Miskel v. Karnes
| Decision Date | 24 January 2005 |
| Docket Number | No. 03-3426.,03-3426. |
| Citation | 397 F.3d 446 |
| Parties | Traci MISKEL, Petitioner-Appellant, v. James A. KARNES and Dwayne Maynard, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Stephen E. Palmer, Yavitch & Palmer, Columbus, Ohio, for Appellant. Lara N. Baker, City Prosecutor's Office for the City of Columbus, Columbus, Ohio, for Appellees. ON BRIEF: Stephen E. Palmer, Yavitch & Palmer, Columbus, Ohio, R. William Meeks, Samuel H. Shamansky, Columbus, Ohio, David H. Thomas, Law Firm of R. William Meeks, Columbus, Ohio, for Appellant. Lara N. Baker, City Prosecutor's Office for the City of Columbus, Columbus, Ohio, for Appellees.
Before: KEITH, CLAY, and BRIGHT, Circuit Judges.*
Petitioner Traci Miskel appeals the district court's denial of her petition for a writ of habeas corpus under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Petitioner, who was convicted of driving while having a breath alcohol concentration of 0.10 percent or more, in violation of ohio Rev. Code § 4511.19(A)(3) (1998),1 challenges the trial court's decisions to prohibit cross examination and the presentation of expert testimony on whether the type of breath testing machine used to test Petitioner is generally reliable. Specifically, she asserts that the trial court's rulings on these issues violated her Sixth Amendment rights to confrontation and compulsory process and her Fourteenth Amendment rights to present a complete defense and to have the state prove each element of the offense beyond a reasonable doubt.2 For the following reasons, we AFFIRM the district court's denial of the writ.
On September 7, 1998, the state of Ohio charged Petitioner Traci Miskel with Operating a Motor Vehicle While Under the Influence ("OMVI"), in violation of ohio Rev. Code § 4511.19(A)(1) (1998)3, Operating a Motor Vehicle With a Prohibited Concentration of Alcohol ("OMVI per se"), in violation of § 4511.19(A)(3) (1998), and speeding, in violation of ohio Rev. Code § 4511.21(C). A jury in Franklin County Municipal Court convicted Petitioner of OMVI per se and speeding but acquitted her of OMVI. The sole elements of OMVI per se are (1) operating a vehicle (2) while having "a concentration of [0.10 grams] or more by weight of alcohol per 210 liters of ... breath."4 ohio Rev. Code § 4511.19(A)(3). A traditional OMVI charge, by contrast, requires the prosecution to prove that the defendant was in fact under the influence while driving; the defendant's breath alcohol concentration ("BAC") is not an element of OMVI, but it creates a rebuttable presumption that he was under the influence. § 4511.19(A)(1); State v. Vega, 12 Ohio St.3d 185, 465 N.E.2d 1303, 1307-1308 (1984).
During the trial, at which Respondent the Honorable Dwayne Maynard presided, Petitioner sought to cross examine the police officers who performed her breath test, Officers Robert Wetzel and Robert McKelvey, on whether the device they used to measure Petitioner's BAC, the BAC Verifier, is accepted by the scientific community as generally reliable. Petitioner also proffered the expert testimony of Dr. Henry Shamansky, who would testify that the BAC Verifier has come under criticism within the scientific community. Specifically, Petitioner sought to show that the BAC Verifier is susceptible to interference from radio waves and that its conversion ratio from breath alcohol content to blood alcohol content has come into question among scientists.
Judge Maynard denied both requests on the grounds that the general reliability of the BAC Verifier was not a relevant issue in the trial. Judge Maynard based this ruling on the Ohio Supreme Court's decision in State v. Vega, 12 Ohio St.3d 185 465 N.E.2d 1303 (1984), in which the court held that "the accused may not make a general attack upon the reliability and validity of the breath testing instrument." Id. at 1308. The Vega holding, however, expressly permitted cross examination and direct evidence as to whether the defendant was in fact under the influence of alcohol; whether the specific breath testing instrument used on the defendant was reliable; and whether the officer who operated the instrument was qualified to perform the test. Id. at 1307. In Vega, the court rejected the defendant's claim that the Sixth and Fourteenth Amendments guaranteed him the right to challenge a breath testing machine's general reliability. Id. at 1307-1308. Consistent with Vega, the trial court in this case permitted Petitioner to thoroughly cross examine officers Wetzel and McKelvey as to their qualifications and as to whether they conducted the various performance checks on the machine mandated by the state's health department, which is charged with selecting breath testing machines and assuring their reliability. See Ohio Admin. Code §§ 3701-53-01 et seq.
On appeal to the Ohio Court of Appeals for the Tenth District, Petitioner asserted that Judge Maynard's decision to preclude a foray into the general reliability of the BAC Verifier was a violation of her Sixth Amendment rights to confrontation and compulsory process and her Fourteenth Amendment rights to present a complete defense and to be convicted only upon proof beyond a reasonable doubt. The appeals court acknowledged that Vega involved a traditional OMVI charge — where the defendant's BAC is critical evidence, but not an element of the crime — but concluded that the case was nevertheless controlling in Petitioner's OMVI per se trial and affirmed her conviction. State v. Miskel, No. 99AP-482, 2000 WL 311920, at *2 (Ohio Ct.App. Mar. 28, 2000) (unpublished opinion). Only a few years before Petitioner's appeal, the appeals court had applied Vega to an OMVI per se case. See City of Columbus v. Duling, No. 96APC07-859, 1997 WL 142502 (Ohio Ct.App. Mar. 31, 1997) (unpublished opinion), appeal denied, 79 Ohio St.3d 1482, 683 N.E.2d 787 (1997). In Petitioner's case, the appeals court reasoned that it was constrained to do so again. Miskel, supra.
The Supreme Court of Ohio dismissed Petitioner's appeal as not involving any substantial constitutional question and, on February 1, 2001, she filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Southern District of Ohio. It is the district court's denial of the writ that Petitioner now appeals. As a result of a stay of execution of her sentence during the appeals and habeas process, Petitioner has not served any of the sentence, to wit, 180 days in the Franklin County jail, 177 days suspended for 1 year of probation, and 3 days in an alcohol rehabilitation program. J.A. at 6. Nevertheless, Petitioner is in "custody" within the meaning of 28 U.S.C. § 2254 and therefore has standing to bring this habeas action. See McVeigh v. Smith, 872 F.2d 725, 727 (6th Cir.1989) () (citing Hensley v. Municipal Court, 411 U.S. 345, 348-49, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973)). Finally, we note that Petitioner did not object to the magistrate judge's recommendation that the only proper respondent is Judge Maynard; nor does she challenge this recommendation on appeal.5
On appeal to this Court, Petitioner presents the same arguments she has advanced throughout — that the state courts' adherence to Vega denied her the right to meaningfully cross examine key state's witnesses; to compel witnesses to testify in her favor; to present a meaningful defense; and to be presumed innocent until the prosecution proves each element of the crime beyond a reasonable doubt. Brief of Appellant at 8. We address Petitioner's arguments in turn.
In a habeas corpus proceeding, this Court reviews the district court's legal conclusions de novo and its factual findings for clear error. E.g., Vincent v. Seabold, 226 F.3d 681, 684 (6th Cir.2000). We may only overturn the district court and grant a writ of habeas corpus if the state court's decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
As a threshold matter, a legal doctrine is not "clearly established Federal law, as determined by the Supreme Court" unless it is based on "holdings, as opposed to the dicta, of the Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A state court's decision is contrary to clearly established Federal law if it (1) arrives at a legal holding that contradicts a Supreme Court precedent or (2) involves facts that are materially indistinguishable from a Supreme Court case but nonetheless arrives at a substantially different result. Taylor, 529 U.S. at 405-406, 120 S.Ct. 1495. An unreasonable application of clearly established Federal law occurs if "the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular prisoner's case" or if the state court extends a Court precedent to a context where it should not apply, or fails to extend it to a context where it should apply. Id. at 406-409, 120 S.Ct. 1495.
Initially, we note that the standard of review established by AEDPA is determinative in this case. As debatable as Vega may be,6 we conclude that its application in Petitioner's case was not contrary to or an unreasonable application of clearly established federal law.
The first issue we address is whether the trial court's decision to prohibit cross examination on the issue of the BAC Verifier's...
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