Shohatee v. Jackson, 121807 FED6, 06-1808

Docket Nº:06-1808
Party Name:MAJED SHOHATEE, Petitioner-Appellant, v. ANDRES JACKSON, Respondent-Appellee.
Case Date:December 18, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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MAJED SHOHATEE, Petitioner-Appellant,

v.

ANDRES JACKSON, Respondent-Appellee.

No. 06-1808

United States Court of Appeals, Sixth Circuit

December 18, 2007

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN.

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

BOYCE F. MARTIN, JR., Circuit Judge.

Majed Shohatee petitioned for a writ of habeas corpus based on three grounds: (1) ineffective assistance of counsel, (2) denial of the right to be present at a critical stage of the proceeding, and (3) denial of the right to have counsel of one's own choosing. Because we cannot find that Shohatee has met the high standard of review imposed on habeas corpus appeals, we AFFIRM the district court's denial of habeas corpus relief.

I

Shohatee was convicted of assault with intent to commit murder and first-degree criminal sexual conduct in Michigan. The victim, Veronica Rivera, had been beaten and penetrated with a crowbar. The Michigan Court of Appeals affirmed the conviction in February 2003, and the Michigan Supreme Court denied leave to appeal. The district court denied Shohatee's habeas corpus appeal on April 26, 2006.

The facts relevant to the issues presented are as follows. On September 26, 2000, during the second day of deliberation following trial, the jury sent a note to the judge requesting transcripts of testimony. Since the transcripts were not ready, the judge allowed playback of the trial tapes instead. The playback was to be done without the presence of the judge or any counsel. Defense counsel Richard Nelson expressed concern that the jury might hear excerpted testimony and take it out of context, but the judge agreed that only the entire testimony of any witness would be played. Nelson consented to these procedures. The jury was informed that it could hear the playback and take notes, but it could not speak to anyone or deliberate during the playback, nor would the tapes be stopped at any point. The jury then requested and heard the testimony of a number of witnesses. With respect to the testimony of two of these witnesses the record does not confirm that their testimony was played. The judge did not give any instruction to the jury concerning the proper use of playback testimony.

During the sentencing hearing, Shohatee, through his counsel, requested a continuance so that...

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