’s house), defendant walked

over and asked if Horton had seen Kim. Defendant told Horton

that Kim had taken the baby out without shoes on. Aaron

Horton said defendant appeared to be a little excited, but not

upset. He testified that defendant and Kim had been living

together for two or three years and defendant, Kim and

Quattura had interacted as a family. Horton had never seen

defendant beat or whip Quattura.

68a

Juanita Horton testified that when defendant came over to her

house that morning (around 6:30 a.m.) he said that Kim had

taken the coatless and shoeless baby out of the house.

Juanita Horton went witn Kim to the hospital that night to see

Quattura. They went into her room together. She thought that

they were the first family members to see Quattura. Quattura

looked like she was drowsy and suffering from a lot of distress.

Juanita Horton approached Quattura and said, “how is

grandma’s baby?” Quattura then spoke to her. Defense counsel

objected on hearsay grounds. The trial court admitted the

testimony under the excited utterance exception to the hearsay

rule. Juanita Horton then said that Quattura, pointing to her

eyes, said, “see, grandma, what my daddy did to me.”’ Juanita

Horton testified that Quattura referred to defendant as “‘daddy.’

_ Quattura had volunteered the statement on her own, and she

also made the statement more than once. Quattura put out her

arms toward her mother like she wanted to be picked up.

Juanita Horton, like her husband, testified that she had never

known defendant to whip or beat Quattura. Juanita Horton was

aware of a conflict between defendant and Kim.

Two statements made by defendant to the police were admitted

at trial. Officer Marlyss Landers testified that he took a

statement from defendant on March 7, 1984, at 1:06 p.m.

Defendant told him that at about 1:00 or 1:30 a.m., Kim said

she was going to a friend’s house to try to get some money.

She took a coat of defendant’s with her. Quattura was asleep

on the couch when Kim left. Defendant woke up at around

6:00 or 7:00 a.m., and he asked Patricia Carter if Kim got

home, but Carter said she had not seen Kim. Defendant had no

idea how Quattura left the home. Defendant also said that he

had not left the house during the night after Kim had left at

1:30 am.

69a

Detroit Police Sgt. Bernard Brantley testified that defendant

also made a statement to him later on March 8, 1984, at 12:30

a.m. In that statement, defendant also said that after Kim left,

Quattura was asleep on the couch, and he went upstairs to bed.

He woke up Patricia Carter the next morning and asked if Kim

had been home. He said he and Patricia had walked around the

house and found that Quattura was not there but her coat and

shoes were. He said Kim had stayed out all night twice before.

He was not upset on the night in question about the fact that

Kim was out ail night but he was worried about her; that was

why he woke up Kim’s aunt. He said the last time he used

drugs was Tuesday evening when Kim injected hi... with

“mixed jive.” Defendant said he had never hit Quattura, and he

did not take her out of the house that night. Defendant said

Kim told him to leave the door unlocked when she left.

Defendant said he did not lay down with Quattura after Kim

left, rather he went upstairs.

Quattura was brought into the courtroom and introduced to the

jury. The defense rested without introducing any evidence or

calling any witnesses.

Defendant raises several issues on appeal, none of which merit

reversal. In light of People v Hardin, 421 Mich 296; ___

NW2d___ (1984), we have reviewed the supplemental

instruction which was given to the jury and find that the

instruction was neither coercive nor unfair to the defendant.

The instruction as given by the-irial court did not substantially

depart from the ABA 5.4 standard instruction.

There was also no abuse of discretion in the objected to

admission of two photographs depicting Quattura while she

was hooked up to a heart monitor and an intravenous unit. We

have examined the photographs and it is our opinion that

exhibits 4 and 5 were helpful in shedding light on the issue of

defendant’s intent. The defendant requested an instruction for

the lesser offense of assault with the intent to do great bodily

70a

harm less than murder. MCL 750.84; MSA 28.279. The

charged offense, assault with intent to murder, is a specific

intent crime requiring the intent to kill. See Maher v People, 10

Mich 212 (1802) and Roberts v People, 19 Mich 401 (1870).

The lesser offense of assault with intent to do great bodily

harm is also a specific intent crime. See People v Mack, 112

Mich App 605, 611; 317 NW2d 190 (1981). The jury was

faced with determining what, if any, criminal intent defendant

possessed at the time of the crime.

The pediatrician had testified that the hypothermia created the

life threatening situation rather than the injuries suffered by the

child. The jury, however, did not have to accept the doctor’s

opinion concerning the gravity of the injuries. The doctor also

testified that any of the blows io Quattura’s head would have

rendered her immediately unconscious, but he also opined that

consciousness could have been regained sometime later.

In light of the medical testimony, the photographs were

instructive because they provided a clear depiction of the

child’s actual physical condition. The jury would have been

able to separate the advanced state of hypothermia from the

actual injuries inflicted on the child to determine if the

condition and/or injuries suffered at the time of the assault was

indicative of assault with intent to kill or assault with intent to

do great bodily harm less than murder. The photographs were

not gruesome, nor were they admitted to excite passion or

prejudice.

In People v Duby, 120 Mich App 2141; 327 NW2D 455

(1982), this Court summarized the law concerning admissions

of photographs:

“Admission of photographic evidence rests within the

sound discretion of the trial court. People v Eddington,

387 Mich 552, 562; 198 NW2d 297 (1982). On review,

the Court must determine whether the photographs

Tla

were substantially necessary or instructive to show

material facts or conditions or whether they were

merely calculated to excite passion and prejudice.

People Falkner, 389 Mich 682, 685; 209 NW2d 193

(1973); People v Rocha, 110 Mich App 1, 13; 312

NW2d 657 (1981). The substantially necessary test is

nearly the same as asking-whether the evidence is

helpful in throwing light on any material point in issue.

People v Browning, 106 Mich App 516, 523; 308

NW2d 2614 (1981). Photographs which are pertinent,

relevant, competent, or material on any issue in the case

are not rendered inadmissible merely because they

show the details of a gruesome or shocking crime.

People v Fuzi 12, 116 Mich App 277; 323 NW2d 358

(1982). Assuming the materiality of photographs, the

trial court must still weigh the potential prejudicial

effect against probative value. People v Wallach, 110

Mich App 37, 614, fn 6; 312 NW2d 387 (1981 ).” 120

Mich App at 256-257.

Defendant’s final argument is that the trial court’s rulings on

hearsay statements were abuses of discretion. Again, we

disagree. Admission of Quattura’s statement that her “daddy”

did it, was admissible as an excited utterance under MRE

803(2).

The “daddy” statement arose from the startling occasion,

concerned it, and was made before Quattura had time to

contrive or misrepresent. Quattura had been brought to the

hospital at approximately 8:00 a.m. in critical condition. Her

physical condition did not dramatically improve for two days.

When Quattura’s grandmother and mother came to the

intensive care unit at about 1:00 a.m. that night, they were the

first family members the young child had seen. There is no

doubt that the statement to Quattura’s grandmother arose solely

from the traumatic and frightening occasion. Defendant’s

argument on appeal is that the statement could not be admitted

72a

properly as an excited utterance because it was made 17 hours

after Quattura was found and was in response to a question. In

our opinion Quattura’s statement certainly was not in response

to the grandmother’s greeting, “how is grandma’s baby.”

Likewise, the time gap does not compel the conclusion that the

statement was not an excited utterance. See In the Matter of

Meeboer, 134 Mich App 24 (19814) which is partially

instructive.

In the present case, Quattura told the first family member with

whom she spoke. Under the circumstances, she did not have

time to contrive or misrepresent.

The trial court also did not abuse its discretion by refusing to

admit the statement supposedly made two days later,

purportedly noted in the hospital records, that “Will did it.” In

view of the time gap involved, and the fact that Quattura

presumably had the opportunity to talk with numerous persons

before that statement was made, the trial court could have

reasonably concluded that at that point she had had time to

“contrive or misrepresent.” See People v McConnell, 420 Mich

852; 358 NW2d 895 (1984), rev’g 122 Mich App 208 (1982).

Defendant argues that his constitutional rights were denied

~hen the trial court refused to admit the “Will did it” statement.

The only authority cited by defendant for his argument,

Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed

2d 297 (1973), is inapposite. It also is not at all clear from the

record that the statement was even made. The only indication

in the lower court record that such a statement was made is an

indication by counsel that such a notation existed. The nurse

who made the record was not produced and the medical

records were not offered.

Finally, because defendant has not presented authority or

rationale for his one sentence ineffective assistance of counsel

argument, we deem it abandoned.

73a

Affirmed. We retain no further jurisdiction.

/s/ Robert J. Danhof

/s/ Robert B. Burns

/s/ Vincent J. Brennan

74a

2003 U.S. App. LEXIS 12561, *

GERALD MCKENZIE, Petitioner-Appellant,

Vv.

DAVID SMITH, WARDEN, Respondent-Appellee.

No. 01-1824

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

2003 U.S. App. LEXIS 12561

June 19,.2003, Filed

NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS

CITATION TO SPECIFIC SITUATIONS. PLEASE SEE

RULE 28(g) BEFORE CITING IN A PROCEEDING IN A

COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER PARTIES AND THE

COURT. THIS NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS REPRODUCED.

PRIOR HISTORY: McKenzie v. Smith, 326 F.3d 721, 2003

U.S. App. LEXIS 7611 (6th Cir.) (6th Cir. Mich., 2003)

DISPOSITION: Petition denied.

JUDGES: BEFORE: SILER, DAUGHTREY, and GILMAN,

Circuit Judges.

OPINION: ORDER

75a

The court having received a petition for rehearing en banc, and

the petition having been circulated not only to the original

panel members but also to all other active judges of this court,

and no judge of this court having requested a vote on the

suggestion for rehearing en banc, the petition for rehearing has

been referred to the original panel.

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied

76a

Constitutional Provisions and Statutes Involved

28 U.S.C. § 2241. Power to grant writ

(a) Writs of habeas corpus may be granted by the Supreme

Court, any justice thereof, the district courts and any circuit

judge within their respective jurisdictions. The order of a

circuit judge shall be entered in the records of the district court

of the district wherein the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any circuit

judge may decline to entertain an application for a writ of

habeas corpus and may transfer the application for hearing and

determination to the district court having jurisdiction to

entertain it.

(c) The writ of habeas corpus shall not extend to a prisoner

unless-- .

(1) He is in custody under or by color of the authority of the

United States or is committed for trial before some court

thereof; or

(2) He is in custody for an act done or omitted in pursuance

of an Act of Congress, or an order, process, judgment or decree

of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws

or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled

therein is in custody for an act done or omitted under any

alleged right, title, authority, privilege, protection, or

exemption claimed under the commission, order or sanction of

any foreign state, or under color thereof, the validity and effect

of which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for

trial.

(d) Where an application for a writ of habeas corpus is made

by a person in custody under the judgment and sentence of a

77a

State court of a State which contains two or more Federal

judicial districts, the application may be filed in the district

court for the district wherein such person is in custody or in the

district court for the district within which the State court was

held which convicted and sentenced him and each of such

district courts shall have concurrent jurisdiction to entertain the

application. The district court for the district wherein such an

application is filed in the exercise of its discretion and in

furtherance of justice may transfer the application to the other

district court for hearing and determination.

28 U.S.C. § 2244. Finality of determination

(a) No circuit or district judge shall be required to entertain an

application for a writ of habeas corpus to inquire into the

detention of a person pursuant to a judgment of a court of the

United States if it appears that the legality of such detention

has been determined by a judge or court of the United States on

a prior application for a writ of habeas corpus, except as

provided in section 2255.

(b) (1) A claim presented in a second or successive habeas

corpus application under section 2254 that was presented in a

prior application shall be dismissed.

(2) A claim presented in a second or successive habeas

corpus application under section 2254 that was net presented in

a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule

of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable;

or

(B) (i) the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if proven and viewed

in light of the evidence as a whole, would be sufficient to

78a

establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

(3) (A) Before a second or successive application permitted

by this section is filed in the district court, the applicant shall

move in the appropriate court of appeals for an order

authorizing the district court to consider the application.

(B) A motion in the court of appeals for an order

authorizing the district court to consider a second or successive

application shall be determined by a three-judge panel of the

court of appeals.

(C) The court of appeals may authorize the filing of a

second or successive application only if it determines that the

application makes a prima facie showing that the application

satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the

authorization to file a second or successive application not later

than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of

appeals to file a second or successive application shall not be

appealable and shall not be the subject of a petition for

rehearing or for a wnit of certiorari. :

(4) A district court shall dismiss any claim presented in a

second or successive application that the court of appeals has

authorized to be filed unless the applicant shows that the claim

satisfies the requirements of this section.

(c) In a habeas corpus proceeding brought in behalf of a person

in custody pursuant to the judgment of a State court, a prior

judgment of the Supreme Court of the United States on an

appeal or review by a writ of certiorari at the instance of the

prisoner of the decision of such State court, shall be conclusive

as to all issues of fact or law with respect to an asserted denial

of a Federal right which constitutes ground for discharge in a

habeas corpus proceeding, actually adjudicated by the Supreme

Court therein, unless the applicant for the writ of habeas corpus

shall plead and the court shall find the existence of a material

79a

and controlling fact which did not appear in the record of the

proceeding in the Supreme Court and the court shall further

find that the applicant for the writ of habeas corpus could not

have caused such fact to appear in such record by the exercise

of reasonable diligence.

(d) (1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation period

shall run from the latest of--

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for

State post-conviction or other collateral review with respect to -

the pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

28 U.S.C. § 2254 State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the

judgment of a State court on!y on the ground that he is in

custody in violation of the Constitution or laws or treaties of

80a

the United States.

(b) (1) An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State court

shall not be granted unless it appears that--

(A) the applicant has exhausted the remedies available in

the courts of the State; or

(B) (i) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied

on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the —

exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly

waives the requirement.

(c) An applicant shall not be deemed to have exhausted the

remedies available in the courts of the State, within the

meaning of this section, if he has the right under the law of the

State to raise, by any available procedure, the question

presented.

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the

adjudication of the claim--

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

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

8la

(e) (1) In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment

of a State court, a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by

clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows

that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due diligence;

and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence

adduced in such State court proceeding to support the State

court's determination of a factual issue made therein, the

applicant, if able, shall produce that part of the record pertinent

to a determination of the sufficiency of the evidence to support

such determination. If the applicant, because of indigency or

other reason is unable to produce such part of the record, then

the State shall produce such part of the record and the Federal

court shall direct the State to do so by order directed to an

appropriate State official. If the State cannot provide such

pertinent part of the record, then the court shall determine

under the existing facts and circumstances what weight shall be

given to the State court's factual determination.

(g) A copy of the official records of the State court, duly

82a

certified by the clerk of such court to be a true and correct copy

of a finding, judicial opinion, or other reliable written indicia

showing such a factual determination by the State court shall

be admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the Controlled

Substance Acts [21 USCS § 848], in all proceedings brought

under this section, and any subsequent proceedings on review,

the court may appoint counsel for an applicant who is or

becomes financially unable to afford counsel, except as

provided by a rule promulgated by the Supreme Court pursuant

to statutory authority. Appointment of counsel under this

section shall be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall

not be a ground for relief in a proceeding arising under section

2254.