Ali Al-Timimi v. Andrew Jackson , 379 F. App'x 435 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0330n.06
No. 09-1344
FILED
UNITED STATES COURT OF APPEALS May 28, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
ALI SABRI JAWAD AL-TIMIMI, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
ANDREW JACKSON, ) OPINION
)
Respondent-Appellee. )
BEFORE: GUY, COLE, and SUTTON, Circuit Judges.
COLE, Circuit Judge. The petitioner-appellant, Ali Sabri Jawad Al-Timimi, appeals the
district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Because
Al-Timimi has not demonstrated that the requirements for habeas relief under the Antiterrorism and
Effective Death Penalty Act of 1996 have been met, we AFFIRM the district court’s denial of his
petition.
BACKGROUND
Following a jury trial in the Wayne County Circuit Court, Ali Sabri Jawad Al-Timimi (“the
petitioner”) was convicted of second-degree murder and sentenced to fifteen to twenty-five years in
prison. The conviction followed from a traffic collision on October 3, 2001 involving the petitioner
and Waheed Al-Alyawi—the boyfriend of the petitioner’s sixteen-year-old sister-in-law, Zamen Al-
Kasid—who was riding a motorcycle when the petitioner’s car struck and killed him. The petitioner
fled the scene in his car, but two eye-witnesses recorded his license-plate number. When located and
Al-Timimi v. Jackson
Case No. 09-1344
interviewed by police, he initially denied knowing about the accident at all; later, he admitted that
he had been involved in the accident but denied knowing Waheed. After the police learned of the
romantic connection between Waheed and Zamen, of which Zamen’s family did not approve, the
petitioner was charged with first-degree murder.
On October 15, 2001, the police conducted an interview with Zamen, who stated that Waheed
had told her prior to the accident that he was sick of his life without her and would kill himself to
prove his love. At the petitioner’s preliminary examination on October 26, 2001, held before
Dearborn District Judge Virginia Sobotka, Zamen testified under oath as a witness for the
prosecution. Because of malfunctioning recording equipment and the subsequent death of the court
reporter, only a partial transcript of her testimony is available. The partial transcript reveals that
Zamen testified that, at the time of the accident, she lived with her parents, the petitioner and the
petitioner’s wife and that, before his death, Waheed had asked her parents for permission to marry
her. Initially, her parents had approved the engagement, but later withdrew their approval.
Nonetheless, Zamen stayed in contact with Waheed, resulting in the petitioner’s visiting her at school
on October 3, 2001, the day of Waheed’s death, to discuss the impropriety of the relationship.
While the transcript ends at this point, according to testimony later given at trial by Judge
Sobotka and two police officers who had attended the hearing, Zamen proceeded to testify that the
petitioner had advised her to end the relationship. Later on October 3, Zamen’s father discovered
her in her bedroom speaking on her cellular telephone with Waheed. An argument ensued in which
Zamen’s father struck her at least once. Once her father left the room, the petitioner confronted
Zamen again, threatening that he would kill Waheed and that her brother would kill her. Judge
2
Al-Timimi v. Jackson
Case No. 09-1344
Sobotka testified that she had copied verbatim Zamen’s testimony on this point: According to her
notes, Zamen had stated that the petitioner had said: “You’ll see what I’ll do to deceased. He won’t
be alive. [Zamen’s brother] will kill you. . . . I will kill decease[d]. . . . Today you will see what I
will do. I will kill. And your brother will kill you.” (Trial Tr. 62-63, Oct. 9, 2002.)
After the hearing, Zamen was taken into protective custody but escaped in December 2001.
Upon becoming aware of her disappearance in March or April 2002, the police conducted a search
for her, but Zamen still could not be located when the petitioner’s trial began in October 2002. In
light of her absence, the trial court allowed the partial transcript to be read to the jury and the
prosecution to call as witnesses Judge Sobotka and the two police officers, who recounted their
recollection of the remainder of Zamen’s testimony. Judge Sobotka–-who was not identified as a
judge when she testified—acknowledged that she had taken only two pages of notes during Zamen’s
testimony, which she described as not having lasted very long. Both officers acknowledged that they
had not taken any notes and were testifying from memory. On cross-examination, one of the officers
further stated that she could not remember which facts had been brought out during the direct
examination and which on cross-examination.
Defense counsel did not call any witnesses who had been in the courtroom during the
preliminary examination, as none could be located who had a full recollection of the cross-
examination testimony. Counsel did call other witnesses, however, including one of Zamen’s sisters,
Rafah Al-Kasid, who testified that Zamen told her that Waheed had threatened to kill himself if she
would not marry him and that the police had coerced her to testify in the manner she did at the
preliminary examination. Other witnesses called by the defense testified that the petitioner was not
3
Al-Timimi v. Jackson
Case No. 09-1344
involved in disciplining Zamen, that it would have been against the family’s religious beliefs for him
to have been left alone with her, and that he had not in fact been present at the house during the time
of the alleged fight between Zamen and her father.
At the conclusion of the five-day trial, the jury found the petitioner guilty of second-degree
murder. On direct appeal, the petitioner argued that his right to confront the witnesses against him
had been violated by the admission of Zamen’s prior testimony. The Michigan Court of Appeals
rejected this argument and affirmed his conviction. People v. Al-Timimi, No. 245211, 2004 WL
1254271 (Mich. Ct. App. June 8, 2004) (unpublished). The Supreme Court of Michigan denied
leave to appeal on March 31, 2005, over the dissent of two justices. People v. Al-Timimi, No.
126725, 693 N.W.2d 822 (Mich. Mar. 31, 2005) (table). On October 6, 2005, the petitioner filed
for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan,
again arguing that his Confrontation Clause rights had been violated. On February 17, 2009, the
district court denied the petition but, on February 18, granted a certificate of appealability. We have
jurisdiction over the petitioner’s appeal under 28 U.S.C. §§ 1291 and 2253.
ANALYSIS
We review de novo a district court’s decision to grant or deny a petition for a writ of habeas
corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2007). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), we may grant a writ of habeas corpus with respect to a claim
adjudicated on the merits in state court proceedings if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “Clearly established federal law”
4
Al-Timimi v. Jackson
Case No. 09-1344
under AEDPA refers to the holdings, not the dicta, of the Supreme Court at the time of the state-
court decision at issue. Railey v. Webb, 540 F.3d 393, 413-14 (6th Cir. 2008) (citing Yarborough
v. Alvarado, 541 U.S. 652, 660-61 (2004)). A state-court decision is contrary to clearly established
federal law “if the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different
from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state-court decision is
an unreasonable application of clearly established federal law if it “correctly identifies the governing
legal rule but applies it unreasonably to the facts of a particular prisoner’s case,” id. at 407-08, or if
it “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme
Court precedent to a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000).
The petitioner argues that the admission of Zamen’s testimony from the preliminary
examination violates the Confrontation Clause of the Sixth Amendment to the United States
Constitution. The Supreme Court has made clear that the right to confrontation bars “admission of
testimonial statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination.” Davis v. Washington, 547
U.S. 813, 821 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). As the
petitioner argues, there is some question whether a preliminary hearing necessarily offers an
adequate prior opportunity for cross-examination for Confrontation Clause purposes. See Vasquez
v. Jones, 496 F.3d 564, 577 (6th Cir. 2007) (doubting whether “the opportunity to question a witness
at a preliminary examination hearing satisfies the pre-Crawford understanding of the Confrontation
5
Al-Timimi v. Jackson
Case No. 09-1344
Clause’s guarantee of an opportunity for effective cross-examination”) (internal quotation marks
omitted); see also Prior Opportunity for Cross-Examination, Posting of Richard D. Friedman to The
Confrontation Blog, http://confrontationright.blogspot.com/2005/02/prior-opportunity-for-cross.html
(Feb. 11, 2005, 10:12 EST) (discussing potential timing and motivation problems that may make
prior opportunity for cross-examination inadequate). Since the purpose of the preliminary
examination is only to determine whether probable cause exists to proceed to trial, defense counsel
may lack adequate motivation to conduct a thorough cross-examination, see Barber v. Page, 390
U.S. 719, 725 (1968) (noting in dicta that “[a] preliminary hearing is ordinarily a much less searching
exploration into the merits of a case than a trial, simply because its function is the more limited one
of determining whether probable cause exists to hold the accused for trial”), and may wish to avoid
tipping its hand to the prosecution by revealing the lines of questioning it plans to pursue. A second
problem is that the opportunity for cross-examination at the preliminary examination may come too
early in the proceedings to be useful to the defense. For example, at the time of the hearing in this
case, the petitioner’s counsel was unaware of the October 15, 2001 interview the police conducted
with Zamen and had not yet been given the interview notes by the prosecution—nondisclosure that,
had it occurred at the trial stage, may well have implicated the petitioner’s due process rights under
Brady v. Maryland, 373 U.S. 83 (1963) (requiring prosecution’s disclosure of material evidence
favorable to the accused).
These potential problems notwithstanding, because this case is before us on collateral review,
we may grant habeas relief only if the petitioner has satisfied the high threshold established by
AEDPA. Reviewing the Supreme Court’s cases in this area, we cannot find that the trial court’s
6
Al-Timimi v. Jackson
Case No. 09-1344
decision to admit the petitioner’s testimony was contrary to, or involved an unreasonable application
of clearly established federal law. It is true, as the petitioner argues, that the Supreme Court has
acknowledged that a preliminary hearing generally involves a less searching exploration into the
merits of a case than does a trial. See Barber, 390 U.S. at 725. But this statement was dicta, not
clearly established law for the purposes of AEDPA. See Railey, 540 F.3d at 413-14. Nor was it left
unqualified: The Barber Court went on to suggest that “there may be some justification for holding
that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand
of the confrontation clause where the witness is shown to be actually unavailable.” 390 U.S. at 725-
26. Moreover, in its later decisions, the Court appears to have retreated from the doubts it expressed
in Barber by finding that the opportunity for cross-examination afforded at a preliminary
examination may satisfy the Confrontation Clause in at least some circumstances.
For example, in California v. Green, 399 U.S. 149 (1970), the Court found no Sixth
Amendment violation where the trial court admitted a prior statement of a witness made at a
preliminary hearing. As the Court noted, the witness was under oath; the defendant “was represented
by counsel—the same counsel in fact who later represented him at the trial,” and “had every
opportunity to cross-examine [the witness] as to his statement;” and “the proceedings were
conducted before a judicial tribunal equipped to provide a judicial record of the hearings.” Id.While the Court found that the case did not present an occasion “to map out a theory of the
Confrontation Clause,” id. at 162, it held that the circumstances of the particular preliminary hearing
at issue, “closely approximating those that surround the typical trial,” satisfied the Sixth
Amendment. Id. at 165; see also id. (“[W]e do not find the instant preliminary hearing significantly
7
Al-Timimi v. Jackson
Case No. 09-1344
different from an actual trial to warrant distinguishing the two cases for purposes of the
Confrontation Clause.”).
Similarly, in Ohio v. Roberts, 448 U.S. 56 (1980), the Court held that the admission of a prior
statement given at a preliminary hearing had sufficient “indicia of reliability” to satisfy the
Confrontation Clause. The Court noted that Green suggested that “the opportunity to cross-examine
at the preliminary hearing—even absent actual cross-examination—satisfies the Confrontation
Clause,” although counsel had, in fact, cross-examined the witness at the earlier proceeding. Id. at
70. The Court in Roberts declined to resolve whether the mere opportunity to cross-examine or de
minimis questioning actually would be constitutionally sufficient, since, like in Green, defense
counsel had “tested [the witness’s] testimony with the equivalent of significant cross-examination.”
Id. In addition, the same “accouterments of the preliminary hearing” that satisfied the Court in
Green were present. Id. at 73. Thus, “[s]ince there was an adequate opportunity to cross-examine
[the witness], and counsel . . . availed himself of that opportunity,” the Sixth Amendment was
satisfied. Id. (internal quotation marks omitted).
While the Court subsequently rejected the “indicia of reliability” test in Crawford, it
approvingly cited the outcome of both Roberts and Green. See Crawford, 541 U.S. at 57-58. The
Crawford Court also affirmed the results in Barber and Motes v. United States, 178 U.S. 458 (1900),
where prior testimony given at a preliminary hearing was excluded because the government had not
established the unavailability of the witness, and in Pointer v. Texas, 380 U.S. 400 (1965), where
evidence was excluded because the defendant was not represented by counsel at the preliminary
hearing. See Crawford, 541 U.S. at 57. At the preliminary hearing in this case, as in Roberts and
8
Al-Timimi v. Jackson
Case No. 09-1344
Green and unlike in Pointer, the petitioner was represented by counsel, who was afforded a full
opportunity to cross-examine the prosecution’s witnesses, without any apparent restriction by the
presiding judge, and availed himself of this opportunity to the extent that he saw fit. Unlike in
Barber and Motes, there is no indication that the government played a role in Zamen’s unavailability.
And no decision of the Court has suggested if or when the unavailability of potentially favorable
evidence may undermine the adequacy of an opportunity for cross-examination at a preliminary
examination. Accordingly, we cannot say that the trial court’s decision to admit the testimony from
the preliminary examination was contrary to, or an unreasonable application of clearly established
federal law.
The petitioner also argues that, even if the fact of the testimony’s admission did not violate
the Confrontation Clause, the manner of its admission did. According to the petitioner, Green sets
out four minimal criteria that must be met to satisfy the Confrontation Clause: (1) the declarant was
under oath at the preliminary hearing; (2) the accused was represented at the preliminary hearing by
the same counsel who later represented him at trial; (3) the accused had every opportunity at the
preliminary hearing to cross-examine the declarant as to his statement; and (4) the proceedings at
the preliminary hearing were conducted before a judicial tribunal equipped to provide a judicial
record of the hearing. In the plaintiff’s view, the fourth purported criterion—that the testimony occur
before a tribunal equipped to provide a judicial record of the hearings—was undermined by the
unavailability of a verbatim record of the proceedings, rendering unconstitutional the recreation of
Zamen’s testimony at trial.
9
Al-Timimi v. Jackson
Case No. 09-1344
As the district court noted, however, the Court in Green clearly did not intend to set out “the
irreducible minimum requirements for prior testimony to pass muster under the Confrontation
Clause.” Al-Timimi v. Jackson, 608 F. Supp. 2d 833, 847 (E.D. Mich. 2009). Indeed, the Court
expressly disclaimed any intent “to map out a theory of the Confrontation Clause.” Green, 399 U.S.
at 162. More fundamentally, the Confrontation Clause simply is not implicated by the manner in
which prior testimony is reproduced at trial. As the Supreme Court stated in Crawford, “the
Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a
substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in
a particular manner: by testing in the crucible of cross-examination.” 541 U.S. at 61. Once the prior
opportunity for cross-examination is satisfied, so too is the Sixth Amendment. See id. at 55 (“We
do not read the historical sources to say that a prior opportunity to cross-examine was merely a
sufficient, rather than a necessary, condition for admissibility of testimonial statements. They
suggest that this requirement was dispositive, and not merely one of several ways to establish
reliability.”). Accordingly, the petitioner’s argument fails.
V. CONCLUSION
For the reasons above, we AFFIRM the district court’s denial of the petition for issuance of
a writ of habeas corpus.
10