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McCowan v. Trierweiler

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

August 8, 2019

CONNER CHANNING MCCOWAN, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION AND ORDER

          Janet T. Neff, United States District Judge.

         This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred to the Magistrate Judge, who issued a Report and Recommendation (R&R) recommending that the petition be denied (ECF No. 9). The matter is presently before the Court on Petitioner's objections to the Report and Recommendation (ECF No. 10). In accordance with 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b)(3), the Court has performed de novo consideration of those portions of the Report and Recommendation to which objections have been made. The Court denies the objections and issues this Opinion and Order. The Court will also issue a Judgment in this § 2254 proceeding. See Gillis v. United States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a separate judgment in habeas proceedings).

         Petitioner raises two grounds for relief in his habeas corpus petition. The Magistrate Judge found both to be without merit. Petitioner's objections do not demonstrate otherwise.

         I. Right to Present a Defense

         Petitioner claims "that the trial court had violated his right to present a defense when it refused to allow Dr. Douglass Watt to testify either that Petitioner likely had suffered a concussion or that concussions typically affect an individual's behavior and memory in a variety of ways" (R&R, ECF No. 9 at PageID.1417). The Magistrate Judge concluded that the determination of this issue by the state court was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent, citing Nevada v. Jackson, 569 U.S. 505 (2013), in which the Supreme Court noted that "'only rarely ha[s] [the Supreme Court] held that the right to present a complete defense was violated by the exclusion of any sort of defense evidence under a state rule of evidence'" (R&R, ECF No. 9 at PageID.1419, quoting Jackson, id at 509). The Magistrate Judge observed that in Jackson, the Court "expressly cautioned courts sitting on habeas review against applying the general right to present a defense to circumstances not previously addressed by the Supreme Court," and overturned the grant of habeas relief because "the circuit court had too broadly construed the general right to present a defense ..." (id. at PageID.1419).

         Petitioner argues that the Magistrate Judge erred in relying on Jackson and "Jackson is easily distinguishable from this case" because "[t]he critical evidence disallowed by the trial court here was not collateral, and did not involve, as in Jackson, the conduct of another witness" (Pet'r Obj., ECF No. 10 at PageID.1437). Petitioner argues that in this case, the "evidentiary ruling was 'so egregious that it result[ed] in a denial of fundamental fairness ... and thus warrant[s] habeas relief" (id. at PageID.1436, quoting Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)). Petitioner asserts that "[t]he exclusion of the expert testimony of Dr. Watt deprived Petitioner of his principal defense because there was no 'equivalent evidence' admitted which would address the objective reasonableness of Petitioner's actions after he suffered the head injury" (id. at PageID.1437). Petitioner asserts that the Magistrate Judge erroneously states "the concussion evidence 'was not related to the central issue of Petitioner having killed Singler or to the defense of self-defense, '" which was supported by Petitioner's own testimony (id. at PageID.1437).

         Petitioner's argument is unavailing. First, Petitioner's characterization of the evidentiary issue and circumstances is not in keeping with the record, which focused on Watt's testimony concerning concussions in particular, even though "it was never established that [Petitioner] was under the effect of a concussion when he stabbed the victim" (see, e.g., R&R, ECF No. 9 at PageID.1419, quoting the opinion of the Michigan Court of Appeals). Moreover, the Magistrate Judge did not rely on the specific factual circumstances in Jackson, but merely noted that in this case, as in Jackson, "Petitioner attempts to expand the right to present a defense to mandate the admission of the expert evidence desired by the defense," rather than to "challenge the application of an arbitrary rule or a rule that lacks a significant basis" (id. at PageID.1420).

         The Magistrate Judge properly applied the governing legal standards for habeas relief and concluded Petitioner had not met those standards:

As the court of appeals observed, the trial court applied a general balancing rule of evidence and determined that the expert witness' testimony was unduly speculative and would introduce undue confusion for the jury. The court of appeals also correctly noted that, while excluding the expert testimony, the trial court admitted Petitioner's own description of his head injury and resulting symptoms, as well as evidence of prior circumstances in which he had been injured and experienced the same symptoms. While this Court might have reached a different conclusion at trial regarding the relevance and significance of the expert's testimony, it is not for this Court to rebalance the evidentiary considerations reached by the trial court, but only to correct constitutional error. The state court's decision was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.

(R&R, ECF No. 9 at PageID.1421).

         Petitioner's various arguments based on other cases involving different circumstances does not change the result or demonstrate error in the Magistrate Judge's analysis under the standards for habeas relief and the circumstances of this case. Petitioner's objection is denied.

         II. Prosecutorial Misconduct

         Petitioner objects to the Magistrate Judge's conclusion that he is not entitled to relief on his second ground raised-that "the prosecutor committed misconduct by improperly commenting on his right to remain silent and his right to request the assistance of counsel," because "the Michigan Court of Appeals' rejection of Petitioner's claim of prosecutorial misconduct was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent" (R&R, ECF No. 9 at PageID.1424, 1433). Petitioner first takes issue with the Magistrate Judge's statement that Petitioner raises concerns about three different types of evidence and substantially conflates those claims (Obj., ECF No. 10 at PageID.1440; R&R, ECF No. 9 at PageID.1424). However, Petitioner raises no discernable objection in this regard, and in fact, continues to conflate the evidence and the authority in arguments that fail to account for critical distinctions.

         The Magistrate Judge conducted a thorough analysis of Petitioner's prosecutorial misconduct claims. The Magistrate Judge provided an explication of the governing law and the Michigan Court of Appeals' consideration of the issues raised by Petitioner. At the outset, the Magistrate Judge observed that, "[i]n general, a defendant's decision to remain silent cannot be used as substantive evidence of guilt," and that "[t]his rule clearly applies to a defendant's silence after the ...


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