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Shaykin v. Romanowski

United States District Court, E.D. Michigan, Southern Division

January 6, 2017

MARK R. SHAYKIN, Petitioner,
v.
KENNETH ROMANOWSKI, Respondent.

         OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS [1], DENYING THE MOTION TO PRODUCE RULE 5 MATERIALS [22], GRANTING IN PART THE MOTION TO EXPAND THE RECORD [23], DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         Petitioner 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.

         I. FACTUAL BACKGROUND

         Petitioner was convicted following a jury trial in Lenawee County Circuit Court. The jury heard the following evidence.

         The 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 601.)

         Long-time 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.)

         Inside 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.)

         The 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.)

         Greg 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.)

         Shaykin 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.)

         The 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.)

         The 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.

         The 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).

         Shaykin 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 review.

         II. MOTION TO EXPAND RECORD

         Shaykin 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.”

         When 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[.]” Id.

         Even 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”).

         The 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.

         III. MOTION FOR ADDITIONAL RULE 5 MATERIALS

         Shaykin 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.

         It is 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.

         Accordingly, the motion for additional Rule 5 materials (R. 22) is DENIED.

         IV. ANALYSIS OF PETITION

         The 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).

         If a 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).

         But “[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).

         A. Confrontation Clause

         Shaykin 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 and ...

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