Allen v. Hawley , 74 F. App'x 457 ( 2003 )

RYAN, Circuit Judge.

This appeal presents the question whether the district court erred in holding that the petitioner is not entitled to federal habeas corpus relief from his state court conviction for murder, on the ground that the alleged misconduct of the state trial judge denied him the fair trial that is guaranteed by the Due Process Clause of the Fourteenth Amendment.

We hold that the district court did not err.

I.

Petitioner Joseph Allen was convicted of murder in the first degree in a Michigan state court and his conviction was affirmed on direct appeal to the Michigan Court of Appeals. Michigan v. Allen, No. 137526 (Mich. Ct.App. June 1, 1994) (unpublished disposition). His application for leave to appeal to the Michigan Supreme Court was denied. Michigan v. Allen, 448 Mich. 905, 532 N.W.2d 534 (Mich.1995) (order). He then brought a petition in the district court for federal habeas corpus relief and that, too, was denied. Allen v. Hawley, No. 97-40118 (E.D.Mich. Dec. 22, 2000) (unpublished order). He now appeals.

Allen’s principal claim in the Michigan Court of Appeals and in his federal habeas petition is that he was denied a fair trial under the Due Process Clause of the Fourteenth Amendment because, during the course of his trial, the state trial judge’s behavior repeatedly indicated a bias against the petitioner and in favor of the prosecution.

Our very limited authority to review the Court of Appeals decision is defined by Congress in 28 U.S.C. § 2254(d), a portion of the statute more popularly known as the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), codified as amended at 28 U.S. § 2254 (West Supp.2002). In § 2254(d), Congress enacted a rebuttable presumption that a federal court may not grant habeas relief from a state court conviction if the last state court adjudicated “on the merits” the same federal law question that is presented to the federal court. But Congress also created two exceptions to that bar. A federal court may grant habeas relief in such a case if the state court adjudication is either “contrary to” or “involved an unreasonable application of’ settled federal law, as decided by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).

The statute states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the elaim-

(1) resulted in a decision that was [ (a) ] contrary to, or [ (b) ] 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) (West Supp.2002).

The parties seem to agree-at least they do not disagree-that when the Michigan Court of Appeals affirmed Allen’s murder conviction, it rendered a decision “on the merits” of his claim that the state trial judge’s alleged bias denied him a fair trial under the Due Process Clause of the Fourteenth Amendment. There also appears to be no disagreement that Allen made the same claim in his federal habeas petition. We agree.

Since it is not disputed that the state court ruling was “on the merits,” we must declare “deference to the state court.” McKenzie v. Smith, 326 F.3d 721, 726-27 (6th Cir.2003). We may not “ ‘exercise our independent judgment’ and review the claim de novo. ” Id. (quoting Hain v. Gibson, 287 F.3d 1224, 1229 (10th Cir.2002), cert. denied, 537 U.S. 1173, 123 S.Ct. 993, 154 L.Ed.2d 916 (2003)). Instead, our authority to entertain Allen’s fair trial challenge is limited to determining only whether the Michigan Court of Appeals decision was (1) “contrary to” or (2) “an unreasonable application of’ clearly established federal law, as determined by the United States Supreme Court.

In doing so, we first must determine whether the “contrary to” or the “unreasonable application of’ prong of § 2254(d)(1) applies. The petitioner seems unconcerned about that distinction and in his brief to this court repeatedly argues that both prongs are applicable. The government is not much more helpful, arguing that the Michigan Court of Appeals decision was not “contrary to” or did not involve “an unreasonable application of’ clearly established Supreme Court law, without discussing the distinction between the two. However, because the parties seem to agree that the state court decision implicated the right to a fair trial under the Due Process Clause of the Fourteenth Amendment, and thus was an “adjudication] on the merits,” we will apply the “unreasonable application” prong rather than the “contrary to” prong of § 2254(d)(1). See Bugh v. Mitchell, 329 F.3d 496, 507-08 (6th Cir.2003); Thompson v. Bell, 315 F.3d 566, 585-86 (6th Cir.2003). The Supreme Court has defined an unreasonable application as “ ‘correctly identifying] the governing legal principle only to unreasonably apply that principle to the particular facts of the case at hand.’” Thompson, 315 F.3d at 586 (quoting Doan v. Brigano, 237 F.3d 722, 730 (6th Cir.2001)).

II.

We now turn to the ultimate and dispositive question before us: whether the district court erred in concluding that the petitioner has not shown that the Michigan Court of Appeals “unreasonabl[y] appli[ed]” clearly established fair trial and due process law as decided by the United States Supreme Court when it concluded, on direct appeal, that he was not denied a fair trial by the alleged judicial bias of the state trial judge.

III.

The specifics of the state trial judge’s concededly rude, injudicious, and overbearing behavior during Allen’s trial are amply detailed in the magistrate judge’s report and recommendation and are set forth in even greater detail in our brother Judge Clay’s opinion. Moreover, they are well known to the parties and need no reiteration in this unpublished opinion.

Allen argues in his brief to this court that what he variously describes as the trial judge’s “hostility,” “impatience,” “intemperance,” “unwonted intrusions,” and “belligerent and argumentative” behavior amounted to judicial misconduct that in its total effect “broadcast partiality” in favor of the prosecution and against the petitioner, and therefore, denied Allen a fair trial. Although the petitioner does not explicitly declare that the “judicial misconduct” of the trial judge amounted to judicial “bias,” we think that is the essence of his due process claim.

IV.

Supreme Court decisions addressing claims of a denial of due process because of a trial judge’s bias follow two lines of reasoning. One group of cases addresses charges of “judicial bias” stemming from a trial judge’s “personal interest,” or “stake,” in the outcome of a case, usually derived from some extrajudicial association with the cause or with one of the parties. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955); Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The second group of cases is more appropriately described as the “judicial misconduct” cases. See Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see also Alley v. Bell, 307 F.3d 380, 386 (6th Cir.2002), petition for cert. filed, (U.S. May 19, 2003) (No. 02-10839). This second group consists, for the most part, of cases in which the trial judge is accused of conducting the proceedings in a manner that strongly suggests to the jury that the judge disbelieves the defendant’s case, or for other reasons, thinks the prosecution should prevail. This, in essence, is Allen’s claim.

The two groups of judicial bias cases do not trace parallel lines and they may converge. Experienced litigators are well aware that in criminal trials particularly, it is entirely possible that a trial judge who has no personal interest in the case or relationship with any of the parties or their counsel will nevertheless conduct the trial in a manner such that his interruptions, tone of voice, facial expressions, criticism of counsel, or comments on the evidence strongly suggest to the jury that the prosecution should prevail. In such cases, strictly speaking, it is the trial judge’s “judicial misconduct” as distinguished from an antecedent “personal interest” which may result in impermissible judicial bias. See Liteky, 510 U.S. at 555, 114 S.Ct. 1147. Indeed, the Supreme Court recognized as much in Liteky, when the majority observed that judicial bias includes “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. Such bias, in turn, can deprive the defendant of a fair trial because “[flairness of course requires an absence of actual bias in the trial of cases.” Murchison, 349 U.S. at 136, 75 S.Ct. 623.

The type of bias defined in Liteky is precisely what the petitioner charges was present in his case. The petitioner claims that the trial judge was hostile, rude, overbearing, intemperate, and discourteous, and furthermore, that the trial judge repeatedly interrupted defense counsel’s efforts to conduct cross examination and criticized defense counsel explicitly and implicitly for “just taking up [the court’s] time” and presenting a “shotgun theory.” Essentially, Allen claims that the trial judge’s behavior toward defense counsel, combined with an absence of any such interruption or criticism of the prosecution, suggested “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555, 114 S.Ct. 1147.

We do not hesitate to say that if we were a Michigan appellate court conducting direct review in this case, we might very well conclude that the trial judge’s injudicious behavior, as detailed in the record of the trial, very likely conveyed to the jurors the appearance of such “favoritism or antagonism” toward the petitioner as to have made “fair judgment impossible.” And if we were conducting direct review, we might have added this case to the ever-lengthening list of decisions in which Michigan appellate courts have found it necessary to reverse criminal convictions because of this same trial judge’s intemperate and injudicious behavior. See, e.g., Michigan v. Conyers, 194 Mich.App. 395, 487 N.W.2d 787 (Mich.Ct.App.1992); Michigan v. Ross, 181 Mich.App. 89, 449 N.W.2d 107 (Mich.Ct.App.1989); Michigan v. Moore, 161 Mich.App. 615, 411 N.W.2d 797 (Mich.Ct.App.1987); Michigan v. Sterling, 154 Mich.App. 223, 397 N.W.2d 182 (Mich.Ct.App.1986).

But we are not conducting direct review and we have no superintending control over this trial judge. Moreover, we do not, under 28 U.S.C. § 2254(d), have the authority to grant a writ of habeas corpus, “[e]ven if we were to disagree” with the state court’s conclusion that the trial judge’s behavior, as offensive as it was, did not deprive Allen of the constitutionally required fair trial. Campbell v. Coyle, 260 F.3d 531, 543 (6th Cir.2001), cert. denied, 535 U.S. 975, 122 S.Ct. 1448, 152 L.Ed.2d 390 (2002). Nor would we have the authority to grant the writ if we were to determine, in our own independent judgment, that the Michigan Court of Appeals “‘applied clearly established federal law erroneously or incorrectly.’ ” Macias v. Makowski, 291 F.3d 447, 451 (6th Cir.2002) (citation omitted).

Ours, as we have said, is a far more narrow authority. It is to determine not whether the state court’s conclusion is one we would reach, but whether it is a conclusion based on “an objectively unreasonable application of’ settled Supreme Court due process law. Thompson, 315 F.3d at 585 (emphasis added). That means, of course, not that the Michigan Court of Appeals ought to have applied familiar due process principles differently than it did, but rather that it applied the principles in a fashion which was “unreasonable,” that is to say, inordinate, illogical, and ultimately, irrational.

In his dissenting opinion, my brother offers the novel observation that we are “wrong” to state that we think “unreasonable,” as used in § 2254(d)(1), means “inordinate, illogical, and ultimately, irrational,” because (1) we do not offer any citation to an authority, and (2) “[i]f the [Supreme] Court wished to define ‘unreasonable application’ in terms like ‘irrational,’ it could have done so.” Diss. op. at 7. To this startling observation, we deem it sufficient to respond that we think it is obvious that a federal court’s statement as to its understanding of the English language meaning of the word “unreasonable,” does not depend for its correctness upon (1) the same meaning having first been declared by some other court, or (2) approved by the Supreme Court.

But if it brings comfort to learn that we are not alone in our view that in the English language, the term “unreasonable application” in § 2254(d)(1) means, inter alia, an application that is inordinate, illogical, and ultimately, irrational, we offer the following:

A. unreasonable: 1. Not guided by reason; irrational or capricious. [Black’s Law Dictionary 1537 (7th ed.1999).]

B. unreasonable: 2 a: not governed by or acting according to reason: evincing indifference to reality or appropriate conduct: ill regulated in behavior b: not conformable to reason: ABSURD, INAPPROPRIATE, INCONGRUOUS ... 3: exceeding the bounds of reason or moderation: inordinate, unconscionable. [Webster’s Third New International Dictionary of the English Language Unabridged 2507 (1986).]

C. unreasonable: 1. not endowed with reason; irrational. 2. Not acting in accordance with reason or good sense; not reasonable in conduct, demands, expectations, etc. 3. Not in accordance with reason; not based upon sound reason or good sense, b. Inequitable, unfair; unjustifiable. 4. Going beyond what is reasonable or equitable; excessive in amount or degree, b. Excessively, extremely. [Oxford English Dictionary Online (2d ed.1989).]

With these definitions in mind, we cannot say that the Michigan Court of Appeals unreasonably applied federal law, and furthermore, the petitioner and his counsel have not demonstrated that it did so. We do not mean to criticize the defense counsel’s work or his presentation to this court. The fact is, there is simply nothing in the Michigan Court of Appeals opinion-particularly its abbreviated and conclusionary statement that the trial court’s alleged judicial bias did not deny Allen a fair trial-which at all indicates an unreasonable application of federal law. The dissent, in its unease at the absence of authoritative citations, seems concerned that the state court “neglectfed] to cite a single relevant Supreme Court opinion,” diss. op. at 9, but the Supreme Court itself has recently reminded us that it “does not require a citation of [its] cases-indeed, [the Court] does not even require awareness of [its] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them,” Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (emphasis in original). We find no basis to conclude that the Michigan Court of Appeals applied the familiar constitutional fair trial and due process principles “unreasonabl[y],” as § 2254(d)(1) requires be shown, rather than just differently than another appellate court, including this one, might have applied them.

V.

The petitioner also claims that he was denied the right to present a defense when the trial court excluded the proposed testimony of defense witness Jay Schaefer who would have testified to a jailhouse statement against penal interest made by Sean Feijoo, a friend of Allen’s, who stated that he (Sean Feijoo) had killed the deceased for whose murder Allen was ultimately convicted. Applying Michigan Rule of Evidence 804(b)(3), which permits the admission of a hearsay statement against penal interest only if “corroborating circumstances clearly indicate the trustworthiness of the statement,” the trial court excluded Schaefer’s testimony concerning Sean Feijoo’s statement because it lacked the requisite trustworthiness.

Again, as in the due process issue discussed above, the question before us is whether the district court erred in concluding that the Michigan Court of Appeals did not unreasonably apply established federal law when it concluded that the proffered statement was properly excluded because it did not bear the requisite indicia of trustworthiness.

The applicable federal law was announced in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), wherein the Supreme Court acknowledged that the constitutional right to present a defense “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. at 295., 93 S.Ct. 1038 The “other legitimate interest[ ]” in Chambers, as in this case, was the state’s interest in requiring that statements against penal interest which are admitted as an exception to the hearsay rule were made under circumstances that clearly indicate the trustworthiness of the statement.

It is indisputably clear that when deciding this issue, the Michigan Court of Appeals recognized that it was considering a federal constitutional challenge and that the principal controlling federal law was announced in Chambers. The Michigan Court of Appeals wrote:

For his next issue, defendant claims that he was denied the right to present a defense when the judge excluded hearsay testimony that someone else had confessed to the crime....

... When a constitutional violation is claimed, the following factors are also relevant: (1) the time when the declaration was made-how soon after the crime; (2) to whom it was made-whether it was made to someone to whom the declarant would likely speak the truth; (3) the existence of independent corroborating evidence; and (4) the availability of the declarant as a witness. [Chambers, 410 U.S. at 300-01, 93 S.Ct. 1038.] In this case, there were no indicia of reliability. The statement was made about two years after the crime; it contained no facts which could not have been gathered from a newspaper; there was no indication that the declarant and the proposed witness were anything except cellmates [sic]; the declarant refused to testify; and there was no corroborating evidence offered. We therefore conclude that the trial court did not abuse its discretion nor den[y] defendant the right to present a defense by excluding this testimony.

Allen, No. 137526, at 1-2 (footnote omitted).

Whether this court would or would not have come to the same conclusion reached by the Michigan Court of Appeals as to the trustworthiness of the proffered statement is completely irrelevant. The question is whether when the Michigan Court of Appeals adjudicated the federal question it unreasonably applied Chambers and the Due Process Clause of the Fourteenth Amendment. Clearly it did not. The state court followed Chambers and carefully considered the circumstances surrounding the statement, such as the time at which the statement was made, the relationship between the declarant and the proposed witness, and the existence of independent corroborating evidence. Based on the state court’s detailed analysis of the facts, its conclusion that the statement was untrustworthy was not an unreasonable application of United States Supreme Court precedent.

VI.

We have carefully considered each of the petitioner’s four additional assignments of error concerning the trial court’s comments on the evidence, interference with defense counsel, and evidentiary rulings, all of which fall generally under the right to a fair trial. We think these issues derive from the petitioner’s judicial bias claim because he characterizes the comments and rulings as unduly adverse to his cause. In light of our conclusion that the Michigan Court of Appeals did not unreasonably apply due process principles in evaluating the more specific instances of alleged judicial bias, we likewise conclude that the remaining claims are without merit and warrant no explication.

VII.

We conclude that the district court did not err when it held that the petitioner has not demonstrated that the Michigan Court of Appeals, in deciding his right to a fair trial and right to present a defense claims, rendered a decision that involved an unreasonable application of clearly established due process principles.

For these reasons, the judgment of the district court is AFFIRMED.