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