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Zacharko v. Harry

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

June 28, 2018

SHIRLEE HARRY, Respondent.



         This is a habeas corpus action brought by James Paul Zacharko II under 28 U.S.C. § 2254. Zacharko filed his petition on June 2, 2017. (ECF No. 1.) Zacharko raised five grounds for relief:

1) The trial court improperly limited the testimony of defense expert Dr. Okla.
2) Prosecution expert Dr. Henry was allowed to give improper testimony, defense counsel acted ineffectively.
3) Due process was violated where the verdict form did not identify specific occurrences with which Zacharko was being charged, lack of unanimous verdict, and ineffective assistance of counsel.
4) Ineffective assistance of counsel regarding fingerprint evidence.
5) Improper character evidence presented of Zacharko's drug use and past criminal record, ineffective assistance of counsel.

         On May 10, 2018, Magistrate Judge Ray Kent issued a 40-page Report and Recommendation (R & R) in which he found that the five grounds for relief were meritless and recommended that the Court deny Zacharko's petition and deny Zacharko a certificate of appealability. (ECF No. 10.) On May 22, 2018, Zacharko objected to the R & R's recommendations and the denial of a certificate of appealability. (ECF No. 11.)

         Under Federal Rule of Civil Procedure 72(b), a party “may serve and file specific written objections” to the R & R, and the Court is to consider any proper objection. Local Rule 72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R & R to which a party objects. Under 28 U.S.C. § 636(b), upon receiving objections to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the R & R, Zacharko's objections, and the pertinent portions of the record, the Court concludes that the R & R should be adopted.

         I)Testimony of Defense Expert Dr. Katherine Okla

         Zacharko argues that the magistrate judge overlooked his constitutional arguments- regarding Dr. Okla's excluded testimony as to forensic interviews or suggestibility-and not just state law claims. Zacharko cites, among others, Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923 (1967), which held that an accused “has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process law.” (ECF No. 11 at PageID.2002.) The Supreme Court has “found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 1264 (1998). In regards to compulsory process guaranteed by the Sixth Amendment, the Supreme Court held that a criminal defendant “must at least make some plausible showing of how [the testimony of witnesses] would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446 (1982). “[T]he omission [of evidence] must be evaluated in the context of the entire record.” Id. at 874 n.10, 102 S.Ct. at 3450 n.10 (first alteration in original) (quoting United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 2402 (1976)). A trial court “may not apply a rule of evidence that permits a witness to take the stand but arbitrarily excludes material portions of [her] testimony.” Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711 (1987).

         Zacharko argues that his proposed expert, Dr. Katherine Okla's excluded testimony would have cast the victim's prior statements into doubt by bringing alternative hypotheses before the jury, and Zacharko objects that the prosecution's expert was able to testify regarding the reliability of the victim. The exclusion of portions of Dr. Okla's testimony, according to Zacharko, was not harmless error and was against Zacharko's constitutional rights.

         Zacharko's cited “precedents” do not save his claim. As the R & R noted, Zacharko “has not cited any Supreme Court authority to support his claim that the exclusion of Dr. Okla's testimony regarding forensic interviews or suggestibility rises to the level of a due process violation because it prevented [him] from raising a defense.” (ECF No. 10 at PageID.1973.) Instead, Zacharko cites broader standards that do not demonstrate that his specific, narrow claims are protected by Supreme Court precedent. Zacharko has not shown that the state court's exclusion of the testimony was “arbitrary or disproportionate” under Scheffer and Rock. As the Supreme Court noted in Rock, “the right to present relevant testimony is not without limitation.” Rock, 482 U.S. at 55, 107 S.Ct. at 2711. The R & R also discussed, from the context of the entire record, a number of ways that Zacharko was able to challenge the victim's credibility, how ...

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