Burns v. Washington

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE.

         On March 15, 2014, Joshua Quincy Burns was feeding his infant daughter, Naomi, when he received a phone call from his wife. Burns claims that as he put the phone down, Naomi started to fall off his knee and he grabbed her head to prevent her from falling or hitting the coffee table. A day later, Naomi vomited, appeared pale and clammy, and refused a bottle, so her parents took her to the emergency room. While physicians initially believed that the symptoms were caused by a virus, additional tests found subacute blood in her cerebellum along with multilayered retinal hemorrhages in both eyes; which, in combination, led to suspicion of child abuse. (R. 6-22, PageID.2754.) Shortly after, Burns was charged with, and eventually convicted of, second-degree child abuse. The state's case relied heavily on the testimony of child abuse pediatrician Dr. Bethany Mohr, who opined that Naomi's retinal hemorrhaging was the result of abusive head trauma.

         Burns now files a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Burns says trial counsel was constitutionally ineffective for not challenging overly broad testimony by Dr. Mohr regarding her diagnostic level of certainty, and for not properly using an e-mail chain between Dr. Mohr and another doctor to impeach Dr. Mohr.

         The Court has reviewed the petition, the Warden's response, the state-court record, and heard oral argument on April 15, 2019. Primarily because the Michigan Court of Appeals did not unreasonably apply controlling Supreme Court precedent, the Court will deny the habeas petition.

         I.

         On March 15, 2014, Brenda Burns was at a hair appointment and called her husband, Joshua Burns, before leaving to come home. When Brenda returned home, Burns was holding their infant daughter, Naomi, and appeared concerned. (ECF No. 6-11, PageID.1105, 1108, 1110.) Burns told Brenda that he had been burping Naomi during their call and when he went to hang up the phone, Naomi “lurched and began to fall forward and almost hit the coffee table.” Burns “had to reach his hand out to prevent her head from hitting the coffee table.” (ECF No. 6-11, PageID.1111.) Burns told the jury that when Brenda returned home, he was “upset, ” “I said you're not gonna believe what happened[:] Naomi almost-Naomi just fell off my knee and almost hit the coffee table.” (ECF No. 6-13, PageID.1576.)

         The next morning, Naomi had loose stool and projectile vomiting. (ECF No. 6-11, PageID.1129-1130.) She also refused her bottle, appeared pale and clammy, and had a low temperature. Naomi's pediatrician suggested that, if the parents were concerned, they should take Naomi to the emergency room. (ECF No. 6-11, PageID.1138-1139.) Upon examination, a scratch was noted, along with a small bruise by Naomi's eye. Burns recounted the episode from the day before. Naomi was ultimately discharged with a diagnosis of possible gastrointestinal virus. (ECF No. 6-11, PageID.1146.) Later that evening, Naomi had additional vomiting episodes. When her condition did not improve, her parents took her back to the hospital. Naomi was diagnosed, on March 17, with norovirus and discharged later that afternoon. (ECF No. 6-11, PageID.1160-1161.) That night, Naomi had another vomiting episode.

         Naomi's condition did not improve, and she was taken back to C.S. Mott Children's Hospital two more times.

         Several days later, results from an earlier test indicated a possible metabolic issue which prompted ophthalmology to examine Naomi. Dr. Cagri Besirli, a retina specialist, along with another ophthalmologist decided that the findings did not fit any possible metabolic disorders. (R. 6-14, PageID.1785.) In a subsequent examination, Besirli found numerous retinal hemorrhages in both of Naomi's eyes.

         Dr. Besirli saw “several large retinal hemorrhages in the preretinal area, numerous ones in the intraretinal space” that “were too many to count.” (ECF No. 6-14, PageID.1793-1794.) Naomi had similar hemorrhages in both eyes. These findings led to a suspicion that abusive head trauma- sudden acceleration/deceleration of the head-had caused the injuries.

         Dr. Douglas Joseph Quint, a neuroradiologist at the University of Michigan Medical Center, was sent Naomi's imaging to review as part of his role on the child protection team at the University of Michigan. (ECF No. 6-14, PageID.1727-1728.) In reviewing a March 18, 2014, MRI he “saw blood at least several days old, probably two to four days old . . . in the lower part of the brain which had not been described in the initial report.” (ECF No. 6-14, PageID.1732.)

         Dr. Bethany Mohr, a child abuse pediatrician at the University of Michigan, was contacted on March 26 because abuse was suspected. (ECF No. 6-10, PageID.804.) Mohr first examined Naomi on March 27 after having read her medical records. (ECF No. 6-10, PageID.806.) At that time doctors had not yet reached a diagnosis to explain everything that was happening with Naomi. (ECF No. 6-10, PageID.809.) Mohr spoke with Burns and Brenda separately, as is custom when abuse is suspected. (ECF No. 6-10, PageID.811.) She also reviewed the March 18 MRI with Dr. Quint. (ECF No. 6-10, PageID.819, 821.) This review revealed newer blood in addition to older blood, with the newer blood being “three [to] seven or four to seven” days old and the older being possibly dating “back to birth.” (ECF No. 6-10, PageID.823-825.) As of that day, Mohr was “highly suspicious” that the diagnosis was “most likely abusive head trauma” but she wanted to review the MRI that was done that day as well as talk with the ophthalmologist, Dr. Besirli. (ECF No. 6-10, PageID.860.) So Mohr reviewed the MRIs-the one from March 18 and the new one done March 27-with Quint. (ECF No. 6-10, PageID.862-863.) On April 4 Mohr submitted her final report with a final diagnosis of abusive head trauma. (ECF No. 10, PageID.876-879.)

         Burns was subsequently charged with second-degree child abuse.

         At trial, the cause of Naomi's retinal hemorrhaging was the source of significant dispute. Naomi had a difficult birth. Brenda labored for several hours and doctors unsuccessfully tried to aid delivery using a vacuum device. (ECF No. 6-10, PageID.813-814.) Naomi was eventually delivered via C-Section. (ECF No. 6-10, PageID.814.) Naomi also had thrombocytosis-she produced too many platelets. (See ECF No. 6-15, PageID.2035.) Whether the birth trauma and thrombocytosis threw the abusive-head-trauma diagnosis into doubt was the heart of the debate between the testifying experts.

         Quint testified that Naomi's birth trauma could explain the older hematoma they found on the MRI, but not the newer one. (ECF No. 6-14, PageID.1746.) He testified that two-to-seven-day-old blood should not be present in a nine-week-old baby. (ECF No. 6-14, PageID.1760.) He further testified that subdural hematomas he viewed on the first two MRIs done on March 18, 2014 and March 27, 2014 could be consistent with abusive head trauma, adding, “I don't see any other changes to suggest a medical reason for this child having . . . subdural hematomas of different ages.” (ECF No. 6-14, PageID.1750.) When asked what kind of accidental trauma could create subdural hemorrhages like he saw in the cerebellum of Naomi's brain, Quint answered, “High speed motor vehicle accident.” (ECF No. 6-14, PageID.1772.)

         And when Besirli testified at trial, although aware that a vacuum device was used during Naomi's delivery, he nonetheless concluded that Naomi's retinal hemorrhages could not have been from birth. Naomi was about 70 days old, and Besirli testified that “retinal hemorrhages caused by birth trauma typically resolve in the first week to 10 days after birth.” (ECF No. 6-14, PageID.1801.) Besirli further explained that the hemorrhages seen in birth trauma are “located at the posterior pole around the optic nerve and the macula in about 70 percent of the cases-in 90 percent of the cases and only about one-third of the time they extend to pass what we called zone one, which is the retinal periphery.” (ECF No. 6-14, PageID.1801-1802.) So all told, according to Besirli, the extent of Naomi's hemorrhages “were not consistent” with birth-trauma hemorrhages. (ECF No. 6-14, PageID.1802.) Besirli also testified that “typically when [the hemorrhages are] in the different layers that really narrows down the possible causes of what may have caused [them].” (ECF No. 6-14, PageID.1793-1794) And “in [Naomi's] age group the two most common causes of retinal hemorrhages with this distribution would be abusive head trauma or accidental trauma.” (ECF No. 6-14, PageID.1795.) But the accidental trauma is typically “severe accidental trauma. Motor vehicle accident. Falling off several flights of stairs.” (Id.) And the abusive head trauma is typically a “sudden acceleration deceleration of the head.” (Id.) As to the thrombocytosis, Besirli testified that he could not opine on the effect of Naomi's thrombocytosis on retinal hemorrhages, stating that he “[didn't] have any evidence for or against that any platelet count increase can cause retinal hemorrhages.” (ECF No. 6-24, PageID.1810.)

         Dr. Mohr also testified at length during the trial. She explained the basis for her diagnosis of abusive head trauma, including the effects of Naomi's difficult birth and thrombocytosis on that diagnosis. She acknowledged that retinal hemorrhages can have different causes, and that a difficult birth could cause hemorrhages in a child who was just born. (See ECF No. 6-10, PageID.946-947.) She further acknowledged that thrombocytosis could be a “modulating factor” (explained as “[s]omething that can change the appearance or change what's going on”) in retinal hemorrhaging. (ECF No. 6-10, PageID.1034-1035.) She clarified, however, that high platelets or thrombocytosis would not cause retinal hemorrhages, just that retinal hemorrhaging could worsen with a high platelet count. (ECF No. 6-10, PageID.1034.) She testified that “[she did] not feel that Naomi's thrombocytosis would give us multi-layered retinal hemorrhages to the ora serrata. In combination also factoring in all the other things that we have as well.” (ECF No. 6-10, PageID.1047.) So Mohr concluded, based on the facts of the case and Naomi's various test results that the diagnosis for her injuries was abusive head trauma. Mohr told the jury,

[T]he fact that [Naomi] had multi-layered retinal hemorrhages in one eye and three different layers that they go all the way 360. So that's not indicative of some type of minor trauma or some other condition which the majority of those conditions were ruled out. That's very very highly specific for repetitive acceleration deceleration . . . [A]nd you wouldn't even get them from crawling. These are the types of hemorrhages outside of being from abusive head trauma would be from a crush injury. So maybe a huge heavy TV falling on top of a baby or a child they have been seen in those cases or roll over motor vehicle collisions where you have that repetitive acceleration deceleration. But obviously none of those things were part of the history and there were no external signs of trauma so a crush injury those types of things wouldn't make sense either.

(ECF No. 6-10, PageID.866.)

         While Mohr suspected abusive head trauma before the official diagnosis, she testified that she did not reach her final conclusion until after “getting official reports and reviewing all of the studies and specifically the diagnostic testing labs including the bleeding [and] coagulopathy workup to making sure that there wasn't an [underlying] bleeding disorder and also making- getting the final results from the metabolic testing.” (ECF No. 6-10, PageID.877.)

         Burns presented experts of his own to counter Mohr's opinion. As explained by Burns, the defense experts' “testimony presupposed that [shaken baby syndrome/abusive head trauma] was a valid diagnosis but questioned its application in this case.” (ECF No. 7, PageID.3385.) These experts testified that Naomi's birth trauma, thrombocytosis, and the short fall from her father's lap provided the best explanation for her condition.

         Ultimately, Burns was convicted of second-degree child abuse.

         Burns appealed his conviction and it was affirmed. People v. Burns, No. 327179, 2016 WL 6495853 (Mich. Ct. App. Nov. 1, 2016); lv. den. 896 N.W.2d 422 (Mich. 2017).

         Burns seeks habeas corpus relief on two of the claims raised during his direct appeal: that his defense counsel provided ineffective assistance by failing to raise a Daubert challenge to portions of Dr. Mohr's testimony regarding her level of diagnostic certainty that Naomi's retinal hemorrhaging was the result of abusive head trauma and by failing ...