Card v. Cargor

               UNITED STATES DISTRICT COURT                             
               EASTERN DISTRICT OF MICHIGAN                             
                     SOUTHERN DIVISION                                  

ROBERT G. CARD,                                                           

        Petitioner,              CASE NO. 4:24-CV-12452                 
v.                                 HON. F. KAY BEHM                       
                                 U. S. District Judge                   
KIM CARGOR,                                                               

        Respondent.                                                     
___________________________________/                                      

    OPINION AND ORDER DISMISSING THE PETITION FOR                       
      A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE                       
     A CERTIFICATE OF APPEALABILITY, AND GRANTING                       
           LEAVE TO APPEAL IN FORMA PAUPERIS                            

   Robert  G.  Card,  (“Petitioner”),  incarcerated  at  the  Cotton  Correctional 
Facility in Jackson, Michigan, filed a petition for a writ of habeas corpus pursuant 
to 28 U.S.C. § 2254, through counsel Robert J. Dunn.  Petitioner challenges his 
conviction for second-degree murder, Mich. Comp. Laws § 750.317, and being a 
fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons that 
follow, the petition is DISMISSED WITH PREJUDICE.                         
                        I.  Background                                  
   Petitioner was convicted following a jury trial in the St. Clair County Circuit 
Court. The material facts from Petitioner’s conviction are gleaned from the Michigan 
Court of Appeals’ opinion affirming Petitioner’s conviction on his appeal of right, 
see People v. Card, No. 340550, 2023 WL 4144851, at *1–4 (Mich. Ct. App. June 
22, 2023), lv. den. 513 Mich. 1046, 3 N.W.3d 801 (2024), which is presumed correct 
on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Shimel v. Warren, 838 

F.3d 685, 688 (6th Cir. 2016).                                            
   The victim, John Allen, was murdered in his family home in the winter of 
2014. Judy Higley-Zuehlke (Higley) lived with the victim for some time at that 

address, but was evicted by the victim’s mother.  After the victim’s mother died, the 
victim inherited the home but did not allow Higley to live there although she 
regularly visited him. During the summer, the victim worked at the Black River 
Country Club, performing lawn maintenance services. In the winter, he removed 

snow for a few clients. The victim’s brother, James Allen, owned a store located 
around the corner from the victim’s home.                                 
   The victim had been doing some renovation on his home, including repairing 

a staircase leading to the second level. Mark McDougal, the victim’s boss, agreed to 
help the victim.  On Saturday, January 25, 2014, McDougal and his wife ran into the 
victim and Higley at a home construction store.  McDougal suggested that the victim 
purchase  lumber  from  a  different  store  that  would  cut  the  wood  to  specific 

measurements. On January 29, 2014, McDougal and Higley met at the victim’s 
house. McDougal sat at the victim’s kitchen table where a cheap, lightweight, “dollar 
store” hammer was placed. McDougal described it as being red fiberglass with a flat 
black paint covering part of it. This hammer was never located in the home following 
the victim’s death.                                                       

   James Allen last saw the victim on Thursday, January 30, 2014. On Friday, 
there was substantial snowfall in the area. About six inches of snow also fell on 
Saturday, February 1, 2014. The 2014 Super Bowl took place on Sunday, February 

2, 2014. James received phone calls from the victim’s snow-removal clients because 
the victim had not shoveled their snow.  James attempted to call the victim but could 
not reach him.                                                            
   On Monday, February 3, 2014, James walked over to the victim’s home to 

check on him. The victim had not shoveled the snow by his home. When James used 
his key to the victim’s home to open the door, he immediately smelled an odor, and 
saw the victim lying on the floor. James then stepped back out of the home and 

closed the door. On his way back to the store, James encountered the victim’s 
neighbor, Rachelle Bradshaw, who offered to call the police.              
   Police found no signs of forced entry into the victim’s home, but the victim 
suffered severe trauma, including a hole in the back of his head. A meat thermometer 

was found lying on a chair next to the victim’s body. Police found the victim’s cell 
phone, but were unable to retrieve text messages from it. The victim’s wallet and a 
coin purse were not found in the home.                                    
   Rachelle Bradshaw lived with Petitioner next door to the victim in a house 
that had been converted into apartment units. On Fridays, Bradshaw routinely went 

to her son’s home to babysit her granddaughter from 4:00 p.m. until midnight. On 
Friday,  January  31,  2014,  Petitioner  went  with  Bradshaw  to  babysit  her 
granddaughter.  A few hours into the evening, Bradshaw and Petitioner had an 

argument and Bradshaw asked Petitioner to leave.  Bradshaw testified that Petitioner 
behaved oddly earlier in the day. Before Bradshaw and Petitioner left to babysit 
Bradshaw’s granddaughter, Petitioner came out of the bathroom, holding his hands 
and arms up and looking them over. Bradshaw was concerned by this behavior. 

   Bradshaw also described an odd interaction between the victim and Petitioner 
sometime in the middle of winter.  The victim knocked at her apartment door, and 
Petitioner answered it.  Bradshaw heard the victim say, “please don’t hit me.” She 

noticed that the victim was intoxicated, wore socks with no shoes, and had no coat.  
After speaking with Petitioner for approximately 5 minutes, the victim left to go 
home. Sometime after this interaction, Petitioner told Bradshaw that he was leaving 
to check on the victim and was gone for 5 to 10 minutes. When he returned home, 

Bradshaw did not notice his clothing being disheveled or stained. Bradshaw stated 
that she may have told the police that this interaction occurred between January 28 
and January 31, 2014, but Petitioner’s trial took place three years later and she could 

no longer recall the specific date at trial.                              
   The medical examiner estimated that the victim had been dead for 3 to 5 days 
when his body was discovered on Monday, February 3, 2014. The victim had  

suffered extensive trauma, including five distinct lacerations to the scalp, one of 
these was associated with a skull fracture. The medical examiner opined that a small, 
heavy, blunt instrument, like a hammer, would have caused those wounds. There 

were also signs that the victim had been manually strangled with hands or even by a 
foot or knee. The victim also suffered several rib fractures, which likely were caused 
by kicks, punches, or being knocked into a solid structure. The medical examiner 
discovered a puncture wound involving the victim’s inner ear into his brain that was 

caused by the purposeful and forceful insertion of a thin, rigid object. The medical 
examiner  testified  that  although  strangulation  was  the  actual  cause  of  death, 
contributory causes of death were the puncture wounds to the ear and skull and the 

multiple blunt-force head injuries. The medical examiner speculated that the blunt-
force injuries probably occurred first, followed by strangulation and the ear puncture 
after the victim had been rendered somewhat incapacitated.                
   Officer Jeremy Young interviewed Petitioner on February 8, 2014. Petitioner 

told Officer Young that he would be able to prove his whereabouts at the time of the 
murder if he had not deleted all his text messages.  Petitioner told the officer that he 
just changed his phone number the previous day, which happened to coincide with 
the day the police left a message with Bradshaw that they wanted to speak with 
Petitioner.                                                               

   In December of 2016, the police interviewed Petitioner again after his DNA 
was discovered on the meat thermometer left in the victim’s home.  In that interview, 
Petitioner denied being involved in the victim’s murder and provided an explanation 

for his whereabouts on the morning of Friday, January 31, 2014. Petitioner did not 
remember touching a meat thermometer at the victim’s house but acknowledged that 
he must have at some point.  Petitioner admitted to selling “weed” to the victim but 
denied selling any crack to him or smoking any crack with him.  Petitioner explained 

that the victim had asked about getting some powder cocaine, but Petitioner told him 
that he only could get crack, and the victim declined.                    
   Forensic testing of the meat thermometer did not reveal a legible fingerprint, 

however, DNA from the blood on the tip portion of the thermometer matched the 
victim’s DNA.  On the edge of the thermometer dial, where a person usually grasps 
the thermometer to use it, there were two DNA donors: the victim and Petitioner. 
Higley was excluded as a donor to the DNA found on the thermometer. Although 

Petitioner told the police during his interviews that he had no recollection of ever 
seeing a meat thermometer and that, assuming the test was valid, his DNA had to 
have  gotten  on  the thermometer  while moving it, perhaps when looking  for  a 

screwdriver in one of the victim’s drawers.  At trial, a state police forensic analyst 
questioned as to whether such a limited contact could leave a DNA sample on the 
thermometer.                                                              

   Two county jail inmates, Cassandra Ross and Maureen Thorpe, testified that 
Higley confessed to her involvement in the victim’s murder.               
   Thorpe testified that Higley told her that she and “JR” were lovers. Thorpe 

also testified that, on one occasion, when Higley returned to the jail cell, Higley was 
laughing and happy and saying that she had “gotten away with it.” When Thorpe 
asked Higley if she murdered JR, she responded, “Yeah, but they can’t prove it.”  
Thorpe was also asked what Higley said in response to some questions by Ross. 

Thorpe testified that Higley claimed that she “got away with it” and that JR “had so 
much drugs and alcohol in his system and broken bones that they couldn’t prove 
when  that  had  happened.”  Thorpe  denied  ever  searching  through  Higley’s 

belongings and denied ever reading any reports related to this matter.    
   Ross testified that she did not know Petitioner, even though she shared a cell 
with Higley and Thorpe when she was in jail in April 2014.  Higley told Ross that 
someone called “JB” had died in her case and that she was involved in a “love 

triangle,” with JB being her boyfriend. Ross testified that one day, after Higley 
returned from meeting with her attorney, Higley suggested that she was being 
released because “they” could not prove anything. Higley explained to Ross that 
there were “too many pills and stuff in his system” and too many “bumps,” “bruises,” 
and “broken bones” to prove anything.                                     

   Higley’s two recorded interviews with the police were admitted into evidence 
at Petitioner’s trial.  In the first interview, Higley alleged that she woke up Friday 
morning crying after having had a “terrible nightmare” that something bad had 

happened to the victim.  She called the victim, who did not answer the phone.  So, 
she went to the victim’s house.  Higley told the police that she knocked on the door 
and when there was no answer, she left.  Higley said that after not seeing the victim, 
she went to a pawn shop and pawned a necklace she owned, and then went to 

Buscemi’s for some beer before heading home.  Higley also said that she lived with 
her boyfriend, William “Dale” Neumann, Jr.  To conceal her contacts with the victim 
from Neumann, Higley had the victim’s contact labeled as “Mrs. Cleary” on her 

phone.  Although she texted with the victim, Higley told the police that it would be 
“too dangerous” to retain those texts on her phone.                       
   The police interviewed Higley two days later.  Higley again told them that she 
had a dream that something bad had happened to the victim. This time, Higley 

admitted that when she went to the victim’s house around 12:30 p.m. or 1:00 p.m. 
on Friday, January 31, she went inside and discovered him dead on the floor, with a 
hole in the back of his head.  Higley indicated that the pool of blood behind his head 

was “steaming,” as if the incident had “just happened.” Higley knew that the victim 
was dead, panicked, and erased the text messages from the victim’s cell phone. 
Higley looked for a “joint” to calm her nerves. The search was unsuccessful.  Higley 

then looked in the refrigerator for a beer.  Again the search was unsuccessful. Higley 
left the home and locked the door, before heading to the pawn shop.       
   Higley  was  tried  and  convicted  for  the  murder  of  the  victim,  but  that 

conviction was vacated months later when it was discovered that Petitioner’s DNA 
was present on the meat thermometer. Higley was retried and convicted again, this 
time  with  the  prosecutor  acknowledging  Petitioner’s  DNA.  Petitioner’s  trial 
occurred a few months after Higley’s retrial concluded. Higley’s convictions were 

affirmed on appeal. People v. Higley-Zuehlke, No. 337332, 2023 WL 4141075 
(Mich. Ct. App. June 22, 2023), lv. den., 513 Mich. 1046, 4 N.W.3d 67 (2024) 
   Petitioner was convicted at his trial. He was sentenced to 40-70 years in 

prison. As mentioned above, his conviction was affirmed on appeal.        
   Petitioner seeks habeas relief on the following grounds:             
   I. Whether the trial court erred in not holding that the prosecutor was 
   barred from trying Defendant as the sole principal of the murder of John 
   Allen because of collateral estoppel when a previous jury of this court 
   twice convicted Judith Higley without participation of Robert Card of 
   committing the exact same acts causing the victim’s death contrary to 
   clearly established U.S. Supreme Court case law in Ashe v Swenson and 
   Bravo v Fernandez [sic] v United States.                             

   II. Whether the Defendant’s 6th Amendment right to a fair trial was  
   violated now requiring a new trial based on the admission of highly  
   prejudicial  hearsay  could  not  be  cross-examined,  was  ineffective 
   assistance of counsel, and the state court’s ruling failed to follow the 
   clearly established U.S. Supreme Court decision in Crawford.         

   III. Whether the trial judge erred in denying trial counsel’s oral motion 
   to admit evidence of Judith Higley’s second-degree murder conviction 
   because Defendant could not fully exercise his Sixth Amendment right 
   to present a defense of third-party guilt when Higley took the Fifth 
   Amendment and did not testify where much stronger evidence of that   
   guilt would have been shown by her conviction, all of which was the  
   consequence  of  the  Michigan  courts  failure  to  follow  the  clearly 
   established U.S. Supreme Court’s decision in Chamber, Holmes and     
   Crane.                                                               

                     II. Standard of Review                             
   28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas 
cases:                                                                    
   An application for a writ of habeas corpus on behalf of a person in  
   custody pursuant to the judgment of a State court shall not be granted 
   with respect to any claim that was adjudicated on the merits in State 
   court proceedings unless the adjudication of the claim–              

        (1)  resulted  in  a  decision  that  was  contrary  to,  or    
             involved  an  unreasonable  application  of,  clearly      
             established  Federal  law,  as  determined  by  the        
             Supreme Court of the United States; or                     

        (2)  resulted  in  a  decision  that  was  based  on  an        
             unreasonable determination of the facts in light of        
             the  evidence  presented  in  the  State  court            
             proceeding.                                                

   A decision of a state court is “contrary to” clearly established federal law if 
the state court arrives at a conclusion opposite to that reached by the Supreme 
Court on a question of law or if the state court decides a case differently than the 
Supreme Court has on a set of materially indistinguishable facts. Williams v. 

Taylor, 529 U.S. 362, 405-06 (2000).  An “unreasonable application” occurs when 
“a state court decision unreasonably applies the law of [the Supreme Court] to the 
facts of a prisoner’s case.” Id. at 409.  A federal habeas court may not “issue the 

writ simply because that court concludes in its independent judgment that the 
relevant state-court decision applied clearly established federal law erroneously or 
incorrectly.” Id. at 410-11.  “[A] state court’s determination that a claim lacks 
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 

on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 
86, 101 (2011).  To obtain habeas relief in federal court, a state prisoner is required 
to show that the state court’s rejection of his claim “was so lacking in justification 

that there was an error well understood and comprehended in existing law beyond 
any possibility for fairminded disagreement.” Id., at 103.                
                        III. Discussion                                 
A. Claim # 1. The collateral estoppel claim.                            

   Petitioner first argues that the State of Michigan was collaterally estopped 
from prosecuting Petitioner for the murder because at co-defendant Judith Higley’s 
first trial, the prosecutor’s theory was that she killed the victim by herself with no 

assistance from other individuals.                                        
   Issue preclusion, or collateral estoppel, is a civil-law concept which indicates  
that “when an issue of ultimate fact has once been determined by a valid and final 

judgment, that issue cannot again be litigated between the same parties in any future 
lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970).  In Ashe, the Supreme Court 
incorporated  preclusion  into  criminal  law  via  the  Fifth  Amendment’s  Double 

Jeopardy Clause and to the states via the Fourteenth Amendment’s Due Process 
Clause. Id. at 445 (citing Benton v. Maryland, 395 U.S. 784 (1969)).  In Ashe, the 
defendant was charged with armed robbery of a group of poker players and the theft 
of a vehicle. He was tried and acquitted. Later, the prosecution attempted to try the 

defendant again for the robbery of a different participant in the poker game. The 
Supreme  Court  held  that  this  was  collateral  estoppel  and  therefore  the  second 
prosecution was barred by the Fifth Amendment guarantee against double jeopardy. 

Id. at 446-47.                                                            
   The rule announced in Ashe, however, is of limited application in criminal 
cases. “The Supreme Court has found issue preclusion under Ashe only three other 
times.” Langley v. Prince, 926 F.3d 145, 157 (5th Cir. 2019) (citing Turner v. 

Arkansas, 407 U.S. 366, 369–70 (1972) (per curiam); Harris v. Washington, 404 
U.S. 55, 57 (1971) (per curiam); Simpson v. Florida, 403 U.S. 384, 386 (1971) (per 
curiam)).    The  Turner,  Harris,  Simpson,  and  Ashe  cases  all  involved  blanket 

acquittals of the defendants. Id.  None of the juries in those four Supreme Court cases 
convicted the defendant of the charged crime. Id. at 158. Neither Ashe nor the three 
subsequent Supreme Court cases that relied on Ashe held that the principles of issue-

preclusion apply to a criminal conviction. Id.  There is thus no “clearly established 
Federal law, as determined by the Supreme Court,” which explains whether and to 
what  extent  a  state  court  should  find  issue  preclusion  following  a  defendant’s 

conviction. Id.  This, as the Fifth Circuit suggests, is not “surprising” considering 
that  the  Supreme  Court  has  held  that  “Ashe’s  protections  apply  only  to  trials 
following acquittals.” Id. (quoting Currier v. Virginia, 585 U.S. 493, 501 (2018)) 
(emphases added). Accordingly, “[A] fairminded jurist could conclude the rule 

clearly established in Ashe does not apply to a conviction rather than a general 
acquittal.” Id. at 158.                                                   
   Petitioner was not tried and acquitted for the victim’s murder and then retried 

a second time under a different theory. Instead, his co-defendant was initially tried 
and convicted for the victim’s murder under a theory by the prosecution that she had 
acted alone. Her conviction was vacated following the discovery of Petitioner’s 
DNA on the meat thermometer that had been used as a murder weapon.  Petitioner 

was then charged with this crime and tried and convicted as an aider and abettor to 
the murder based on his DNA and other evidence.  Higley on her re-trial was tried 
and convicted under a theory that she had acted in concert with Petitioner to murder 

the victim.  Petitioner has cited to no Supreme Court caselaw which suggests that a 
prosecutor is collaterally estopped from pursuing a different theory of the criminal 
case  against  a  defendant  than  the  theory  used  to  prosecute  an  accomplice, 

particularly if newly discovered evidence suggests the defendant’s involvement in 
the crime.                                                                
   Petitioner was not placed in jeopardy at Higley’s first trial, thus, any results 

of that trial would not bind the state in its prosecution of Petitioner. See Nichols v. 
Scott,  69  F.3d  1255,  1270  (5th  Cir.  1995).  “Moreover,  the  rule  of  ‘collateral 
estoppel’ described in Ashe ….required that the two actions be between ‘the same 
parties.’” Id. (quoting Ashe, 397 U.S. at 443).  Because Petitioner was not a party in 

Higley’s trial, the result in that trial could not collaterally estop the state in its 
prosecution of Petitioner even under the federal common law rule of collateral 
estoppel in criminal cases. Id.                                           

   Moreover, a prosecutor may use different strategies in different trials for 
accomplices without violating due process. Burns v. Mays, 31 F.4th 497, 506 (6th 
Cir. 2022); see also Bradshaw v. Stumpf, 545 U.S. 175, 186–87 (2005) (finding that 
the “Court of Appeals was also wrong to hold that prosecutorial inconsistencies 

between the Stumpf and [his accomplice] cases required voiding Stumpf’s guilty 
plea”); see also Bradshaw, 545 U.S. at 190 (Thomas, J., concurring) (“This Court 
has never hinted, much less held, that the Due Process Clause prevents a State from 

prosecuting defendants based on inconsistent theories.”); Stumpf v. Robinson, 722 
F.3d 739, 750 (6th Cir. 2013) (en banc) (“The mere fact that the State argued for 
different inferences in different cases does not make either argument so unfair that 

it violates the Due Process Clause.”); Blalock v. Wilson, 320 F. App’x 396, 417-18, 
and n. 26 (6th Cir. 2009) (holding that there was no “‘clearly established’ Supreme 
Court or Sixth Circuit precedent, including Bradshaw, that a prosecutorial strategy 

of  taking  unconstitutionally  inconsistent  positions  in  two  separate  trials  would 
violate a defendant’s due process rights”).  Petitioner is not entitled to habeas relief 
on his first claim.                                                       
B. Claim # 2. The hearsay/confrontation/ineffective assistance of counsel 
   claims.                                                              

   In  his  second  claim,  Petitioner  alleges  that  the  trial  judge  allowed  in 
inadmissible hearsay testimony which violated his right to a fair trial and his Sixth 
Amendment right to confrontation. Alternatively, Petitioner alleges that trial counsel 
was  ineffective  for  failing  to  object.  Petitioner  refers  to  Rachelle  Bradshaw’s 

testimony, in which she testified that as the victim stood in Bradshaw’s home 
doorway he said to Petitioner “please don’t hit me.”                      
   Petitioner initially argues that the victim’s out-of-court utterance was barred 
by Michigan’s rules of evidence. He also argues that the victim’s utterance should 

have been excluded under M.R.E. 403 for being more prejudicial than probative. 
   It is “not the province of a federal habeas court to reexamine state-court 
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 
(1991). “[S]tate and federal statutes and rules, not the Due Process Clause, ordinarily 
govern the admissibility of evidence in criminal trials.” Stewart v. Winn, 967 F.3d 

534, 538 (6th Cir. 2020) (citing Perry v. New Hampshire, 565 U.S. 228, 237 (2012)) 
(cleaned up). “Generally, state-court evidentiary rulings cannot rise to the level of 
due process violations unless they ‘offend[] some principle of justice so rooted in 

the  traditions  and  conscience of our people as to  be  ranked  as  fundamental.’” 
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 
518 U.S. 37, 43 (1996)). Further, “[t]o show a due process violation under [the] 
AEDPA rooted in an evidentiary ruling, this court has typically required a Supreme 

Court case establishing a due process right with regard to that specific kind of 
evidence.” Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012).       
   The Michigan Court of Appeals rejected Petitioner’s claim that this was 

impermissible hearsay by indicating that the victim’s utterance was not a statement, 
as defined by M.R.E. 801, but a command. People v. Card, 2023 WL 4144851, at 
*6.                                                                       
   The  admissibility  of  evidence  under  Michigan’s  hearsay  rules  is  not 

cognizable in a habeas corpus proceeding. See Byrd v. Tessmer, 82 F. App’x 147, 
150 (6th Cir. 2003). What is or is not hearsay evidence in a state court trial is 
governed by state law. See Johnson v. Renico, 314 F. Supp. 2d 700, 705 (E.D. Mich. 

2004) (internal citations omitted).  The Michigan Court of Appeals determined that 
the victim’s utterance was not hearsay.  A federal habeas court is bound by a state 
appellate court’s ruling that certain testimony is not hearsay, because state law 

governs  questions  concerning  the  admissibility  of  evidence.  Id.  at  706.  The 
admission of this evidence in violation of Michigan’s rules of evidence would not 
entitle Petitioner to relief.                                             

   Petitioner’s claim that this evidence should have been excluded under M.R.E. 
403 for being more prejudicial than probative does not entitle him to habeas relief.  
The Sixth Circuit found that “[t]he Supreme Court has never held (except perhaps 
within the capital sentencing context) that a state trial court’s admission of relevant 

evidence, no matter how prejudicial, amounted to a violation of due process.” 
Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012) (emphasis original).  The 
Michigan Court of Appeals found that the victim’s utterance was relevant because it 

showed he feared being harmed by Petitioner. People v. Card, 2023 WL 4144851, 
at * 6.  This Court must defer to that determination.                     
   Petitioner also claims that the admission of the victim’s utterance violated his 
Sixth Amendment right to confrontation.                                   

   Out of court statements that are testimonial in nature are barred by the Sixth 
Amendment  Confrontation  Clause  unless  the  witness  is  unavailable  and  the 
defendant has had a prior opportunity to cross-examine the witness, regardless of 

whether  such  statements  are  deemed  reliable  by  the  court.  See  Crawford  v. 
Washington,  541  U.S.  36  (2004).  However,  the  Confrontation  Clause  is  not 
implicated, and thus does not need not be considered, when non-testimonial hearsay 

is at issue. See Davis v. Washington, 547 U. S. 813, 823-26 (2006); see also Desai 
v. Booker, 538 F.3d 424, 425-26 (6th Cir. 2008). Testimonial statements do not 
include remarks made to family members or acquaintances, business records, or 

statements made in furtherance of a conspiracy. Crawford, 541 U.S. at 51-52, 56.  In 
holding that the Sixth Amendment right to confrontation does not apply to non-
testimonial statements, the Supreme Court stated:                         
   “The text of the Confrontation Clause reflects this focus [on testimonial 
   hearsay].  It applies to ‘witnesses’ against the accused-in other words, 
   those who ‘bear testimony.’ 1 N. Webster, An American Dictionary of  
   the English Language (1828).  ‘Testimony,’ in turn, is typically ‘a  
   solemn declaration or affirmation made for the purpose of establishing 
   or proving some fact.’ Ibid.  An accuser who makes a formal statement 
   to government officers bears testimony in a sense that a person who  
   makes a casual remark to an acquaintance does not.”                  

Davis, 547 U.S. at 823-24 (quoting Crawford, 541 U.S., at 51).            

   The victim’s utterance did not qualify as a testimonial statement covered by 
the Confrontation Clause because it was a remark made to a friend or acquaintance 
and not one made to law enforcement. See Deshai, 538 F.3d at 427. Moreover, 
because the Confrontation Clause has no applicability to non-testimonial statements, 
they  may  be  admitted  even  if  they  lack  indicia  of  reliability.  See  Whorton  v. 
Bockting, 549 U.S. 406, 420 (2007).  The Michigan Court of Appeals reasonably 
rejected this portion of Petitioner’s claim.                              
   Petitioner, however, argues that his trial counsel was ineffective for failing to 
object to the admission of the victim’s utterance.                        

   To the extent that Petitioner argues that counsel was ineffective for failing to 
object on the ground that admission of the victim’s utterance violated Michigan law, 
he would not be entitled to relief.                                       

   Federal habeas courts “‘must defer to a state court’s interpretation of its own 
rules of evidence  and procedure’ when assessing  a habeas petition.” Miskel  v. 
Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 610, 
614 (6th Cir. 1988)).  Because the Michigan Court of Appeals determined that under 

Michigan law the victim’s utterance did not qualify as hearsay evidence and was not 
more prejudicial than probative, this Court must defer to that determination in 
resolving this portion of Petitioner’s ineffective assistance of counsel claim. See 

Brooks v. Anderson, 292 F. App’x 431, 437-38 (6th Cir. 2008).  This Court “cannot 
logically  grant  the  writ  based  on  ineffective  assistance  of  counsel  without 
determining that the state court erred in its interpretation of its own law,” thus this 
Court is constrained to reject this portion of Petitioner’s ineffective assistance of trial 

counsel claim. See Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005).  Bradshaw’s 
testimony  concerning  the  victim’s  utterance  did  not  violate  the  Confrontation 
Clause; counsel was not ineffective for failing to object to its admission on this basis. 
See e.g. U.S. v. Johnson, 581 F.3d 320, 328 (6th Cir. 2009).  Petitioner is not entitled 
to habeas relief on his second claim.                                     

C. Claim # 3. The right to present a defense claim.                     
   Petitioner next claims that he was denied the right to present a defense when 
the trial court refused to allow him to admit into evidence a certified copy of Higley’s 

conviction for the murder of the victim.                                  
   Just as an accused has the right to confront the prosecution’s witnesses for the 
purpose of challenging their testimony, he also has the right to present his own 
witnesses to establish a defense.  This right is a fundamental element of the due 

process of law. Washington v. Texas, 388 U.S. 14, 19 (1967); see also Crane v. 
Kentucky, 476 U.S. 683, 690 (1986) (“whether rooted directly in the Due Process 
Clause  of  the  Fourteenth  Amendment,  or  in  the  Compulsory  Process  or 

Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal 
defendants ‘a meaningful opportunity to present a complete defense’”) (internal 
citations  omitted).    However,  an  accused  in  a  criminal  case  does  not have  an 
unfettered  right  to  offer  evidence  that  is  incompetent,  privileged,  or  otherwise 

inadmissible under the standard rules of evidence. Montana v. Egelhoff, 518 U.S. at 
42.  The Supreme Court, in fact, has indicated its “traditional reluctance to impose 
constitutional  constraints  on  ordinary  evidentiary  rulings  by  state  trial  courts.” 

Crane, 476 U.S. at 689.  The Supreme Court gives trial court judges “wide latitude” 
to exclude evidence that is repetitive, marginally relevant, or that poses a risk of 
harassment, prejudice, or confusion of the issues. Id. (quoting Delaware v. Van 

Arsdall, 475 U.S. at 679).                                                
   Under the standard of review for habeas cases as enunciated in § 2254(d)(1), 
it is not enough for a habeas petitioner to show that the state trial court’s decision to 

exclude potentially helpful evidence to the defense was erroneous or incorrect.  
Instead, a habeas petitioner must show that the state trial court’s decision to exclude 
the evidence was “an objectively unreasonable application of clearly established 
Supreme Court precedent.” See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 

2003).                                                                    
   The Michigan Court of Appeals rejected Petitioner’s claim in part because 
Petitioner was  able to introduce  significant evidence  implicating Higley  in the 

victim’s murder, including her interviews with and statements to the police, her 
admission that she previously lied about when she last saw the victim, her concession 
that after finding the victim dead on January 31, 2014, and that she deleted text 
messages from the victim’s cell phone.  Additionally, Petitioner also successfully 

offered into evidence, through the testimonies of Thorpe and Ross, that Higley 
expressly and implicitly confessed that she murdered the victim. People v. Card, 
2023 WL 4144851, at *8.                                                   
   In light of the fact that Petitioner was able to present considerable evidence 
that Higley murdered the victim, the trial court’s refusal to permit Petitioner to 

introduce a copy of Higley’s conviction into evidence did not deprive Petitioner of 
a meaningful opportunity to present a defense. See Wynne v. Renico, 606 F.3d 867, 
871 (6th Cir. 2010) (Petitioner’s Sixth Amendment right to present complete defense 

was not violated at murder trial by decision to exclude propensity evidence about 
third party where the petitioner was permitted to introduce considerable evidence 
that the third party was the murderer); see also United States v. Lucas, 357 F.3d 599 
(6th Cir. 2004) (federal defendant’s Sixth Amendment right to present defense was 

not violated at drug trial by decision to exclude evidence of absent third party’s prior 
conviction for possessing and distributing cocaine as irrelevant, where the defendant 
was able to explore her theory that the third party was in fact the culprit and present 

it to the jury through witness testimony, as well as her own, describing the third 
party’s alleged strange behavior and alleged access to car where drugs were found). 
   The trial court’s exclusion of a certified copy of Higley’s murder conviction 
from evidence was not so egregious that it effectively denied Petitioner a fair trial, 

in  light  of  the  fact  that  Petitioner  was  not  completely  barred  from  presenting 
evidence and arguing that Higley was solely responsible for the victim’s murder. See 
Fleming v. Metrish, 556 F.3d 520, 535-36 (6th Cir. 2009).  With the quantum of 

evidence on the defense theory in the record, this Court finds that the Petitioner was 
afforded “a meaningful opportunity to present a complete defense.” Allen v. Howes, 
599 F. Supp. 2d 857, 873 (E.D. Mich. 2009) (citing Crane, 476 U.S. at 690 (citation 

and internal quotations omitted)).  Petitioner is not entitled to habeas relief on his 
third claim.                                                              
                        IV.  Conclusion                                 

   Before Petitioner may appeal this Court’s dispositive decision, a certificate of 
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b).  A 
certificate of appealability may issue “only if the applicant has made a substantial 
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).  When a 

court rejects a habeas claim on the merits, the substantial showing threshold is met 
if the petitioner demonstrates that reasonable jurists would find the district court’s 
assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 

529 U.S. 473, 484-85 (2000).  “The district court must issue or deny a certificate of 
appealability when it enters a final order adverse to the applicant.” Rules Governing 
§ 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.                         
   For  the  reasons  stated  in  this  opinion,  the  Court  will  deny  Petitioner  a 

certificate of appealability because he has failed to make a substantial showing of 
the denial of a federal constitutional right. See Dell v. Straub, 194 F. Supp. 2d 629,  
659 (E.D. Mich. 2002).  However, although jurists of reason would not debate this 

Court’s resolution of Petitioner’s claims, the issues are not frivolous; therefore, an 
appeal could be taken in good faith and Petitioner may proceed in forma pauperis 
on appeal. See Foster v. Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. 2002).  

                          V. ORDER                                      
   Accordingly, it is ORDERED that the petition for a writ of habeas corpus 
(ECF No. 1) is DENIED.                                                    

   It is further ORDERED that a certificate of appealability is DENIED. 

   Petitioner will be GRANTED leave to appeal in forma pauperis.        

SO ORDERED.                                                               

                       s/F. Kay Behm                                    
                       F. Kay Behm                                      
Dated: June 23, 2025     United States District Judge