Ferensic v. Birkett

• Decision Date: 04 September 2007
• Docket Number: No. 06-2342.,06-2342.
• Citation: 501 F.3d 469
• Parties: Robert FERENSIC, Petitioner-Appellee, v. Thomas BIRKETT, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

501 F.3d 469

Robert FERENSIC, Petitioner-Appellee, v. Thomas BIRKETT, Respondent-Appellant.

No. 06-2342.

United States Court of Appeals, Sixth Circuit.

Argued: June 8, 2007.

Decided and Filed: September 4, 2007.

ARGUED: Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellant. Domnick J. Sorise, Detroit, Michigan, for Appellee. ON BRIEF: Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellant. Domnick J. Sorise, Detroit, Michigan, for Appellee.

Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined. McKEAGUE, J. (pp. 484-93), delivered a separate dissenting opinion.

OPINION

RONALD LEE GILMAN, Circuit Judge.

A Michigan state jury convicted Robert Ferensic in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications made by the victimized couple, Alexander and Angie Kostoff. Ferensic appealed, arguing among other things that (1) the trial court had violated his right to present a defense by preventing two of his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John, who had observed the robbers prior to their entering the Kostoffs' home—from testifying, and (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses were allowed to testify. The Michigan Court of Appeals upheld Ferensic's convictions, essentially reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the actions of the trial judge or of defense counsel, did not prejudice Ferensic.

Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals's ruling on each ground constituted an unreasonable application of clearly established federal law, the district court conditionally granted Ferensic's petition. The Warden now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

The Michigan Court of Appeals laid out the following relevant facts and procedural history of this case in People v. Ferensic, No. 221806, 2001 WL 865089, at *1-2 (Mich.Ct.App. July 31, 2001):

The victims, an elderly, married couple, identified defendant as one of two perpetrators who broke into their house and robbed them of money and other valuables at gunpoint. After describing defendant to the investigating officers, the victims met with a police sketch artist, who sketched composites of the perpetrators based on the victims' descriptions. One of the officers in charge of the investigation recognized defendant, a former police officer, and defendant's roommate from these sketches, and compiled a photographic array that included defendant. Only one of the victims was able to identify defendant from the photographic array. However, both victims identified defendant from a live lineup and at defendant's preliminary examination. The victims' identification of defendant, along with the officer's testimony that he recognized the two individuals based on the sketch artist's renderings, was the only evidence that defendant was involved in the offenses.

. . .

In denying the prosecution's relevant motion in limine six months prior to defendant's trial, the court ruled that the expert [Dr. Shulman] would be permitted to testify so long as defendant furnished a copy of the expert's report to the prosecution two months before trial. In violation of that order, defendant mailed a copy of the expert's report to the prosecution only eleven days before trial. Following the parties' opening statements, in which each party emphasized that the identity of the perpetrators was the central issue in the case and in which defendant repeatedly told the jurors that defendant would present expert testimony on the inherent unreliability of eyewitness testimony, the prosecution successfully moved to exclude defendant's expert witness from testifying. The court reasoned that the prosecution was unable to retain its own expert witness on identification without delaying the trial, and that although defendant mailed the report on the same day he received it, it had been his responsibility to chase up the expert to ensure compliance with the order.

(Footnote omitted.) Later in the trial, after the defense had rested, the court also denied Ferensic's separate motion for a brief adjournment to allow time for St. John to arrive at the courthouse and take the stand.

Both Dr. Shulman and St. John testified during an evidentiary hearing held by the district court in connection with Ferensic's habeas petition. (Ferensic's trial counsel also was a witness at the hearing, but his testimony is not directly relevant to this appeal.) The court provided the following summary of their testimony:

Danny St. John testified at the evidentiary hearing that he did not know Petitioner and never saw him before. Similar testimony at trial might have caused the jurors to question the Kostoffs' testimony even though Mr. St. John could describe only one of the two men he saw. In addition, his description of one of the robbers as having black curly hair was consistent with the original description given by Mr. and Mrs. Kostoff, which they denied at trial.

. . .

Dr. Shulman testified at the evidentiary hearing that several factors, such as divided attention, stress, passage of time, photo arrays, collaboration of witnesses, and social conformity, affect memory. He noted that crime produces stress which makes high resolution (detailed) memory of faces difficult. He opined that the guns carried by the robbers in this case were the most distracting factor, because a person's attention is directed to a weapon. "Sticky attention" to a weapon reduces the ability to recall details and leads to inaccurate identification, according to Dr. Shulman. In addition, gaps in memory are filled in by world knowledge, post-event information, inferences, and talking to other witnesses. Eyewitnesses find it difficult to disregard these influences on memory. Dr. Shulman also stated that there is no statistical relationship between a witness's level of confidence in his or her identification and the accuracy of memory.

II. ANALYSIS

A. Standard of review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a federal court

may not grant a writ of habeas [corpus] to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," . . . or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings."

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28 U.S.C. § 2254(d)). This standard requires the federal courts to give considerable deference to state-court decisions. Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998) ("[AEDPA] tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called unreasonable.") (quotation marks omitted).

The first line of analysis under AEDPA focuses on the consistency of the state-court decision with existing federal law. A state-court decision is considered "contrary to . . . clearly established Federal law" if it is "diametrically different, opposite in character or nature, or mutually opposed." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis and quotation marks omitted). Alternatively, to be found an "unreasonable application of . . . clearly established Federal law," the state-court decision must be "objectively unreasonable," not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495. If a state-court decision meets either of these two "preconditions" for habeas relief—thereby establishing a constitutional error—the reviewing federal court must still determine whether the error is harmless within the meaning of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, ___ U.S. ___, 127 S.Ct. 2321, 2327-28, 168 L.Ed.2d 16 (2007) (noting that AEDPA "sets forth a precondition to the grant of habeas relief . . . , not an entitlement to it," and that "in § 2254 proceedings a [federal] court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht"). Brecht applies "whether or not the state appellate court recognized the error and reviewed it for harmlessness under the `harmless beyond a reasonable doubt' standard set forth in Chapman [v. California], 386 U.S. 18[, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)]." Id. at 2328.

The second line of analysis under AEDPA examines the findings of fact made by the state courts. AEDPA requires federal courts to accord a high degree of deference to such factual determinations. "A federal court is to apply a presumption of correctness to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is offered to rebut this presumption. The appeals court gives complete deference to the federal district court's and state court's findings of fact supported by the evidence." McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004) (citations omitted).

B. The Michigan Court of Appeals's decision

The Michigan Court of Appeals was the last state court to review Ferensic's claims during postconviction proceedings. Because its review was on the merits, we must apply AEDPA deference to that decision. The Court of Appeals first held that ...