Desai v. Booker

• Decision Date: 15 August 2008
• Docket Number: No. 07-1684.,07-1684.
• Parties: Jasubhai K. DESAI, Petitioner-Appellee, v. Raymond BOOKER, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

538 F.3d 424

Jasubhai K. DESAI, Petitioner-Appellee, v. Raymond BOOKER, Respondent-Appellant.

No. 07-1684.

United States Court of Appeals, Sixth Circuit.

Argued: July 22, 2008.

Decided and Filed: August 15, 2008.

ARGUED:

Janet A. VanCleve, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Matthew F. Leitman, Miller, Canfield, Paddock & Stone, Troy, Michigan, for Appellee.

ON BRIEF:

Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. Matthew F. Leitman, Miller, Canfield, Paddock & Stone, Troy, Michigan, F. Martin Tieber, Law Office of F. Martin Tieber, Saginaw, Michigan, for Appellee.

Before: SUTTON and COOK, Circuit Judges; ROSE, District Judge.^*

OPINION

SUTTON, Circuit Judge.

A state-court jury convicted Jasubhai Desai of first-degree murder, and the trial court sentenced him to life imprisonment. In affirming his conviction, the Michigan court of appeals rejected Desai's claim that the admission of a hearsay statement of a co-defendant violated his rights under the Confrontation Clause of the Sixth (and Fourteenth) Amendment. In reviewing Desai's federal habeas application, the district court came to a contrary conclusion and ordered the State to release him from custody or grant him a new trial.

In defending the district court's decision, Desai does not claim that he is currently being held in custody in violation of the Confrontation Clause, given the twin realities that his co-defendant's statement was non-testimonial and that the Clause does not apply to non-testimonial statements. See Davis v. Washington, 547 U.S. 813, 823-26, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). He instead makes the following two-pronged attack on his conviction. Prong one: the state courts unreasonably applied Supreme Court precedent at the time of his trial and during direct review, because the Confrontation Clause at that time covered non-testimonial statements, see Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and the state courts misapplied Roberts. Prong two: in accordance with the Antiterrorism and Effective Death Penalty Act (AEDPA) and Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), Davis should not be applied retroactively to defeat his claim. Because Congress has given us authority to release from custody only inmates who are currently being held in violation of the Constitution, because that is not the case with respect to Desai and because neither AEDPA nor Teague otherwise advances Desai's application for relief, we reverse.

I.

On November 7, 1983, James Osborn, an officer with the Woodhaven, Michigan, police department found the lifeless body of Anna Marie Turetzky in the front seat of a car in the parking lot of a Best Western Motel. Someone had strangled her.

In the early 1970s, Turetzky began working as a nurse in a medical clinic with Desai, a medical doctor. In 1976 or so, the two formed a partnership to build a clinic in Trenton, Michigan. As the office manager for the new clinic, Turetzky recruited new patients, handled public relations, oversaw personnel and managed the clinic's finances. By all accounts, the relationship between Desai and Turetzky, while financially beneficial, was strained and at times physically violent. In an effort to reduce the tension, Turetzky agreed to work out of the Trenton clinic, and Desai agreed to work out of a new clinic the partnership opened in Monroe, Michigan.

The new arrangement apparently did not solve the problem, and the conflict, including physical threats and threats of litigation, continued. In September 1983, Desai and Turetzky entered into an agreement in which Desai agreed that he would repay his portion of the money that the partnership had borrowed from Turetzky for the creation of the Monroe clinic. Turetzky was last seen alive on November 3, 1983.

In 1988, after an initial investigation of the crime came up empty, Lawrence Gorski told Woodhaven police officers that approximately six weeks after the murder, Stephan Adams, an employee in the Desai/Turetzky medical clinic, told him that he murdered Turetzky. After Gorski testified in state grand jury proceedings and hearings in 1994 and 1995, the Wayne County Prosecutor charged Adams and Desai on the theory that Desai had hired Adams to kill Turetzky in order to become the sole owner of the businesses.

Desai and Adams were tried jointly in September 2001 before separate juries. During the trial, the juries heard about the rocky, and at times physically violent, relationship between Desai and Turetzky, the threats of litigation in early 1983 by Desai to dissolve the partnership, an inquiry from Desai to Daniel Landau less than one year before the murder about whether Landau was interested in earning money as a "hitman," JA 473, and Adams' confession to Gorski.

The Desai jury convicted him of first-degree murder, and the Adams jury failed to reach a verdict. In view of the hung jury and in exchange for Adams' nolo contendere plea to the charge of solicitation to do great bodily harm in an unrelated case, the prosecution dismissed the remaining charges against Adams and did not retry him.

The court sentenced Desai to life imprisonment without the possibility of parole. Desai appealed to the Michigan court of appeals, which affirmed his conviction, People v. Desai, No. 238210, 2003 WL 22515292, at *1 (Mich.Ct.App. Nov.6, 2003), and the Michigan Supreme Court denied leave to appeal, People v. Desai, 471 Mich. 872, 685 N.W.2d 669 (2004).

On November 4, 2005, Desai filed a habeas corpus petition in federal court challenging, among other aspects of the trial, the state court's admission of the hearsay statement against him on the ground that it violated the Confrontation Clause. The court granted the petition for four related reasons: Adams' statement amounted to non-testimonial hearsay (because it was given to a friend); the Supreme Court's intervening decision, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), applied only to testimonial hearsay statements; the Supreme Court's decision in Roberts remained the established law with respect to non-testimonial hearsay statements; and the Michigan state courts unreasonably applied Roberts in permitting the government to introduce Adams' statement.

II.

"In all criminal prosecutions," the Confrontation Clause says, "the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. When Desai objected to the admission of Adams' hearsay statement during the state-court trial, Supreme Court precedent established that non-testimonial hearsay statements (like Adams') implicated a defendant's confrontation rights. See Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Under the Roberts test, Adams' non-testimonial hearsay statement, like an out-of-court testimonial statement, could be admitted only if the individual was unavailable to testify and if the statement bore "adequate indicia of reliability." Id. (internal quotation marks omitted). A statement possessed "adequate indicia of reliability," the Court explained, if it fit within a "firmly rooted" hearsay exception or if it offered other "particularized guarantees of trustworthiness." Id. (internal quotation marks omitted).

Roberts, however, is no longer good law in two respects. Since Desai's trial, the Court has overruled the Roberts test for admitting testimonial hearsay, requiring the prosecution (with a few historical exceptions not applicable here) either to establish that the defendant has had a chance to confront the declarant or to forego relying on the out-of-court statement at all. See Crawford, 541 U.S. at 68, 124 S.Ct. 1354. And the Confrontation Clause no longer applies to non-testimonial statements. See Davis, 547 U.S. at 823-26, 126 S.Ct. 2266. The second change in law, in particular, presents a challenge for Desai's petition. He concedes that Adams' statement, which was made to a friend (Gorski), amounts to a non-testimonial statement, see United States v. Gibson, 409 F.3d 325, 338 (6th Cir.2005), and he concedes that the Confrontation Clause no longer applies to non-testimonial statements. All of which prompts this question: May a habeas applicant obtain relief on the basis of a state court's allegedly unreasonable application of a Supreme Court precedent (Roberts) that no longer is good law (see Crawford/Davis)?

No, we conclude, for several reasons. First, before and since the passage of AEDPA, the point of the great writ has been to release individuals from custody or other equivalent consequences of a conviction because they are currently being held in violation of their constitutional rights. As the first subsection of the statute says:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (emphasis added). By its terms, § 2254 relief thus is available only to state prisoners who currently are being held in violation of an existing constitutional right, not to inmates who at one point might have been able to show that a since-overruled Supreme Court or lower court precedent would have granted them relief. The same is true with respect to the other statutory vehicle for challenging one's custody by a State—28 U.S.C. § 2241(c)(3). "The writ of habeas corpus," it says, "shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States."

Second, as a practical matter, correcting violations of extant constitutional standards is all that the statute ever could meaningfully require of a State—at least when it comes to a constitutional challenge to the admission...