NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0340n.06
Filed: May 12, 2006
No. 04-1756
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AUBREY WINN, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
PAUL H. RENICO, Warden, )
) OPINION
Respondent-Appellee, )
)
)
)
Before: MOORE, SUTTON, Circuit Judges; and BUNNING, District Judge.*
DAVID L. BUNNING, District Judge. Petitioner Aubrey Winn, appeals a district
court judgment dismissing his petition for a writ of habeas corpus. Petitioner was convicted
in Michigan state court of second degree murder, assault with intent to commit murder, and
possession of a firearm during the commission of a felony. He was sentenced to two
concurrent terms of 24-80 years for the murder and assault convictions, and a consecutive
term of 2 years for the firearm conviction. Winn subsequently pleaded guilty to second
*
The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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degree murder in an unrelated case, and was sentenced to another term of 24-80 years
to run concurrently with the other two.2
In his petition, Winn asserted that his Sixth Amendment rights were violated when
the trial court admitted the preliminary testimony of two witnesses who were not produced
at trial.3 For the reasons that follow, we AFFIRM the district court’s dismissal of Winn’s
petition for a writ of habeas corpus.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
The events giving rise to this case transpired on the evening of January 10, 1998
at a multi-family dwelling located at 2753-2755 West Buena Vista, in Detroit, Michigan. (JA
250). At that time, Petitioner was living at the Buena Vista residence4 along with several
members of his family, including:1) his sister, Akeva Winn, her boyfriend, Darry West,5 and
Ms. Winn’s two children; 2) his cousin, Jacqueline Taylor, her boyfriend, Rory Groves,6 and
Ms. Taylor’s four children; and 3) his brother, Harold Winn,7 and his girlfriend, Valena
2
Winn agreed to plead guilty on the condition that he would be sentenced to a term not
longer than the sentence imposed for his murder and assault convictions.
3
Winn’s notice of appeal was construed as a request for a certificate of appealability, and
raised the same issues that were presented to the district court. Those issues were: 1) whether
the trial court erred in refusing to accept his guilty plea, and 2) whether the trial court erred in
admitting the preliminary testimony of two witnesses who were not produced at trial. Only the
second issue was certified for appeal.
4
The residence was described as a brick, two-family dwelling that had an upper and lower
flat, with separate entrances. (JA 276).
5
Mr. West was also known as “Floss” (JA 431), and “Carlos” (JA 374).
6
Mr. Groves was also known as “Roe.” (JA 431).
7
Mr. Winn was also known as “Jefferson Earl Thomas.” (JA 371).
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Jordan. (JA 287-302).8 Petitioner occupied the basement of the dwelling, which was
partially finished. (JA 303).
Late in the evening on the night of January 10, Petitioner walked upstairs to the
bedroom that Ms. Taylor shared with her boyfriend, Rory Groves. (JA 308). Petitioner had
recently returned home from attempting to run an errand for Ms. Taylor, and was upset that
his efforts were in vain.9 (JA 308-309). When he approached her, Ms. Taylor was on the
telephone; so Petitioner began playing with her dog. (JA 309). The dog, a German
Shepherd-pit bull puppy, became excited and Ms. Taylor (still on her call) left the room to
avoid the noise. (JA 309). Shortly thereafter, Ms. Taylor heard her puppy crying. (JA 310-
11). She put the phone down and returned to her bedroom, to find Petitioner choking the
puppy. (JA 311).
Rory Groves then entered the room and confronted Petitioner. (JA 311). A fight
between the two men ensued. During the scuffle, Petitioner reached into his back pocket,
pulled out a .38 caliber handgun, and shot Mr. Groves several times. (JA 427). Mr. Groves
survived. Petitioner then attempted to flee the residence. (JA 428). According to
Petitioner, when he reached the lower flat, Darry West approached him and attempted to
wrest the gun out of his hand; the gun discharged accidentally, killing Mr. West. (JA 428).
After the shootings, Petitioner sought refuge at the home of his cousin, Brian
8
Another family member, by the name of Mika Jones, also lived at the Buena Vista
residence with her boyfriend, who was only known as “Dray.” (JA 302).
9
Ms. Taylor asked Petitioner to pick up her daughter at a designated place, but her daughter
was not there.
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Henderson. (JA 427). The following afternoon, January 11, 1998, Petitioner surrendered
to the Detroit Police. (JA 434).
Petitioner was interrogated by Sergeant Ernest Wilson of the Homicide Division. (JA
397). During the course of the interrogation, Petitioner admitted to firing the shots that
killed Mr. West and injured Mr. Groves. (JA 427-28). He alleged, however, that the gun
discharged accidentally when Mr. West attempted to pry it from his hand, and he shot Mr.
Groves in self-defense.10 (JA 427-29).
Petitioner was charged with: 1) premeditated murder for the death of Darry West
(count 1), 2) assault with the intent to commit murder for the shooting of Rory Groves
(count 2), and 3) possession of a firearm during the commission/attempted commission of
a felony (count 3). (JA 99).
On July 14, 1999, after a three-day trial, the jury rejected Petitioner’s version of
events and convicted him of second-degree murder, assault with intent to commit murder,
and felony firearm possession. (JA 563). The Michigan Court of Appeals affirmed
Petitioner’s conviction, and on May 5, 2001, the Michigan Supreme Court denied his
petition for further review.
On November 27, 2002, Winn filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 alleging that the trial court erred in: 1) refusing to accept his
guilty plea, and 2) admitting the preliminary examination testimony of two witnesses, where
10
According to Petitioner’s statement to Sgt. Wilson, while he and Mr. Groves were
struggling on the couch, he thought he saw Groves reach toward the side of the couch. (JA 427).
Petitioner knew that Groves owned a .38 caliber gun, and thought he was trying to grab it. (JA
433).
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the prosecution failed to exercise due diligence in attempting to locate them and produce
them at trial, in violation of his Sixth Amendment right of confrontation. (JA 8-10).
The district court denied the petition in its entirety, concluding that: 1) the Michigan
Court of Appeals’ ruling that the trial court properly rejected Petitioner’s guilty plea was
reasonable, and 2) the trial court’s determination that the prosecution made reasonably
diligent efforts to locate the particular witnesses was a reasonable determination of the
facts. (JA 72-86). A certificate of appealability was granted as to Petitioner’s Confrontation
Clause claim.
II. ANALYSIS
In this case, the Court is called upon to determine: 1) whether the “concurrent
sentence” doctrine precludes review of Petitioner’s Confrontation Clause claim, and 2)
whether Petitioner’s Sixth Amendment right of confrontation was violated when the trial
court admitted the preliminary examination testimony of two witnesses who were not
produced at trial.
Petitioner argues that the district court properly analyzed his Confrontation Clause
claim within the framework articulated in Crawford v. Washington, 124 S. Ct. 1354 (2004),
but failed to apply Crawford’s more stringent holding on the issue of “unavailability.”
Alternatively, Petitioner claims that if Crawford is inapplicable, the prosecution nevertheless
failed to exercise “reasonable, timely, and good faith efforts to properly locate key
witnesses,” whose out-of-court statements were then improperly deemed admissible.
As a preliminary matter, Respondent points out several flaws in Petitioner’s
argument, including: 1) Crawford was not the “law of the land” at the time the final state
court rendered its decision and is, therefore, inapplicable to this case, 2) the district court
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did not apply Crawford, and 3) Crawford did not redefine or restrict the test for determining
“unavailability” in Confrontation Clause challenges. Substantively, Respondent argues that
the Court should decline review of Petitioner’s Sixth Amendment claim pursuant to the
“concurrent sentence” doctrine. Alternatively, Respondent maintains that the trial court
properly concluded that the prosecution’s efforts to locate the missing witnesses were
reasonable.
In his reply brief, Petitioner argues that the following facts militate against
application of the “concurrent sentence” doctrine: 1) Respondent failed to raise it at the
district court level, 2) there is a possibility of adverse collateral consequences, and 3) the
Court has been reluctant to invoke the doctrine (which is completely discretionary) to
dispose of substantive challenges to convictions.
A. Standard of Review
The Court reviews a district court's legal conclusions in a habeas proceeding de
novo, and its factual findings for clear error. Vincent v. Seabold, 226 F.3d 681, 684 (6th
Cir. 2000).
Because Winn filed his petition for habeas relief after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110
Stat. 1214 (1996), the provisions of that Act apply to this case.
Pursuant to the AEDPA, a federal court may not grant a writ of habeas corpus for
any claim that was adjudicated on the merits in state court, unless the state court's
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 upon an unreasonable
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determination of the facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d).
A state court decision is "contrary to" Supreme Court precedent "if the state court
arrives at a conclusion opposite to that reached by [the Court] on a question of law," or "if
the state court confronts facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to" the decision of the Court. Williams v.
Taylor, 529 U.S. 362, 405 (2000).
A state court's decision is an "unreasonable application" of clearly established
Supreme Court precedent when the state-court decision correctly identifies the governing
legal standard but applies that standard to the facts of the case before it in an objectively
unreasonable manner. Id. at 409-10.
An unreasonable application of federal law is different from an incorrect application
of federal law, and a federal court may not issue a writ of habeas corpus simply because
the federal court concludes that the state court erroneously applied clearly established
federal law. Id. at 411.
B. “Concurrent Sentence” Doctrine
Initially, the Court must address Respondent’s argument that, because Petitioner
pleaded guilty to murder in an unrelated case and is serving a concurrent sentence that is
equal to the sentences that stem from the murder and assault convictions in this case, the
Court may decline Petitioner’s request for review under the “concurrent sentence” doctrine.
According to this doctrine, which has been accepted by this Court, an appellate court
may decline to hear a substantive challenge to a conviction when the sentence on the
challenged conviction is being served concurrently with an equal or longer sentence on a
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valid conviction. See United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert. denied, 475
U.S. 1142 (1986).
Although the Court has been admittedly hesitant to apply this doctrine, United States
v. Greer, 588 F.2d 1151, 1154 (6th Cir. 1978), cert. denied, 440 U.S. 983 (1979), citing
Hibdon v. United States, 204 F.2d 834, 839 (6th Cir. 1953), it has invoked it when there is
no possibility of adverse "collateral consequences" if the convictions stand. United States
v. Stewart, No. 84-1084, unpub. op., 782 F.2d 1044 (6th Cir. 1985), citing Benton v.
Maryland, 395 U.S. 784 (1969); United States v. Maze, 468 F.2d 529 (6th Cir. 1972).
In the present case, Petitioner contends that, if upheld, his convictions could have
a potentially adverse effect on: 1) his future sentencing options, and 2) administrative
issues related to his confinement (i.e., housing options, security level, and work options).
Petitioner also argues that Respondent effectively waived the issue by not raising it at the
district court level.
Because Respondent raises the “collateral sentence” doctrine for the first time on
appeal, we decline to address it now. See City of Detroit v. Simon, 247 F.3d 619, 630-31
(6th Cir. 2001).
C. Confrontation Clause Violation
Petitioner’s sole argument on appeal is that his Sixth Amendment right of
confrontation was violated when the trial court admitted the preliminary examination
testimony of two witnesses who were not produced at trial. In particular, he claims that the
prosecution did not satisfy its burden of proving that the witnesses were unavailable.
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The test for evaluating Confrontation Clause claims was originally set forth in Ohio
v. Roberts, 448 U.S. 56 (1980). In Roberts, the Supreme Court articulated a two-pronged
test for determining the admissibility of a declarant’s out-of-court statement:
[First], the Confrontation Clause normally requires a showing that he is
unavailable. Even then, his statement is admissible only if it bears adequate
"indicia of reliability." Reliability can be inferred without more in a case where
the evidence falls within a firmly rooted hearsay exception. In other cases,
the evidence must be excluded, at least absent a showing of particularized
guarantees of trustworthiness.
Id. at 66.
The second prong was recently abrogated with respect to testimonial statements by
Crawford v. Washington, 541 U.S. 36 (2004), where the Court held that testimonial out-of-
court statements by witnesses are barred under the Confrontation Clause, unless: 1) the
witnesses are unavailable, and 2) the defendant had a prior opportunity to cross-examine
them, regardless of whether such statements are deemed reliable.11 Crawford, however,
does not apply retroactively. Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005).
In Roberts, the Court explained that “a witness is not ‘unavailable’ for purposes of
... the exception to the confrontation requirement unless the prosecutorial authorities have
made a good-faith effort to obtain his [or her] presence at trial.” 448 U.S. at 74, citing
Barber v. Page, 390 U.S. 719, 724-725 (1968).
The “good faith” test has lent itself to certain general propositions, including:
11
This change in the law was noted by the district court. (JA 81-82). The court also noted,
however, that Crawford did not alter the “unavailability” analysis, which is at issue in this case. (Id.).
Moreover, any change effected by Crawford would not be applicable to the facts of Petitioner’s case
because it occurred nearly two years after the final state court decision was rendered. Baze v.
Parker, 371 F.3d 310, 318 (6th Cir. 2004) (“[R]eview is conducted in light of the law as it existed at
the time of the final state court decision ...”).
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[I]f no possibility of procuring the witness exists (as, for example, the witness'
intervening death), "good faith" demands nothing of the prosecution. But if
there is a possibility, albeit remote, that affirmative measures might produce
the declarant, the obligation of good faith may demand their effectuation.
Roberts, 448 U.S. at 74.
The lengths to which the prosecution must go to produce a witness, however, is a
question of reasonableness. California v. Green, 399 U.S. 149, 189, n.22 (1970)
(concurring opinion, citing Barber v. Page, supra ). The ultimate question is whether the
witness is unavailable despite good-faith efforts undertaken prior to trial to locate and
present that witness. Roberts, 448 U.S. at 74. The prosecution bears the burden of proof
in this regard. Id. at 74-75.
1. Challenged testimony
Petitioner challenges the trial court’s admission of Rory Groves’ and Valena Jordan’s
preliminary examination testimony. The preliminary examination was held on February 12,
1998, (JA 446), and Groves and Jordan testified as follows:
Direct examination (Rory Groves):
Q: Tell us your name, sir.
A: Rory Groves.
Q: Are you also known as Rory Grove Williams, or is that part of your name at
all?
A: No, it’s not.
Q: So, it’s Rory Groves?
A: Yes.
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Q: Thank you. Mr. Groves, are you familiar with the address of 2753-2755
Buena Vista in the City of Detroit?
A: Yes.
Q: Back on January 10, 1998, did you live there?
A: Yes.
Q: Did you live in the upstairs or the down – did you live in the downstairs or the
upstairs?
A: Upstairs.
Q: Were you upstairs on January 10th, 1998, at about 11:00 p.m.?
A: Yes.
Q: Do you own a dog?
A: Yes.
Q: What kind of dog?
A: A Pit Bull mixed with German Shepherd.
Q: Was that dog in the upstairs on that date and time?
A: Yes.
Q: Did something happen between your dog and the defendant in this case,
Aubrey Winn?
A: Yes.
Q: What did you see happen between the defendant and your dog?
A: My dog was barking at him, and he started choking my dog.
Q: When the defendant started choking your dog, how did you react?
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A: I got up and asked him to quit choking my dog, and I grabbed at his shoulder,
and he punched me.
Q: After you did that, what happened?
A: We started tussling. I fell to the floor, and he started strangling me.
Q: Were other people upstairs then, if you know.
A: Yes.
Q: While this was going on, what happens next?
A: After he strangled me, we both got up and I heard four gunshots.
Q: Could you tell me where the gunshots were coming from?
A: Yes.
Q: Where were they coming from?
A: They were coming from Aubrey Winn.
Q: Where was the gun pointed at at that time?
A: It was pointed at me.
Q: How far away from you was he?
A: Two feet.
Q: Did you have any sort of weapon at all?
A: No.
Q: Then where were you struck by the bullets?
A: I was struck in the collar bone, the bottom part of my stomach, and two in my
chest.
Q: When you were shot, did you lose consciousness?
A: No.
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Q: After you were shot those times, what do you remember happening next?
A: I remember my girlfriend coming in and asking me if I was all right. I told her,
“yeah.” After she asked me that, I heard three gunshots downstairs. I came
out, I went outside my room, and Aubrey Winn came back upstairs saying
that Carlos was dead. I was telling Aubrey Winn not to shoot him.
Q: What did the defendant do then?
A: He left. He ran.
Q: Were you taken to the hospital?
A: For a week.
Q: Do you have any permanent effect from those bullet wounds?
A: No. I just be itching where I was shot at.
Q: Thank you.
Cross-examination (Rory Groves):
Q: Mr. Groves, I understand that there was a struggle, right, and you indicated
that at some point Mr. Winn was on top of you and he was choking you?
A: Yes.
Q: What were you doing?
A: Trying to get loose.
Q: How were you trying to get loose?
A: I was grabbing his hands, punching him.
Q: Okay. This was a fight, right?
A: Yes. I was trying to save my life.
Q: While you were fighting, you were made (sic), weren’t you?
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A: Yes, because it didn’t have to happen.
Q: But you were angry, right?
A: Yes.
Q: Were there any words being exchanged between you and Mr. Winn?
A: No.
Q: You didn’t say anything? You didn’t say, “Let me up,” or anything like that?
A: No.
Q: You were just punching and –
A: Trying to get loose. I couldn’t talk. I couldn’t breathe.
Q: So, he let you up, right?
A: No. His family got him off.
Q: But he let you up. He physically released himself from you, correct?
A: Yes.
Q: And you were on the mattress at that point?
A: Yes.
Q: And you moved to the sofa, right?
A: After I was shot, yeah.
Q: You turned towards the soft (sic), is that correct, sir?
A: After I was shot, yes.
Q: You do carry a .38, don’t you?
A: No.
Q: Sir, on January 1st, on New Year’s Eve, weren’t you at the house firing shots
with a .38?
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A: No.
Q: You got shot in the shoulder?
A: Yes.
Q: In the thigh – I’m sorry, the stomach?
A: In the stomach.
Q: Thank you.
Direct examination (Valena Jordan):
Q: Tell us your name, ma’am.
A: Valena Jordan.
Q: Ms. Jordan, are you familiar with the address 2753-2755 Buena Vista in the
City of Detroit?
A: Yes.
Q: Were you at that address on January 10th, 1998, at around about 11:00
p.m.?
A: Yes.
Q: Do you know a person by the name of Aubrey Winn?
A: Yes.
Q: Earlier that evening, had he taken you to the store?
A: Yes.
Q: After he brought you to the store, did you go back to the address on Buena
Vista?
A: Yes.
Q: Were you in the upstairs or the downstairs?
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A: The downstairs.
Q: Were you still around the house around 11:00 p.m.?
A: Yes.
Q: Were you awake or asleep at the time?
A: Sleep.
Q: Did something wake you up?
A: Yes.
Q: What woke you up?
A: Jackie said –
Q: So, you heard Jackie’s voice?
A: Yes.
Q: Based on hearing her voice, did you do anything?
A: I got up and I went to Mika’s room.
Q: Where is Mika’s room?
A: In the back by the bathroom, across from Akeva’s room.
Q: Is it in the upstairs or the downstairs?
A: The downstairs.
Q: While you were doing that, did you hear any other noise?
A: No.
Q: Did there come a time when you heard shots?
A: Yeah.
Q: Where were the shots coming from as best you could tell?
A: Upstairs.
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Q: When you heard shots, what did you do?
A: I walked – I stepped out of Mika’s room and was going towards the kitchen.
Q: What happened then?
A: Darry ran past me.
Q: What is the person’s full name?
A: Darry West.
Q: So, then, when you saw Darry West, he went past you, you said?
A: Yeah, he was running past me.
Q: Did you continue to look in his direction when he went past you?
A: Yes.
Q: Did you see anything happen to Darry.
A: I seen him fall to the ground. He was shot.
Q: He fell to the ground when he was getting shot?
A: He was getting shot, but he said “No!” Then he got shot, then he fell to the
ground. Then I ran back to Mika’s room.
Q: Could you tell where the shots that Darry suffered were coming from?
A: The dining area. It was like the kitchen and the dining area.
Q: Did you see anybody with a gun?
A: No.
Q: After Darry fell, what did you do?
A: I ran in Mika’s room?
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Q: Thank you.12
The prosecution introduced the transcript of this testimony at Petitioner’s trial.
2. Evidence presented at “due diligence” hearing
Petitioner claims that the trial court erred in admitting this testimony, over objection,
because the prosecution failed to establish the requisite “good faith” in attempting to locate
the witnesses. In particular, Petitioner alleges that the prosecution’s efforts were “too little,
too late.” The state trial court conducted a “due diligence” hearing on July 13, 1999, where
Sgt. Wilson, the officer in charge of the case, summarized his efforts to locate Rory Groves,
Valena Jordan, and Harold Winn.13 (JA 393-97, 436-47).
Sgt. Wilson testified that he received the subpoenas on July 1, 1999 and started
compiling the witness’ addresses the following day.
On July 5, he went to 15030 Greenlawn, Apartment 6, looking for Ms. Jordan and
Mr. Winn. He was unable to locate them, but did speak to a young lady by the name of
Sandra Watkins. Ms. Watkins, who lived in Apartment 5, informed Sgt. Wilson that Jordan
and Winn had moved out two weeks earlier.
Sgt. Wilson then went to 1945 Monterey and spoke to an African American male by
the name of James Murdock, who was also a resident of that house.14
12
JA 450-59. Although Jordan was available for cross-examination, no questions were
asked on cross-examination.
13
Harold Winn was initially identified as a witness, but did not testify at the preliminary
examination.
14
It is unclear whether Sgt. Wilson was referring to the house on Greenlawn or the Buena
Vista residence.
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On July 6, he went to Technicolor, which was Ms. Jordan’s last known place of
employment, where he was informed that Ms. Jordan had not been employed there since
March 1999.
He also spoke to Patricia Williams at the Family Independence Agency, who
informed him that a grant was opened for Ms. Jordan the previous month. Ms. Williams
gave Sgt. Wilson an address of 3817 Monterey, a phone number, and a contact person by
the name of Mrs. Crenshaw. He spoke to Mrs. Crenshaw by phone and followed up in
person on July 7. Mrs. Crenshaw denied knowing Ms. Jordan.
He also spoke to other individuals in the vicinity of the Monterey address, none of
whom had seen Valena Jordan or Harold Winn.
On July 6, Sgt. Wilson went to Petitioner’s mother’s home located at 17387 Fairport
based upon reports from family members that Ms. Jordan and Mr. Winn were staying there.
He spoke to Ms. Winn, who denied knowing Harold, and left the subpoenas in the mailbox.
Finally, he tried contacting Ms. Jordan and Mr. Winn by telephone.
With respect to Mr. Groves, Sgt. Wilson went to his grandmother’s home in Highland
Park15 on July 5. He went back to that address every day until the trial started one week
later, on July 12, 1999.
Sgt. Wilson also went to Groves’ mother’s residence. No one was home, but he did
speak to Groves’ uncle, who lived next door. Sgt. Wilson left a copy of the subpoena, as
well as his business card bearing his telephone number, with Groves’ uncle, but no further
contact was made.
15
This was the same address where he had previously served Jacqueline Taylor and Akeva
Winn. (JA 439).
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He checked with the utility companies for any contact information (address,
telephone number, etc.), the county jail, and the morgue, to no avail.
Finally, Detroit Police units surveiled Petitioner’s mother’s home on two different
occasions for approximately19 total hours.
3. Discussion
Petitioner attacks the sufficiency of these efforts on several grounds.
First, he argues that the prosecution was dilatory in preparing, and Sgt. Wilson was
dilatory in serving, the subpoenas, which were not issued until less than two weeks before
the trial was scheduled to begin.16
Second, he notes that, despite Sgt. Wilson’s efforts, the subpoenas were never
personally served on the witnesses.
Finally, Petitioner argues that the prosecutor should have known and, in fact,
acknowledged in his opening statement that these witnesses would be particularly difficult
to produce and would “demand special attention.”17 (Pet. Brief, p. 24).
In sum, Petitioner claims that “[t]he belated efforts to locate and produce these
witnesses, while somewhat extensive, did not meet the standard of due diligence.” (Id.)
(emphasis added).
16
Petitioner also contends that this delay was inexcusable, as the trial date had been set for
nearly four months. On a related note, Petitioner did not go to trial until approximately 17 months
after the date of the bind-over. He claims that “[t]he passing of so long a period of time should
place any reasonable prosecutor on notice that a witness may have changed residences or would
otherwise become difficult to locate.”
17
Because they were either relatives or close friends of Petitioner.
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Petitioner relies, in large part, on this Court’s decision in United States v. Quinn, 901
F.2d 522 (6th Cir. 1990). Petitioner’s reliance on Quinn, however, is misplaced. In that
case, the defendant was convicted in federal court of possession with intent to distribute
cocaine. At trial, the Government introduced testimony given by the defendant’s girlfriend,
Sharon Braxton, at an earlier suppression hearing. Id. at 525. This testimony was the only
evidence offered by the Government that connected the defendant to the athletic bag in
which the cocaine was found, and placed him in the apartment before the arrest. Id. at
526. The jury ultimately returned a guilty verdict, and the defendant was sentenced to 63
months incarceration and 3 years of supervised release. Id.
On appeal, the defendant argued that the district court erred in admitting the
transcript of Braxton’s suppression hearing testimony because the Government failed to
lay a proper foundation, i.e., demonstrate that Braxton was unavailable to testify at trial.
Id.
In response, the Government presented the testimony of two U.S. Marshals
regarding the efforts that were made to locate Sharon Braxton and present her at trial. Id.
at 524. First, Officer Robert O’Banner testified that the subpoena for Braxton was issued
on Wednesday, March 29, 1989, and received by his office the following day. Quinn, 901
F.2d at 524. O’Banner considered this fairly short notice, explaining that the Marshals
normally like at least five working days to locate a witness. Id.
O'Banner testified that on Thursday, March 30, he went to 3194 Steele, Number 1,
the address provided by Braxton at the suppression hearing, but was unable to gain access
to the building. Id. He testified that he was able to determine which apartment was
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Number 1, and pounded on the window. Id. He testified that he did not get a response,
but was unsure if anyone was there.
On Friday, March 31, O'Banner returned to the complex. No one was in the
manager's office, but O’Banner was able to access the corridor with the help of an
employee. Id. at 524-25. He pounded on, and left a U.S. Marshal sticker on, the apartment
door. Id. at 525.
Finally, O'Banner testified that on Monday, April 3, the first day of trial, he went back
to the apartment. No one was home, but he did talk to a woman washing her vehicle, who
informed him that Braxton had moved away about one month earlier. Quinn, 901 F.2d at
525.
The Government also called Officer Cash, who testified that he had been tied up in
federal court the week before trial, and did not have the time to go out and try to locate
Braxton over the weekend. Id.
Cash testified that he had received information on the night of April 3 that Sharon
was living with her mother (Beula Braxton) at 261 Keel, Apartment 3. Id. He went out to
the address on the night of April 3 at 12:30 a.m. Id. Cash verified that Sharon's car was
still registered in her name, but testified that he did not see it when he drove by her
mother's home. Id.
Officer Cash also testified that at approximately 7:45 a.m. on Tuesday, April 4, he
placed a call to the residence, and spoke to an elderly female, who identified herself as
Beula Braxton. Id. Ms. Braxton advised Officer Cash that Sharon was not there, but was
expected back later that evening. Quinn, 901 F.2d at 525. Officer Cash did not inform
Braxton’s mother why he was looking for her. Id.
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Over objection, the district court concluded that, based upon the officers’ testimony,
the Government demonstrated a “good faith” effort to locate and present Sharon Braxton
at trial. Id.
This Court disagreed, noting that even though the “good faith” and “reasonableness”
requirements of Roberts are not subject to exact definition, it was clear that the
Government’s efforts were insufficient. Id. at 528.
In support, the Court seized on the following deficiencies: 1) the subpoenas were
received on the Thursday before the Monday trial, and no efforts were made during the
intervening weekend; 2) Officer Cash drove by Braxton’s mother’s home, but did not stop
or call that evening; and 3) no county or city records were checked, no one followed up with
the manager of the apartment building regarding a forwarding address, and no efforts were
made to contact Braxton’s relatives or possible employers. Id.
The Government’s efforts were criticized as “negligible” and “singularly
unenthusiastic,” especially in light of the fact that Braxton was a key witness in its case
against the defendant. Id.
The facts that informed the Court’s decision in Quinn are not present in this case.
First, and foremost, Sgt. Wilson undertook precisely those efforts that the officers
in Quinn neglected. He pursued leads concerning forwarding addresses; spoke to
neighbors, family members, and former employers; checked utility records, the local jail,
and the morgue; contacted a state agency from which one of the witnesses was known to
be receiving assistance; and conducted several hours of surveillance on locations where
the witnesses were likely to be found.
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Second, although Sgt. Wilson received the subpoenas only seven working days
before the trial began, it does not appear that his efforts were, in any way, hampered by a
lack of time within which to locate the subject witnesses. See Tate, 1995 WL 27505 at *8
(stating, “a proper inquiry into reasonable, good faith efforts requires a court to look at all
the facts, including when the government initiated efforts to contact absent witnesses”).
This is in stark contrast to Quinn, where this Court reasoned that the efforts were
“negligible, perhaps due in part to the unreasonable time constraints placed upon the
Marshal’s office.” Quinn, 901 F.2d at 528.
Finally, unlike Sharon Braxton, Rory Groves and Valena Jordan were not “key
witnesses” in the prosecution’s case against Petitioner. Several other witnesses testified
regarding the events that transpired on the night of January 10, 1998, including Jacqueline
Taylor, Akeva Winn, and Sgt. Wilson, who testified regarding the admissions Petitioner
made during interrogation.
For all these reasons, the Court concludes that the prosecution, in association with
the Detroit Police Department, made a good faith effort to locate Valena Jordan and Rory
Groves, and present them at trial.
The trial court properly determined that the witnesses were “unavailable” prior to
admitting their preliminary examination testimony. Petitioner’s Confrontation Clause claim
is, therefore, without merit.
III. CONCLUSION
Based on the foregoing, the Court concludes that the decision of the Michigan Court
of Appeals was neither contrary to, nor an unreasonable application of, the Supreme
Court’s decision in Ohio v. Roberts. Moreover, the decision was not based upon an
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unreasonable determination of the facts in light of evidence presented during the “due
diligence” hearing. The decision of the district court denying Petitioner’s request for federal
habeas relief is, therefore, AFFIRMED.
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