Conny Moritz v. Jeffrey Woods

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0284n.06
No. 16-1504
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
CONNY MORITZ, ) May 22, 2017
) DEBORAH S. HUNT, Clerk
Petitioner-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
JEFFREY WOODS, Warden, ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Respondent-Appellant. )
)
)
BEFORE: BOGGS and MCKEAGUE, Circuit Judges; and CARR, District Judge.
BOGGS, Circuit Judge. This case comes to us presenting a common challenge: a district
court is said to have granted habeas relief despite the deference to state courts demanded by
AEDPA.1 In 2003, Conny Moritz was tried for and convicted in the Macomb County Circuit
Court of various crimes relating to the kidnapping of his estranged wife and her son. At various
times on direct appeal, Moritz argued, inter alia, that his conviction should be overturned
because (1) the trial court violated his Sixth Amendment right to counsel when it replaced his
defense counsel without obtaining his consent; (2) he was denied his Sixth and Fourteenth
Amendment rights to counsel when his retained counsel was absent at a critical stage of trial; and
(3) he was denied his Sixth Amendment right to confront the witnesses against him. All three

The Honorable James G. Carr, Senior United States District Judge for the Northern District of
Ohio, sitting by designation.
1
“AEDPA” refers to the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214.
No. 16-1504, Moritz v. Woods
claims were denied on the merits in state court, and all three claims were re-raised in Moritz’s
habeas corpus petition before the district court. The district court granted Moritz’s petition on
the first two grounds, but we reversed, noting that the district court had failed to give the state
courts proper AEDPA deference. See Moritz v. Lafler, 525 F. App’x 277 (6th Cir. 2013). We
remanded the case to the district court to evaluate the remainder of Moritz’s habeas claims. On
remand, the district court granted habeas again, this time on Moritz’s third claim. The State
challenges the district court’s decision on appeal. Because the district court again failed to give
proper AEDPA deference, we reverse the district court and remand for proceedings consistent
with our opinion.
I
A
The basic facts of this case can be gleaned from our previous opinion:
Moritz’s underlying conviction arose from a series of events beginning in
November 2002, when Moritz’s wife, Donna, left their home in Tennessee and
moved to Michigan. With her, Donna also took her eight-year-old son, Salvatore,
who was not related to Moritz. In December 2002, Moritz traveled to Michigan
along with his own two children, Tina and Kevin, to bring Donna back to
Tennessee. After arriving at the apartment where Donna was staying, Moritz
allegedly threatened Donna, Salvatore, and Donna’s neighbors with a gun and
forced Donna and Salvatore into his car. Once in the car, a struggle ensued
during which Moritz fired the gun, injuring Donna, Salvatore, and Tina. At the
end of this scuffle, Moritz fell out of the car, at which point the remaining
passengers drove to a nearby hospital for treatment. Though Salvatore and Donna
were seriously injured, no one was fatally wounded during this incident.
In July 2003, Moritz was tried in the Macomb County Circuit Court for
crimes relating to this series of events. . . . After the jury deliberated for
approximately fifteen hours, it informed the judge that it could not reach a
unanimous verdict. The judge, however, felt that it was too early to declare a
mistrial and spoke with the parties about reading the jury a supplemental deadlock
instruction. . . .
-2-
No. 16-1504, Moritz v. Woods
. . . The judge . . . then read the supplemental instruction to the jury. . . .
Subsequently, the jury convicted Moritz of one count of kidnapping, in
violation of Mich. Comp. Laws § 750.349, one count of first-degree home
invasion, in violation of Mich. Comp. Laws § 750.110a(2), three counts of felony
firearm, in violation of Mich. Comp. Laws § 750.227b, four counts of assault with
a dangerous weapon, in violation of Mich. Comp. Laws § 750.82, and one count
of carrying a dangerous weapon with unlawful intent, in violation of Mich. Comp.
Laws §750.226.
Id. at 278–79.
Of relevance to this appeal, the trial court also permitted the State to introduce at trial a
preliminary-examination transcript of Carl Cooper, a friend of Moritz who was present for many
of the events leading up to and during the alleged kidnapping. The trial court’s rationale was
straightforward:
Apparently, the prosecution has one witness left. His name has come up
plenty of times, Mr. Carl Cooper. Unfortunately, Mr. Cooper is indisposed as we
know, it sounds like he was picked up by Southgate Police, a probation violation.
Optimistically, to try and get him here today, I don't even really see it. It would
have to be tomorrow. I told counsel I intend to proceed, we have the benefit of a
preliminary examination transcript where Mr. Cooper was called as a witness,
was subject to cross-examination. I'm finding that Mr. Cooper is unavailable as a
witness, and as a result, that's why we have exam transcripts, we might as well
use them.
People v. Moritz, No. 251265, 2006 WL 2220966, at *2 (Mich. Ct. App. Aug. 3, 2006).
B
On direct appeal, Moritz challenged the trial court’s determination that the Cooper
transcript was properly admissible. The Michigan Court of Appeals rejected Moritz’s appeal on
the merits:
Defendant argues that the trial court erred by allowing Carl Cooper's
preliminary examination testimony to be read into the record in lieu of requiring
the prosecution to provide Cooper's live testimony. We disagree.
-3-
No. 16-1504, Moritz v. Woods
“The decision whether evidence is admissible is within the trial court's
discretion and should only be reversed where there is a clear abuse of discretion.”
People v. Starr, 457 Mich. 490, 494; 577 NW2d 673 (1998).
Defendant contends that the trial court admitted his testimony in violation
of his Sixth Amendment right to confront the witnesses against him. Pursuant to
the United States Supreme Court's decision in Crawford v. Washington, 541 U.S.
36; 124 S Ct 1354, 1374; 158 L.Ed.2d 177 (2004), “testimonial statements of a
witness who did not appear at trial [are inadmissible] unless he was unavailable to
testify, and the defendant had ... a prior opportunity for cross-examination.” Id. at
53-54. Cooper's preliminary examination testimony was clearly testimonial. Id. at
68 (“Whatever else the term covers it applies at a minimum to prior testimony at a
preliminary hearing....”). However, Cooper was unavailable to testify at trial and
defendant had an opportunity to cross-examine him at the preliminary
examination.
MRE 804(a)(5) states that a declarant is unavailable when the declarant “is
absent from the hearing and the proponent of his statement has been unable to
procure his attendance ... by process or other reasonable means, and in a criminal
case, due diligence is shown.” Our Supreme Court has also explained:
The test for whether a witness is “unavailable” as envisioned by
MRE 804(a)(5) is that the prosecution must have made a diligent
good-faith effort in its attempt to locate a witness for trial. The test
is one of reasonableness and depends on the facts and
circumstances of each case, i.e., whether diligent good-faith efforts
were made to procure the testimony, not whether more stringent
efforts would have produced it. [People v. Bean, 457 Mich. 677,
684; 580 NW2d 390 (1998) (citations omitted).]
Similarly, the test for whether a party exercised due diligence in
attempting to procure a witness' attendance at trial is one of reasonableness, that
being diligent good-faith efforts, not whether more stringent efforts would have
produced it. Barber v. Page, 390 U.S. 719, 724-725; 88 S Ct 1318; 20 L.Ed.2d
255 (1968); People v. James (After Remand), 192 Mich.App 568, 571; 481
NW2d 715 (1992).
....
-4-
No. 16-1504, Moritz v. Woods
Before reading Cooper's preliminary examination testimony into the
record, the trial court informed the jury that Cooper had been arrested for driving
with a suspended license and that “to get him over here today would be a massive
product” and that the court was going to instead use his preliminary examination
transcript. We hold that the trial court correctly ruled that Cooper was
unavailable.
Further, defendant's attorney had and used the opportunity to cross-
examine Cooper on the same issues at the preliminary examination. Therefore, the
trial court's admission of Cooper's testimony did not violate MRE 804 or the Sixth
Amendment.
People v. Moritz, 2006 WL 2220966, at *2–3. The state appeals court conceded in a footnote
that it “would have preferred the trial court to make a more thorough record with regard to the
logistical difficulties of obtaining Cooper’s presence at trial,” but concluded that the error would
have ultimately been harmless because “the jury acquitted [Moritz] of the crimes to which
Cooper was a witness.” Id. at *2 n.1.
Moritz attempted to take his direct appeal to the Michigan Supreme Court, but it denied
review. People v. Moritz, 725 N.W.2d 21 (Mich. 2006) (mem.). Moritz did not re-raise his
Confrontation Clause claim in any of his subsequent applications for state post-conviction relief.
C
While Moritz’s appeals were pending in state court, he filed a petition for a writ of
habeas corpus in the federal district court. The district court held Moritz’s petition in abeyance
until his state-court proceedings concluded. On December 4, 2009, the district court reinstated
Moritz’s petition to its active docket and permitted him to file an amended petition that
contained, inter alia, his claim that the trial court violated his rights secured by the Confrontation
Clause of the Sixth Amendment. The district court conditionally granted Moritz’s petition, but
not on Confrontation Clause grounds. Moritz v. Woods, 844 F.Supp.2d 831 (E.D. Mich. 2012).
We reversed, holding that the district court improperly failed to give AEDPA deference to the
-5-
No. 16-1504, Moritz v. Woods
state-court adjudication of Moritz’s claims, and remanded the case to the district court to
consider the remaining claims in Moritz’s habeas petition. Moritz, 525 F. App’x at 287.
On remand, the district court again granted habeas relief, but this time on Moritz’s
Confrontation Clause claim. Moritz v. Woods, No. 2:07-CV-15369, 2016 WL 1106896 (E.D.
Mich. Mar. 22, 2016). The district court, purportedly applying AEDPA deference, examined the
state court record and held that “[t]he Michigan Court of Appeals’ determination that the
prosecution made a good faith effort to obtain Cooper’s presence at trial was unreasonable”
because “[t]he state made absolutely no effort to obtain Cooper’s presence at [Moritz’s] trial.”
Id. at *5. In support, the district court noted that Cooper was incarcerated only “39 miles and
about 45 minutes away” from the state trial court, and Michigan law provided a habeas
mechanism through which the trial court could have obtained Cooper’s live testimony. Ibid.
In addition, the district court held that the trial court’s error was not harmless. Its
analysis of this issue is somewhat puzzling, however. Earlier in its opinion, the district court
drew attention to the footnote contained within the Michigan Court of Appeals’ decision that
chastised the trial court for failing to make a more thorough record of the “logistical difficulties”
involved in bringing Cooper to testify. Id. at *4–5. Language in that same footnote also
expressly held that any failure by the trial court on this point was harmless because “the jury
acquitted the defendant of the crimes to which Cooper was a witness.” Ibid. When the district
court conducted its “harmless error” analysis, however, it made little reference to this footnote.
Instead, it largely relied on the Supreme Court’s decision in O’Neal v. McAninch, 513 U.S. 432(1995), concluding that where a federal court judge in a habeas proceeding is in “grave doubt”
about whether a trial error had a substantial or injurious effect upon the jury’s verdict, the
petitioner must win. Id. at *6.
-6-
No. 16-1504, Moritz v. Woods
In support of these feelings of doubt, the district court frequently cited the trial record. It
noted that Cooper’s preliminary-examination transcript included testimony that did pertain to
several of the counts that formed the basis for Moritz’s conviction, contradicting the holding of
the Michigan Court of Appeals. In addition, it noted that state prosecutors made reference to
Cooper’s testimony in closing argument, occasionally using Cooper “as an impartial, tie-
breaking witness” to help the jury choose between the testimony of Moritz and his estranged
wife. Id. at *7. Given that the jury “deliberated for three days and was at one point deadlocked,”
the district court concluded that “[t]he jury might very well have reached a different conclusion
regarding petitioner’s guilt if Mr. Cooper testified before them in person.” Ibid. Thus, the
district court held that the Confrontation Clause error was not harmless and that habeas relief
was proper. Although habeas relief was conditionally granted on Confrontation Clause grounds,
the district court went on to reject the remainder of the claims in Moritz’s habeas petition as
meritless.
The State brings this timely appeal of the district court’s grant of habeas relief.
II
As the district court properly noted, Moritz’s Confrontation Clause claim is subject to
review under AEDPA. This statute “sharply limits the circumstances in which a federal court
may issue a writ of habeas corpus to a state prisoner whose claim was ‘adjudicated on the merits
in State court proceedings.’” Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (citations
omitted). So long as the state prisoner’s claim was “adjudicated on the merits” in state court, a
federal court cannot grant habeas relief unless the state-court adjudication resulted in a decision
that was either: (1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States”; or (2) “based on an
-7-
No. 16-1504, Moritz v. Woods
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). It is undisputed that the Michigan Court of Appeals rejected
Moritz’s Confrontation Clause claim on the merits, so the only question before us is whether that
decision meets either of the unreasonableness standards articulated in the statute.
In determining whether a state-court decision is “contrary to” clearly established federal
law, we may look only to the holdings of the Supreme Court, not the dicta. White v. Woodall,
134 S. Ct. 1697, 1702 (2014). A state-court decision is contrary to clearly established federal
law only where the state court “‘applies a rule that contradicts the governing law set forth in
[Supreme Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme
Court precedent].’” Kelly v. Lazaroff, 846 F.3d 819, 831 (6th Cir. 2017) (alterations in original)
(quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). A state-court decision unreasonably
applies federal law when it “identifies the correct governing legal rule . . . but unreasonably
applies it to the facts of the particular state prisoner’s case,” or if it “unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.” Ibid.(citation omitted). In order to grant habeas relief on these grounds, the state court must have
been “objectively unreasonable, not merely wrong; even clear error will not suffice.” Bryan v.
Bobby, 843 F.3d 1099, 1106 (6th Cir. 2016) (citations omitted). Stated succinctly, “[s]imply
misapplying the law is not enough.” Kelly, 846 F.3d at 831.
To show that a state court’s determination of the facts was unreasonable, it is not enough
that the “federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290 (2010). Rather, state-court findings of fact are only unreasonable
-8-
No. 16-1504, Moritz v. Woods
where they are “rebutted by ‘clear and convincing evidence’ and do not have support in the
record.” Pouncy, 846 F.3d at 158 (quoting Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir.
2007)).
In reviewing federal habeas corpus proceedings, we “examine the district court’s legal
conclusions de novo and its factual findings under a ‘clearly erroneous’ standard.” Caver v.
Straub, 349 F.3d 340, 345 (6th Cir. 2003) (citing Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.
1999)). However, “[d]istrict court findings of fact based upon its review of state court records or
written decisions receive plenary review.” Boggs v. Collins, 226 F.3d 728, 736 (6th Cir. 2000)
(citation omitted).
The Michigan Court of Appeals made two holdings that are subject to AEDPA deference:
(1) that the introduction of Cooper’s preliminary-examination transcript did not violate Moritz’s
Sixth Amendment rights; and (2) even if it did, it only amounted to harmless error.
A
The Confrontation Clause of the Sixth Amendment was designed to bar “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.” Crawford v.
Washington, 541 U.S. 36, 53–54 (2004). In writing it, the framers of the Constitution wanted to
ensure that “the accused has an opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face to face with the jury in order that
they may look at him, and judge . . . whether he is worthy of belief.” Barber v. Page, 390 U.S.
719, 721 (1968) (quoting Mattox v. United States, 156 U.S. 237, 242–43 (1895)). An exception
to the Confrontation Clause exists “where a witness is unavailable and has given testimony at
-9-
No. 16-1504, Moritz v. Woods
previous judicial proceedings against the same defendant which was subject to cross-
examination by that defendant.” Id. at 722 (citation omitted).
There is no dispute that Cooper was subject to cross-examination by Moritz in his
preliminary examination. Thus, the only question is whether the Michigan Court of Appeals
reasonably concluded that Cooper was unavailable at trial. As a general rule, “a witness is not
‘unavailable’ for the purposes of the foregoing exception to the confrontation requirement unless
the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Id. at
724–25.
In Barber, the Supreme Court held that this “good-faith effort” requirement was not
satisfied where the prosecution “made absolutely no effort to obtain the presence of [a key
witness] at trial other than to ascertain that he was in a federal prison” some 225 miles away
from the trial court. Id. at 723. The Court noted that prosecutors could almost certainly have
guaranteed his release through a writ of habeas corpus ad testificandum issued by either a state or
federal court. See id. at 724. From the record, the Court said that it appeared that the “sole
reason” the witness was not present to testify in person was because the prosecutors “did not
attempt to seek his presence.” 390 U.S. at 725.2
As the district court noted in its opinion, there are similarities between Barber and
Mortiz’s case. Cooper was incarcerated only 39 miles away from Moritz’s trial, and Michigan
law provided a mechanism through which Cooper could have been produced in order to testify.
Moritz, 2016 WL 1106896 at *5. Further, the record establishes no efforts by the prosecution to
obtain Cooper’s attendance after he was arrested by the Southgate police. See id.2
In light of Barber’s focus on the “prosecutorial authorities,” we take the references in Barber to
“the State” to mean only the prosecution—not other state actors like the trial judge.
-10-
No. 16-1504, Moritz v. Woods
There is a difference between Barber and Moritz’s case, however. In Barber, as well as
its progeny, prosecutors knew about a witness’s potential unavailability before trial. See, e.g.,
Barber, 390 U.S. at 720 (a key witness became unavailable in a seven-month window between a
preliminary hearing and trial); Ohio v. Roberts, 448 U.S. 56, 58–59 (1980) (a key witness
disappeared during a one-year window between a preliminary hearing and trial); Hardy v. Cross,
565 U.S. 65, 66–67 (2011) (a key witness disappeared 26 days before trial). Here, Cooper was
arrested during trial. And the record indicates that his detention caught everyone off guard.3
This difference matters. Unlike the witness in Barber, Cooper was not unavailable to
testify at the moment “solely” because the prosecution made no effort to get him there. Instead,
Cooper was unexpectedly arrested. At this point, the circumstances become distinct enough that
it is uncertain whether the rule from Barber that conditions a court’s unavailability finding on
prosecutorial efforts has any application. This is in part because any effort to obtain Cooper
would have to run through the trial judge, who would either have to issue a habeas writ himself
or stay the trial to await another court’s approval of Cooper’s transfer. See M.C.L. 600.4385(1).
Here, the judge declared his intent to forge on with the nearly complete trial. The real issue is
not prosecutorial efforts but whether case-management concerns can modify the Confrontation
Clause’s general command of live testimony when judging an unavailability finding.
This is a close case. Were we sitting de novo, we might have reached a different
conclusion. Perhaps the Confrontation Clause requires the court to stay the trial or exclude the
prior testimony. But Barber only somewhat supports—rather than dictates—thaat outcome.
Thus, this case presented precisely the kind of determination that Congress, in passing AEDPA,
3
It is not entirely clear precisely when the State became aware of Cooper’s incarceration.
However, the trial court’s discussion of Cooper implies that it was unexpected: “Unfortunately, Mr.
Cooper is indisposed as we know, it sounds like he was picked up by Southgate Police, a probation
violation.”
-11-
No. 16-1504, Moritz v. Woods
left to the reasoned jurists of this nation’s state courts. We hold the difference between Cooper’s
sudden detention and the prosecutorial inaction in Barber sufficient to render the Michigan Court
of Appeals’ decision reasonable for the purposes of AEDPA.
As this issue resolves the case, there is no need to consider whether the Michigan Court
of Appeals was unreasonable in concluding that, even if a Confrontation Clause violation had
occurred, any error would have been harmless.
III
For the foregoing reasons, we REVERSE the decision of the district court and REMAND
for the entry of an order not inconsistent with this opinion.
-12-