Vasquez v. Jones

• Decision Date: 24 July 2007
• Docket Number: No. 04-2274.,04-2274.
• Citation: 496 F.3d 564
• Parties: Emilio VASQUEZ, Petitioner-Appellant v. Kurt JONES, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

496 F.3d 564

Emilio VASQUEZ, Petitioner-Appellant v. Kurt JONES, Warden, Respondent-Appellee.

No. 04-2274.

United States Court of Appeals, Sixth Circuit.

Argued: April 18, 2007.

Decided and Filed: July 24, 2007.

ARGUED: Bridget M. McCormack, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellant. Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Bridget M. McCormack, Michigan Clinical Law Program, Ann Arbor, Michigan, for Appellant. Janet A. VanCleve,

Office of the Attorney General, Lansing, Michigan, for Appellee.

Before: ROGERS and COOK, Circuit Judges; and GWIN, District Judge.^*

AMENDED OPINION

COOK, Circuit Judge.

Emilio Salomon Vasquez appeals the district court's denial of his habeas corpus petition. We reverse and remand with instructions to grant the petition.

I. Facts and Procedural History

In 1995, a dispute at a block party between Deondre Byrd and William Taylor escalated into a shootout in which an innocent bystander, Tamara Stewart, was killed. Vasquez told police investigating the crime that when the melee erupted, he grabbed a .22 caliber rifle from William Taylor and fired it in self-defense. No weapons were recovered from the scene, but forensics investigators determined that at least three weapons had been fired in the shootout: a 9-millimeter handgun, a .38 caliber rifle, and a .22 caliber rifle. They determined that the 9-millimeter fired the fatal shot. Michigan charged petitioner Emilio Solomon Vasquez and a co-defendant, Joe Olive, in connection with the shooting. At a preliminary examination hearing, Demond Brown testified that he saw Vasquez firing a handgun during the shootout; based on this testimony, the state court bound Vasquez over for trial.

At trial, Vasquez repeated the self-defense story he had told investigators. Demond Brown did not appear at trial, so the prosecution sought to introduce the transcript of his preliminary examination testimony under the hearsay exception for the former testimony of an "unavailable" declarant. See Mich. R. Evid. 804(b)(1). The trial court satisfied itself that the state had used due diligence to procure Brown for trial and therefore deemed Brown "unavailable" under Mich. R. Evid. 804(a)(5). Vasquez's trial counsel (1) objected that no one — that is, Vasquez's former lawyer — had cross-examined Brown about his prior criminal convictions, which bear on his character for truthfulness; and (2) proffered that in a post-preliminary-examination interview with defense counsel, Brown recanted his preliminary examination testimony and disclosed that the prosecution had promised him leniency on an embezzlement charge in exchange for his testimony against Vasquez. The prosecution responded that the defense had the motive and opportunity to conduct this cross-examination at the preliminary examination hearing, so the testimony should be admitted under Rule 804(b)(1).

The trial court admitted Brown's hearsay testimony and ruled that defense counsel could not impeach Brown with his prior convictions, invoking Mich. R. Evid. 609(a), which reads: "For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination...." The trial court reasoned that the prior-crimes impeachment would not be presented "during cross-examination" — that is, because Brown failed to appear, there would be no "cross-examination" within the meaning of Rule 609.

Defense counsel insisted that the court's reading of "during cross-examination" was "hyper literal" and that foreclosing this impeachment would violate Vasquez's Confrontation Clause rights. The prosecution continued to argue that the opportunity to question Brown at the preliminary examination hearing was all that the Confrontation Clause required, and that it would not be fair to let the defense refer to Brown's past convictions because Brown would not have the chance to explain the circumstances and rehabilitate his own credibility. Even though the court acknowledged that the voluminous discovery made it unrealistic to expect defense counsel to confront a witness with his criminal record at the preliminary examination stage, and even though the court questioned whether defense counsel's motive to question witnesses at that early stage might be different than at trial, it concluded that defense counsel's motive was "close enough" and barred the prior-crimes impeachment. Vasquez was convicted, unsuccessfully sought relief in state court on several claims, unsuccessfully petitioned the district court for habeas relief, and then brought this appeal.

II. Analysis

This court "review[s] the legal conclusions of the district court sitting in habeas de novo and the factual findings of both the state trial and appellate courts for clear error." Hamilton v. Morgan, 474 F.3d 854, 857-58 (6th Cir.2007) (citing Brumley v. Wingard, 269 F.3d 629, 637-38 (6th Cir.2001)).

A. Admissibility of the Demond Brown Transcript Under Ohio v. Roberts

Vasquez asserts that the Confrontation Clause, as interpreted by the Supreme Court in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), required the state court to exclude Brown's hearsay transcript testimony because it neither fell within a firmly-rooted hearsay exception nor contained particularized guarantees of trustworthiness. But Vasquez waived his Roberts claim regarding the admission of Brown's testimony by not presenting it to the district court in his habeas petition. See, e.g., Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Brown v. Marshall, 704 F.2d 333, 334 (6th Cir.1983) (per curiam). Moreover, Vasquez procedurally defaulted the Roberts claim by failing to exhaust it in the state courts, and he has never attempted to show cause and prejudice sufficient to excuse the default. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Vasquez's citation to Roberts in a footnote in the ineffective-assistance section of his direct-appeal brief did not "fairly present[ ]" this claim to the state courts. See, e.g., Newton v. Million, 349 F.3d 873, 877 (6th Cir.2003). Although Vasquez need not "cite book and verse on the federal constitution" to satisfy the exhaustion requirement, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (internal quotations omitted), his sporadic and undeveloped allusions to Roberts do not suffice. Therefore, we decline to entertain Vasquez's Roberts claim.¹

B. Frustration of Vasquez's Attempts To Impeach Demond Brown's Hearsay Testimony

Vasquez also argues that the state trial court violated his Confrontation Clause rights by frustrating his attempts to impeach Demond Brown's hearsay testimony.

1. Procedural Default

Over the course of this litigation, Vasquez has complained of his inability to impeach Demond Brown's hearsay testimony with (1) Brown's prior criminal record, which bears on his character for truthfulness; and (2) statements from a post-preliminary-examination interview between Brown and defense counsel in which Brown recanted his preliminary examination testimony and disclosed that the prosecution promised him leniency on an embezzlement charge in exchange for his testimony against Vasquez. Vasquez has consistently raised the issue of Brown's criminal record, but as explained below, he did not properly raise the recantation and quid pro quo issues in state court. The only impeachment claim properly before the court concerns Brown's prior criminal history.

Vasquez's direct appeal omitted the recantation and quid pro quo issues. In his motion for a new trial, he argued that he could not have discovered the basis for these claims in time for trial because Brown absconded. But according to the Michigan trial court's order denying his new-trial motion, this evidence was not "newly discovered." The Michigan Court of Appeals and Supreme Court both denied an application for leave to appeal without explanation, so this court "looks through" these decisions to the last reasoned state-court decision, see Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), and it is clear that Vasquez's failure to bring the claims in compliance with Michigan procedural rules "was at least a `substantial basis'" for that court's decision denying relief. See McBee v. Grant, 763 F.2d 811, 813 (6th Cir.1985) (citing Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir.1980)). We thus decline to address these procedurally defaulted claims.²

2. Standard of Review

When a prisoner who filed his habeas petition after AEDPA's effective date properly raised a claim in state court, yet that court did not review the claim's merits, AEDPA deference does not apply, and the federal habeas court reviews legal issues de novo. See, e.g., Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001). But complexity arises here because although the state court adjudicated Vasquez's Confrontation Clause claim, it never addressed the constitutional issue — instead, it simply held that any alleged error was harmless. See People v. Vasquez, No. 195915, 1998 WL 1991270, at *1 (Mich.Ct.App. June 26, 1998) (per curiam). Although Wiggins v. Smith could be read to suggest that AEDPA deference applies only to issues that the state court actually considers on the merits,³ this circuit applies "modified AEDPA deference" in circumstances like this where the state court adjudicated the claim but with little analysis on the substantive constitutional issue. See, e.g., Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005); Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir.2005). Under this standard, the court conducts a "careful" and "independent...