Al-Timimi v. Jackson, Civil No. 05-10266.

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtDavid M. Lawson
Citation608 F.Supp.2d 833
PartiesAli AL-TIMIMI, Petitioner, v. Andrew JACKSON, Respondent.
Docket NumberCivil No. 05-10266.
Decision Date17 February 2009
608 F.Supp.2d 833
Ali AL-TIMIMI, Petitioner,
Andrew JACKSON, Respondent.
Civil No. 05-10266.
United States District Court, E.D. Michigan, Southern Division.
February 17, 2009.

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Larry A. Smith, Southfield, MI, for Petitioner.

Laura A. Cook, Michigan Department of Attorney General, Lansing, MI, for Respondent.


DAVID M. LAWSON, District Judge.

Petitioner Ali Al-Timimi currently is confined in a Michigan prison serving a fifteen-to-twenty-five-year sentence for second-degree murder. Through counsel, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is unlawfully confined because his rights under the Confrontation Clause were violated during his jury trial in the Wayne County, Michigan circuit court. This matter was referred to Magistrate Judge Charles E. Binder, who issued a report on July 5, 2006 recommending that the petition be denied. The petitioner timely filed his objections to the Report and Recommendation, and this matter is now before the Court for de novo review.

The focus of the habeas petition is on the manner in which the state court dealt with the unusual circumstances surrounding the unavailability at trial of an important State witness. The witness, Zamen Al-Kasid ("Zamen"), was the petitioner's teenage sister-in-law and the apparent romantic interest of the murder victim, Waheed Al-Alyawi ("Waheed"). Waheed was killed when the motorcycle he was riding was struck by an automobile driven by the petitioner. The State's theory was that the petitioner intentionally caused this collision because the petitioner's family was upset at the relationship between Zamen and Waheed. Zamen provided crucial testimony at the preliminary examination establishing this motive, but she could not be located for trial. The major complication arose when it was discovered that the magistrate's recording equipment malfunctioned, the court reporter had died, and only a few pages of Zamen's prior testimony were preserved. The state trial judge permitted the prosecutor to call witnesses present during Zamen's testimony to repeat what she said at the preliminary examination. Although the petitioner had the opportunity to cross-examine Zamen at the preliminary examination, he contends that the trial witnesses' account of Zamen's testimony did not do justice to the full range of questioning during the prior testimony, and his right to confront Zamen was violated.

The magistrate judge concluded in his report that the petitioner's claim lacked merit. He applied the Supreme Court's watershed Confrontation Clause decision of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was handed down just a few weeks before the state court of appeals issued its opinion in the petitioner's direct appeal, and concluded that there was not much of a contest that Zamen was unavailable at trial, she gave prior statements under oath that properly are characterized as testimonial, and the witness was subject to cross-examination. So he found that the petitioner's

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real challenge went to the manner in which the testimony was presented to the jury, which did not contravene any clearly establish Supreme Court precedent. Therefore, the magistrate judge suggested, the petitioner was not entitled to a writ of habeas corpus.

The petitioner's objections challenge several factual determinations by the magistrate judge, which the petitioner believes are erroneous and lead to the incorrect conclusion about the fairness of the presentation of the secondary evidence of Zamen's prior testimony. He also disagrees with the magistrate judge's ultimate conclusion that the petitioner was able to confront the witness adequately within the meaning of the Sixth Amendment. After reviewing record, the magistrate judge's report, and the parties' submissions, the Court concludes that although the magistrate judge made some mistakes in his factual account, his ultimate conclusion is compelled by the rigid standard applied to habeas cases in the wake of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). The state courts' decision to permit secondary evidence of a State witness's prior testimony—where the petitioner had the opportunity to cross-examine the witness fully during the prior proceeding—was not "contrary to," nor did it "involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Therefore, the Court will deny the petition.


Because the petitioner takes issue with the facts as summarized by the magistrate judge, the Court will review the evidence in some detail. The traffic collision causing Waheed Al-Alyawi's death occurred on October 3, 2001, in Dearborn, Michigan. Waheed was riding a motorcycle when he was struck and killed by an automobile driven by the petitioner. The petitioner fled the scene, but his license-plate number was recorded by two eyewitnesses. When police located and questioned the petitioner, he initially denied having any knowledge of the accident. Eventually, he admitted that he was in an accident but claimed that he did not know Waheed, the victim. The police later learned of the romantic liaison between twenty-six-year-old Waheed and Zamen, the petitioner's sixteen-year-old sister-in-law, which ran counter to the family's wishes. The petitioner was charged with first-degree murder, and Zamen was taken into protective custody before the petitioner's preliminary examination, which was held on October 26, 2001 before the Honorable Virginia Sobotka of the Nineteenth District Court for the City of Dearborn. Zamen escaped but was found prior to the hearing, where she testified under oath as a witness for the prosecution. The petitioner was bound over to circuit court on a charge of first-degree murder.

Zamen continued to be held in protective custody until she again escaped in December 2001. The police department became aware of the disappearance in March or April 2002 and began to search for her. They placed flyers along Seven Mile Road, and interviewed her family and friends, but were unable to find her. When the petitioner's trial commenced on October 7, 2002, Zamen could not be located. The trial court found that the prosecution had undertaken diligent efforts to locate her and declared her an unavailable witness.

In the meantime, it was discovered after the preliminary examination that the court reporter's equipment had malfunctioned during Zamen's testimony. Only five pages could be transcribed. In addition, the court reporter died and a transcript of

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the remainder of the hearing could not be produced. The transcript remnant from Zamen's testimony reads:

Q: [state prosecutor]: Could you please tell us your name?

A: Zamen Al-Kasid.

Q: Do you know someone by the name of Ali Al-Timimi?

A: Yes, I do.

Q: Is he present in the courtroom today?

A: Yes, he is.

Q: Could you please tell us where he's seated and what he's wearing?

A: He's sitting—you want me to point him out?

[Q]: Yes.

A: right over there wearing a blue shirt. I believe that has red stripes on it.

[Prosecutor]: Let the record reflect that the witness has pointed to the defendant, Ali Al-Timimi and has described what he's wearing.

Q: ... Could you tell us how old you are, please?

A: Sixteen years old.

Q: Back in the month of October, even September of the year 2001, did you have a boyfriend?

A: October what, 2001?

Q: Yes; of this year.

A: Yes, I did.

Q: Would you tell us your boyfriend's name, please?

A: Waheed Alalyawi.

Q: Back in September of the year 2001 can you tell us where you were living?

A: In September?

Q: Yes.

A: At home.

Q: And where was your home?

A: On Steadman near Ford Road.

Q: While you were living at home on Steadman, were you living with your parents?

A: Yes, I was.

Q: Were you also living on Steadman with anybody else?

A: Yeah.

Q: Who else was living at your house on Steadman besides you and your parents?

A: Ali Al-Timimi and my sister.

Q: You said the defendant, Ali Al-Timimi was living with you as well as your sister?

A: Yes.

Q: Is the defendant, Ali Al-Timimi, somehow related to you?

A: He is my brother-in-law.

Q: He's married to your sister?

A: Yes.

Q: Which sister is that?

A: Nakla (phonetic).

Q: You said your sister and the defendant were living with you in the house on Steadman; is that correct?

A: Yes, because our house on Emmenon was burned and they used to live in the upstrairs [sic] house, because it was a two-story house.

Q: Okay. How long have they been living at your house with you and your parents?

A: I can't remember.

Q: Would it be more than a few months?

A: Yes.

Q: Would it be more than a year?

A: Probably.

Q: Okay. You said that you—you said that your boyfriend's name was Waheed. What was his last name?

A: Alalyawi

Q: His name was Waheed Alalyawi?

A: Right.

Q: Okay. Did there come a point in time when his family and your family

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became involved in at least some kind of an arrangement between the two of you?

A: Kind of.

Q: When you say kind of, can you tell us about that?

A: Well, when he came he sent his mother and his mother's friend to engage me.

Q: When you say engage me, what does that mean?

A: To ask for my hand.

Q: You mean to ask for your hand in marriage?

A: Yes.

Q: Okay. When his mother came to your family who did she speak to?

A: My family.

Q: Yes, but who specifically in your family did she speak to?

A: My mother.

Q: Okay. Did that result in an arrangement, a marriage arrangement between the mothers?

A: Yes.

Q: Okay. During the time that this arrangement was going on, was that...

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1 practice notes
  • Duke v. Allen, No. 09–16011.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 26, 2011
    ...464 F.2d 359, 365–66 n. 12 (5th Cir.1972). See also United States v. Burrell, 496 F.2d 609, 611 (3d Cir.1974); Al–Timimi v. Jackson, 608 F.Supp.2d 833, 837 (E.D.Mich.2009).4 Paradoxically, after discussing the matter at length, the majority ultimately concludes that “[n]o gesture, in fact, ......
1 cases
  • Duke v. Allen, No. 09–16011.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 26, 2011
    ...464 F.2d 359, 365–66 n. 12 (5th Cir.1972). See also United States v. Burrell, 496 F.2d 609, 611 (3d Cir.1974); Al–Timimi v. Jackson, 608 F.Supp.2d 833, 837 (E.D.Mich.2009).4 Paradoxically, after discussing the matter at length, the majority ultimately concludes that “[n]o gesture, in fact, ......

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