Danner v. Motley

• Decision Date: 11 May 2006
• Docket Number: No. 04-5363.,04-5363.
• Citation: 448 F.3d 372
• Parties: James A. DANNER, Petitioner-Appellant, v. John MOTLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

448 F.3d 372

James A. DANNER, Petitioner-Appellant, v. John MOTLEY, Warden, Respondent-Appellee.

No. 04-5363.

United States Court of Appeals, Sixth Circuit.

Submitted: July 21, 2005.

Decided and Filed: May 11, 2006.

ON BRIEF: Brian T. Judy, Cabinet for Health and Family Service, Office of Legal Services, Frankfort, Kentucky, for Appellee. James A. Danner, West Liberty, Kentucky, pro se.

Before: GIBBONS and COOK, Circuit Judges; PHILLIPS, District Judge.^*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

James A. Danner was convicted in November 1996 in Kentucky state court on two counts of first degree sodomy and one count of first degree rape and was sentenced to twenty-four years imprisonment on each count to run concurrently. His conviction was affirmed by the Kentucky Supreme Court. On April 28, 2003, Danner filed a pro se petition for a writ of habeas corpus in United States District Court for the Eastern District of Kentucky. The district court denied the petition but granted a certificate of appealability on two issues. Danner now appeals. For the following reasons, we affirm the district court's decision to deny the writ of habeas corpus.

I.

Petitioner Danner was indicted on February 8, 1996, by a Boyd Circuit Court grand jury on two counts of first degree sodomy and one count of first degree rape. The charges stemmed out of Danner's sexual abuse of his daughter, Shonda. According to evidence presented at trial, Danner sexually abused her from 1986 to 1990 while she was between the ages of five and ten years old. By the time Danner was brought to trial, Shonda was fifteen years of age.

Because the Commonwealth felt that Shonda would have difficulty testifying in the presence of Danner, on October 30, 1996, two days prior to the commencement of trial, the prosecution made a motion pursuant to Kentucky Revised Statute § 421.350 to allow Shonda to testify via closed circuit television. Kentucky Revised Statute § 421.350 states:

The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.

Ky.Rev.Stat. § 421.350(2). The statute applies to prosecutions where "the act is alleged to have been committed against a child twelve (12) years of age or younger, and applies to the statements or testimony of that child or another child who is twelve (12) years of age or younger who witnesses one of the offenses included in this subsection." Id. § 421.350(1). The defense opposed the motion, arguing that (1) because Shonda was fifteen years of age at the time of the trial, she was too old to be covered by the statute, and (2) the prosecution had not made a strong enough showing of necessity pursuant to Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), to make the testimony via closed circuit television constitutionally permissible.

The trial court conducted an in camera interview with Shonda in order to determine whether the compelling need required by § 421.250 existed to allow Shonda to testify via closed circuit television. Following the in camera interview, the trial court ruled that compelling need existed for the use of electronic equipment. In so finding, the trial court stated:

The Court finds that due to factors which I cannot define but yet go much further than anxiety or nervousness, as referred to in the various cases that have been cited, that compelling need exists for the use of the electronic equipment. And although I'm not making this decision simply for the witness's convenience, or to prevent her from being nervous or anxious, as that no doubt happens to all witnesses, the Court is convinced that due to the nature of the testimony and the age of the witness that face-to-face arrangement would inhibit the witness to a degree that the jury's search for the truth would be clouded. The Court is strongly of the opinion that the electronic equipment . . . which operates in complete conformity with Kentucky Revised Statute 421.350 is sufficient to facilitate the presentation of evidence while at the same time preserving the defendant's rights to confront the Commonwealth's witnesses pursuant to the Sixth Amendment. So the compelling need is not based on convenience or comfort level of the witness so much as it is the need to be able to disclose the testimony so that the jury itself can determine whether they want to accept or reject same or what weight should be given.

The case proceeded to trial on November 6, 1996. On November 8, 1996, the jury returned a verdict finding Danner guilty of both counts of first degree sodomy and one count of first degree rape. Danner was sentenced to twenty-four years of imprisonment on each count to run concurrently. Danner appealed his conviction, and the Kentucky Supreme Court affirmed his conviction on February 19, 1998. Danner v. Commonwealth, 963 S.W.2d 632 (Ky.1998). The Supreme Court denied certiorari on November 16, 1998. Danner v. Kentucky, 525 U.S. 1010, 119 S.Ct. 529, 142 L.Ed.2d 439 (1998). Danner unsuccessfully pursued various forms of post-conviction relief in Kentucky state court, receiving his last denial of relief from the Kentucky Supreme Court on December 11, 2002.

On April 28, 2003, Danner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in United States District Court for the Eastern District of Kentucky. In the petition, he raised six claims: (1) the trial court erred in permitting the victim to testify via closed circuit television; (2) his Confrontation Clause rights under the Sixth Amendment were violated by the use of the closed circuit television procedure; (3) he received ineffective assistance of trial counsel due to counsel's failure to investigate his case or prepare a defense; (4) the trial court denied him a fair trial by denying his request for an expert; (5) the trial court erred in admitting character evidence which was used to impeach Danner; and (6) the trial court erred in admitting a witness's testimony that addressed the ultimate issue in the case. On November 18, 2003, a magistrate judge issued a report recommending that Danner's petition be denied. On March 9, 2004, the district court adopted the magistrate judge's recommendation and denied Danner's habeas petition in its entirety. The district court nonetheless granted a certificate of appealability on the following two issues: (1) whether the trial court erred in granting the Commonwealth's motion for the minor rape victim to testify via closed circuit television, and (2) whether such testimony violated the defendant's constitutional rights under the Confrontation Clause. On March 28, 2004, Danner filed a timely notice of appeal.

II.

The first issue on which a certificate of appealability was granted was whether the trial court erred in granting the Commonwealth's motion for the minor rape victim to testify via closed circuit television. On appeal, Danner argues that the prosecution did not make the proper showing pursuant to Kentucky Revised Statute § 421.350, and therefore, the trial court erred in granting the Commonwealth's motion. It is unnecessary for this court to engage in an inquiry into whether the trial court's ruling was proper under § 421.350, as the decision of the state court, even if erroneous under the Kentucky statute, is purely a matter of state law. Because errors of state law are not the concern of a federal court reviewing a habeas petition, we need not review the decision. See Estelle v. McGuire, 502 U.S 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). As a result, we affirm the district court's denial of habeas relief on this issue.

The second issue on which a certificate of appealability was granted is whether the trial court's decision to allow the minor victim to testify via closed circuit television violated Danner's constitutional rights under the Confrontation Clause of the Sixth Amendment. Danner argues that the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not apply and that the standard of review we should employ on this claim is pre-AEDPA de novo review because no state court reviewed his constitutional challenge on the merits. We agree. The AEDPA standard of review applies only to "any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). In this case, Danner objected to the use of closed circuit television for the victim's testimony on the ground that this method of testifying violated his constitutional right to confront his accuser pursuant to the Sixth Amendment. However, the trial court did not review this claim. It concluded that the closed circuit television procedure did not violate the Sixth Amendment per se, but confined its analysis of whether to apply that procedure in this...