United States District Court, E.D. Michigan, Southern Division
MARK R. SHAYKIN, Petitioner,
KENNETH ROMANOWSKI, Respondent.
AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS ,
DENYING THE MOTION TO PRODUCE RULE 5 MATERIALS , GRANTING
IN PART THE MOTION TO EXPAND THE RECORD , DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO
APPEAL IN FORMA PAUPERIS
J. MICHELSON U.S. DISTRICT JUDGE.
Mark R. Shaykin, a Michigan prisoner, filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. Petitioner is serving a sentence for convictions
related to the attempted kidnapping of his niece. He argues
that his confrontation and due process rights were violated
during trial, and his trial and appellate attorneys rendered
ineffective assistance. Having reviewed the Petition, the
warden's response, and the state-court record, the Court
concludes that the state courts' determination that these
claims were without merit was not unreasonable. Therefore,
the Petition will be denied.
was convicted following a jury trial in Lenawee County
Circuit Court. The jury heard the following evidence.
intended victim, Ashley Clark, is Shaykin's niece by
marriage. She testified that in June 2007, she was living in
the same house with him in Michigan. (R. 9-8, PID 597.) After
the two had a falling out, she moved to Toledo, Ohio to live
with another relative, Nina Rosalis. (Id. at PID
598, 601.) At that point, Clark wanted nothing to do with
Shaykin, but had seen him around Toledo twice since moving
there. (Id. at PID 599.) Still, she never had any
indication that there might be “any attempt to grab
[her] or kill [her] or harm [her.]” (Id. at
PID 598.) In the meantime, the two had a few conversations
regarding money Shaykin had promised Clark, and Shaykin's
concern that Clark may be using drugs. (Id. at PID
friends Joshua Snodderly and Allen Oliver were living in
Toledo, Ohio at the time of the offense. At trial, Snodderly
testified that Oliver had approached him at a skate park,
stating that a man “ha[d] a bit of a job for us to
do.” (R. 9-8, PID 637.) He identified that man as
Shaykin at trial. (Id.) Shaykin had offered a
“surplus” of sleeping pills, marijuana, and
potentially some money to them as payment for the job, which
had yet to be fully explained to them. (R. 9-8, PID 645.)
Snodderly, Oliver, and their friend Leo Sacrant drove with
Shaykin to his apartment in Adrian, Michigan. (R. 9-8, PID
638.) On the way, Shaykin discussed his niece, but
“didn't let the whole plot unfurl until we got to
his apartment.” (Id.) The group thought that
Shaykin was “looney, out of control, ” but they
figured they might “see what we [could] get” of
value out of his apartment. (R. 9-8, PID 639.)
the apartment, Shaykin presented several images on his
computer. He showed the group maps of Clark's house and
her neighborhood, as well as images of Clark that Snodderly
described as “pornographic.” (R. 9-8, PID 640.)
Shaykin explained to the group that he “wanted us to
kidnap her, go in and drag her out the back door and throw
her in his trunk and let him have his way with her.”
(Id.) At that point, the group realized that Shaykin
“was serious” and “started thinking we
wanted out of it but he was our only ride home.” (R.
9-8, PID 641.) Shaykin then presented the group with a knife
he wanted them to use in the crime, stating, “This
represents me. She will know who is coming after her.”
(R. 9-8, PID 642.) Later, Shaykin showed them several items
in his car trunk, including “rope, bandanas, gloves,
rolling pin with duct tape on it.” (R. 9-8 PID 642-43.)
Snodderly recognized several items that had been admitted as
exhibits as items that were in Shaykin's trunk.
(Id.) Later that evening, Shaykin drove the group
back to Toledo, where he fell asleep on Snodderly's
couch. (R. 9-8, PID 646.)
next morning, Shaykin drove the group to the house where
Clark was staying. Shaykin instructed the group, “Go in
there and get her. Tie her up and drag her out the
back.” (R. 9-8, PID 646.) At that point, Snodderly had
the impression that Shaykin was going to do something to harm
Clark and decided that he wanted no part of it.
(Id.) So instead of dragging Clark out of the home,
the group knocked on the door and told the woman who answered
what was happening. (Id. at PID 647.) Shaykin was
under the impression that the group was just staking out the
property. (Id.) That afternoon, the group returned
to the house. At that point, the “lady at the house had
contacted police and . . . got everything set up.”
(Id. at PID 669.) Police arrested Shaykin in his
car, which was parked around the corner from the house.
(Id. at PID 671.)
Smith, a retired police sergeant with the Toledo police
department, was the first officer to come to the house. Smith
got the call around 4:30pm on the day Shaykin was arrested.
The callers stated that they had agreed to kidnap a girl for
someone else, but they did not want to do it and they were
scared. (Id. at PID 617.) Smith went to the scene,
where he found Oliver, Snodderly, and Sancrant. (Id.
at PID 619.) He talked to them for ten to fifteen minutes and
they told him that Shaykin had given them a knife.
(Id. at PID 620.) His impression was that
“these young men felt that they were being hired to get
this young lady away from that house for whatever reason and
take her by force if necessary.” (Id. at PID
624.) Smith recovered from the scene a knife, some cell
phones, a hand-drawn map, and a neckerchief-bandana. Smith
found surgical gloves, a rolling pin with duct tape on it, a
roll of duct tape, show strings, pills, and another bag of
latex gloves in the trunk of Shaykin's car. (Id.
at PID 612.) From the backseat of the car, Smith recovered a
ski cap. (Id.)
was arrested at the scene and Smith, along with Detective
Johnson, interviewed him at the station. (Id. at PID
631.) Shaykin indicated that his “intent” in the
situation was that “he felt that he was being extorted;
that Ms. Clark was trying to extort money from him in a
beating that he had inflicted upon her on Mother's Day
and that if he didn't pay her the money she was going to
go to the police, in a general sense.” (Id. at
PID 630.) He did indicate to Smith, however, that he had not
wanted force to be involved. (Id. at PID 633.)
prosecution intended to call Allen Oliver as its last
witness. He was subpoenaed, but failed to appear.
(Id. at PID 673.) However, Oliver had previously
testified at a preliminary examination, and was subject to
cross-examination by Shaykin's trial counsel
(id. at PID 743), so the prosecutor asked to read
that transcript into the record. (Id. at PID 673.)
Defense counsel did not object, and the trial court granted
the request. (See id.) During the preliminary
hearing, Oliver had testified that he met Shaykin through
mutual friends, and Shaykin asked him to help him “take
care of” a girl who was extorting money from him.
(Id. at PID 678.) Oliver thought that Shaykin was
serious about the offer, and recruited Snodderly and Sancrant
to help. (Id. at 680.) But as Shaykin started
discussing his plan, Oliver concluded “he can't
possibly . . . be serious about this whole thing . . . we
were thinking, well, we will just hang out with him, let him
give us whatever he's going to give us, and then whatever
we get from him, you know, cut him off.” (Id.
at PID 683.) In Shaykin's apartment, Oliver saw missing
persons posters with Clark's picture on them-Shaykin
explained that he had posted the flyers around Toledo and
that was how he found out where Clark was living.
(Id. at 686.) Oliver's impression was that
Shaykin was “completely obsessed” with Clark.
(Id. at PID 693.)
jury convicted Shaykin of the following offenses: conspiracy
to commit unlawful imprisonment, Mich. Comp. Laws
§§ 750.157a, 750.349; two counts of solicitation of
unlawful imprisonment, Mich. Comp. Laws §§
750.157b(3); 750.349, and using a computer to commit
solicitation of unlawful imprisonment, Mich. Comp. Laws
§ 752.797(3)(e). The jury found Shaykin not guilty of
the following charges: conspiracy to commit murder, two
counts of solicitation to commit murder, and using a computer
to commit solicitation to commit murder.
Michigan Court of Appeals affirmed Shaykin's conviction.
People v. Shaykin, No. 295883, 2011 WL 668255 (Mich.
Ct. App. Feb. 22, 2011). The Michigan Supreme Court denied
leave to appeal. People v. Shaykin, 803 N.W.2d 326
(Mich. 2011). The Supreme Court denied certiorari.
Shaykin v. Michigan, 132 S.Ct. 1590 (2012); reh.
den. 132 S.Ct. 1963 (2012). Shaykin subsequently filed a
post-conviction motion for relief from judgment, which was
denied. People v. Shaykin, No. 09-14329-FC (Lenawee
Cty. Cir. Ct. Apr. 24, 2013). The Michigan appellate courts
denied him leave to appeal. People v. Shaykin, No.
317649 (Mich.Ct.App. Dec. 27, 2013); lv. den. 849
N.W.2d 372 (Mich. 2014).
signed his habeas petition on August 26, 2014, and it was
filed with this Court on September 3, 2014. (R. 1.)
Respondent filed a motion for summary judgment on the ground
that petitioner's application for writ of habeas corpus
was barred by the statute of limitations found in 28 U.S.C.
§ 2244(d)(1). The Court denied the motion and ordered an
answer addressing the merits of the petition. Shaykin v.
Romanowski, No. 14-CV-13399, 2016 WL 193381 (E.D. Mich.
Jan. 15, 2016). The answer has been filed, and Shaykin has
filed two additional motions. The matter is now ready for
MOTION TO EXPAND RECORD
asks the Court to expand the record to include several
documents he says show that Oliver and Snodderly were not
credible witnesses. (R. 23.) These documents all appear to be
attached to Shaykin's filings and include state-court
documents regarding those witness' criminal histories.
(R. 23, PID 1531.) “Although state prisoners may
sometimes submit new evidence in federal court, AEDPA's
statutory scheme is designed to strongly discourage them from
doing so.” Cullen v. Pinholster, 563 U.S. 170,
186 (2011). Rule 7(a) of the Rules Governing Habeas Cases, 28
U.S.C. § 2254, provides, “If the petition is not
dismissed, the judge may direct the parties to expand the
record by submitting additional materials relating to the
petition.” Alternatively, Rule 8 of the Rules Governing
Habeas Cases, 28 U.S.C. § 2254, provides, “If the
petition is not dismissed, the judge must review the answer,
any transcripts and records of state-court proceedings, and
any materials submitted under Rule 7 to determine whether an
evidentiary hearing is warranted.”
the state courts have adjudicated a claim on the merits, a
federal court's review in habeas corpus proceedings is
ordinarily limited to the record presented to the state
courts. Cullen v. Pinholster, 563 U.S. 170, 180
(2011); see also Holland v. Jackson, 542 U.S. 649,
652 (2004) (per curiam). That is to say, “review under
§ 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the merits.
Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law.”
Cullen, 563 U.S. 181-82. Where a petitioner's
claim was not adjudicated on the merits, “Section
2254(e)(2) continues to have force” and a court may, in
limited circumstances, “consider new evidence[.]”
where § 2254(e)(2) applies, “If the prisoner has
failed to develop the facts, an evidentiary hearing cannot be
granted unless the prisoner's case meets the other
conditions of § 2254(e)(2).” Williams v.
Taylor, 529 U.S. 420, 430 (2000). Thus, if Shaykin
“failed to develop the factual basis of a claim in
State court proceedings, ” the Court cannot grant his
motion unless 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 “a factual predicate that could
not have been previously discovered through the exercise of
due diligence, ” and “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.” 28 U.S.C. §
2254(e)(2). Although the statute refers explicitly to
“evidentiary hearings, ” several circuit courts
have held that the section applies to motions to expand the
record under Rule 7 as well. Ward v. Hall, 592 F.3d
1144, 1162 (11th Cir. 2010); Cooper-Smith v.
Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005);
Owens v. Frank, 394 F.3d 490, 498-99 (7th Cir.
2005); see Holland v. Jackson, 542 U.S. 649, 653
(2004) (noting that 2254(e)(2)'s restrictions apply
“when a prisoner seeks relief based on new evidence
without an evidentiary hearing”).
Court will grant in part and deny in part Shaykin's
motion to expand the record. Respondent has not opposed
Petitioner's motion. Further, it appears that Petitioner
did raise factual issues regarding counsel's purportedly
deficient cross-examination with the state courts in
connection with his motion for relief from judgment. (R.
9-11.) However, as will be discussed later, it does not
appear that any state court ever ruled on the merits of the
issues presented in that motion. Therefore, deference under
2254(d) will not apply to those claims. Because the materials
Shaykin seeks to introduce are cited in support of those
claims and may help resolve any factual disputes in the case,
and Shaykin raised these issues with the state courts, the
Court will GRANT IN PART and DENY IN PART the motion. The
record will be expanded to include the materials Shaykin has
submitted, but they will only be considered as to the
Court's de novo review of Shaykin's
ineffective assistance of counsel claims.
MOTION FOR ADDITIONAL RULE 5 MATERIALS
also filed a motion asking the Court to compel production of
additional Rule 5 materials. (R. 22.) He says Respondent
failed to include several state-court filings in the
materials that were placed in the record. (Id.) The
habeas corpus rules require respondents to attach the
relevant portions of the transcripts of the state court
proceedings, if available, and the court may also order, on
its own motion, or upon the petitioner's request, that
further portions of the transcripts be furnished. Griffin
v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002); Rules
Governing § 2254 Cases, Rule 5, 28 U.S.C. § 2254.
unnecessary to grant this relief, however, because the
materials sought are already part of the record. First,
Shaykin's brief in support of his motion for relief from
judgment was filed as docket entry 18-1. Second, Shaykin
already attached to his motion to expand the record the
exhibits he uses in support of his claim that trial counsel
was ineffective for failing to impeach Oliver and Snodderly.
The Court has granted that motion.
the motion for additional Rule 5 materials (R. 22) is DENIED.
ANALYSIS OF PETITION
standard of review this Court applies to each of
Petitioner's claims depends on whether the claim was
“adjudicated on the merits in state court[.]” 28
U.S.C. § 2554(d); see also Johnson v. Williams,
___ U.S. ___, 133 S.Ct. 1088, 1097, 185 L.Ed.2d 105 (2013).
state court already decided the claim “on the merits,
” the Antiterrorism and Effective Death Penalty Act of
1996 requires this Court to grant the state court's
decision deference. In particular, AEDPA prohibits this Court
from granting habeas corpus relief for any claim that the
state courts “adjudicated on the merits” unless
the adjudication “(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.” 28 U.S.C. § 2254(d).
“[w]hen a state court does not address a claim on the
merits, . . . ‘AEDPA deference' does not apply and
[this Court] will review the claim de novo.”
Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).
first claims that his constitutional right to confront
witnesses against him was violated when “the
prosecution did not use due diligence or make a good faith
effort to obtain Allen Oliver's presence at trial.”
(R. 1, PID 3.) Petitioner did not raise this precise claim in
his direct appeal; instead, he claimed that his counsel was
ineffective for failing to object to the use of Oliver's
preliminary examination testimony (Respondent does not argue
that this claim is not exhausted (R. 17, PID 1320)). So the
first question before the Court is whether the state
court's ineffective-assistance determination also
addressed the confrontation clause claim, and if so, whether
that determination is entitled to deference. Reviewing the
ineffective assistance of counsel claim for plain error, the
state appellate court's analysis was as follows:
We review a trial court's determination whether to admit
the preliminary examination testimony for an abuse of
discretion. People v Bean, 457 Mich. 677, 684; 580
N.W.2d 390 (1998). A trial court abuses its discretion when
it chooses an outcome that is outside the range of reasonable