Garay 949384 v. Tasson

                  UNITED STATES DISTRICT COURT                           
                  WESTERN DISTRICT OF MICHIGAN                           
                       NORTHERN DIVISION                                 
                             ______                                      

VICTOR MANUEL GARAY,                                                      

              Petitioner,         Case No. 2:24-cv-202                   

v.                                 Honorable Robert J. Jonker             

DOUGLAS TASSON,                                                           

              Respondent.                                                
____________________________/                                             
                            OPINION                                      
    This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. 
Petitioner Victor Manuel Garay is incarcerated with the Michigan Department of Corrections at 
the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Following 
a jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of first-degree 
murder, in violation of Mich. Comp. Laws § 750.316; conspiracy to commit murder, in violation 
of Mich. Comp. Laws §§ 750.157a and 750.316; and two counts of possession of a firearm during 
the  commission  of  a  felony  (felony-firearm),  in  violation  of  Mich.  Comp.  Laws  
§ 750.227b. The trial court initially sentenced Petitioner to life without parole for the murder and 
conspiracy  convictions  and  to  2  years,  to  be  served  consecutively,  for  the  felony-firearm 
convictions. On November 10, 2022, the trial court resentenced Petitioner to 40 to 60 years’ 
incarceration for the first-degree murder and conspiracy convictions and to 2 years, to be served 
consecutively, for the felony-firearm convictions.                        
    On November 25, 2024, Petitioner filed his habeas corpus petition, raising the following 
two grounds for relief:                                                   
    I.   Admission of preliminary examination testimony of two witnesses was an 
         abuse of discretion and a violation of Petitioner’s right to confrontation. 
    II.  Petitioner’s  convictions  should  be  vacated  as  juror  misconduct  denied 
         Petitioner [] a fair trial.                                     
(§ 2254 Pet., ECF No. 1, PageID.14, 20.) Respondent contends that Petitioner’s grounds for relief 
are meritless. (ECF No. 4.) For the following reasons, the Court concludes that Petitioner has failed 
to set forth a meritorious federal ground for habeas relief and will, therefore, deny his petition for 
writ of habeas corpus.                                                    
                           Discussion                                    
I.   Factual Allegations                                                  
    The Michigan Court of Appeals described the facts underlying Petitioner’s convictions as 
follows:                                                                  
    This case involves the shooting death of 13-year-old Michael Day on May 26, 2014, 
    on Race Street in the Edison neighborhood of Kalamazoo, Michigan. The Edison 
    neighborhood was home to two gangs: Trapp Money and the Washington Street 
    Boys. Day was a member of the Washington Street Boys, and [Petitioner] admitted 
    a relationship with Trapp Money.                                     
    [Petitioner], who was 16 years old at the time of trial, was tried with his two adult 
    male codefendants before separate juries. Testimony was received from many live 
    witnesses. However, two juvenile sisters, N and T, whose preliminary-examination 
    testimony placed [Petitioner] in the proximity of the shooting, were declared 
    unavailable for trial over the defense’s objection. The parties made a record of the 
    objection, but neither the sisters nor their father were examined regarding their 
    unavailability in open court. Instead, the court received information regarding 
    threats  made  to  the  witnesses  on  Facebook,  and  the  prosecution  provided 
    information that the father of the two girls communicated that he would not allow 
    them to testify when he brought them to court under subpoena. The court admitted 
    their  preliminary-examination  testimony,  finding  that  their  refusal  to  testify 
    because of intimidation made them unavailable. Numerous other fact witnesses 
    testified. Several police officers also testified, including Officer Gary Latham from 
    the crime laboratory, who provided testimony regarding the weapon used to shoot 
    the victim, the direction of weapon fire, and other related issues.  
    After  the  jury  trial,  the  court  was  apprised  of  potential  juror  misconduct. 
    Specifically, a juror reported that another juror was acquainted with Officer Latham 
    and vouched for his expertise in weapons matters to the jury. Additionally, the juror 
    reported that members of the jury used cell phones during the trial proceedings. The 
    court held a hearing on this issue and placed the reporting juror under oath. At the 
    conclusion of that hearing, the court declined to order a new trial. 
People v. Garay, 903 N.W.2d 883, 886–87 (Mich. Ct. App. 2017).            
    Jury selection for Petitioner’s trial occurred on October 2, 2014. (Trial Tr. I, ECF No. 5-
5.) Over the course of six days, the jury heard testimony from numerous witnesses. (Trial Tr. II, 
III, IV, V, VI, VII, and VIII, ECF Nos. 5-6, 5-7, 5-8, 5-9, 5-10, 5-11.) On October 17, 2014, the 
jury returned a guilty verdict. (Trial Tr. IX, ECF No. 5-13, PageID.1350–1351.) 
    On October 29, 2014, Petitioner, through counsel, filed a motion for a new trial based upon 
juror misconduct. (ECF No. 5-14.) Specifically, Petitioner’s counsel averred that he had spoken to 
Juror 12 by phone shortly after October 17, 2014, and that Juror 12 had told counsel that “many 
jurors were using their cellular phones throughout the deliberation process.” (Id., PageID.1359.) 
Juror 12 also told counsel that another juror, believed to be Juror 8, represented that he knew 
Officer Latham well, knew that Latham was an expert, and that if Latham “stated the weapon could 
be fired accurately, that the other jurors could be ‘extremely confident’ in this testimony.” (Id.) 
Ultimately, on March 19, 2015, the trial court entered an order denying Petitioner’s motion for a 

new trial. (ECF No. 5-17.) Petitioner appeared before the trial court for sentencing on July 30, 
2015. (ECF No. 5-18.)                                                     
    Petitioner appealed his convictions and sentences, raising the following claims for relief: 
(1) the trial court erred by declaring the two juvenile witnesses unavailable and allowing for 
admission of the preliminary examination testimony; (2) the trial court abused its discretion in not 
ordering a new trial on the basis of juror misconduct; and (3) Petitioner’s life without parole 
sentences were unconstitutional because he was a juvenile at the time of the offense. See generally 
Garay, 903 N.W.2d 883. On April 11, 2017, the Michigan Court of Appeals affirmed Petitioner’s 
convictions but reversed his life without parole sentences and remanded the matter to the trial court 
for resentencing. Id. at 886.                                             
    Petitioner and the State subsequently filed applications for leave to appeal to the Michigan 
Supreme Court. In an order entered on April 5, 2019, the supreme court held the applications in 

abeyance pending its decision in People v. Masalmani. See People v. Garay, 924 N.W.2d 590 
(Mich. 2019). On October 20, 2020, the supreme court entered an order that, in lieu of granting 
leave to appeal, reversed the court of appeals’ judgment to “the extent that it would broadly 
preclude sentencing courts from considering, at all, the traditional objectives of sentencing – 
punishment, deterrence, protection, retribution, and rehabilitation – when considering whether to 
sentence persons who were under the age of 18 when they committed their offenses to a term of 
life without parole.” People v. Garay, 949 N.W.2d 673, 674 (Mich. 2020). The supreme court 
noted further:                                                            
    In addition, in light of People v. Skinner, 502 Mich. 89, 917 N.W.2d 292 (2018), 
    we VACATE the remainder of part IV of the Court of Appeals judgment and we 
    REMAND this case to that court to determine whether the trial court properly 
    considered the “factors listed in Miller v. Alabama, [567 U.S. 460, 132 S. Ct. 2455, 
    183 L. Ed. 2d 407] (2012),” MCL 769.25(6), or otherwise abused its discretion. 
    The application for leave to appeal as cross-appellant is DENIED, because we are 
    not persuaded that the questions presented should be reviewed by this Court. 
Id.                                                                       
    On remand, the Michigan Court of Appeals again affirmed Petitioner’s convictions, 
reversed  his  life  without  parole  sentences,  and  remanded  the  matter  to  the  trial  court  for 
resentencing. See People v. Garay, No. 329091, 2021 WL 5027974, at *1 (Mich. Ct. App. Oct. 28, 
2021). The court of appeals noted that it was retaining jurisdiction. Id. at *5. 
    On  November  22,  2022,  the  trial  court  resentenced  Petitioner  to  40  to  60  years’ 
imprisonment on the murder and conspiracy convictions and to a consecutive two years for the 
felony-firearm convictions. See People v. Garay, No. 329091, 2023 WL 2334683, at *1 (Mich. Ct. 
App. Mar. 2, 2023). On review after remand, the court of appeals affirmed those sentences. Id. at 
*2. The Michigan Supreme Court denied Petitioner’s application for leave to appeal on January 
12, 2024. People v. Garay, 998 N.W.2d 896 (Mich. 2024). This § 2254 petition followed. 
II.  AEDPA Standard                                                       
    The AEDPA “prevent[s] federal habeas ‘retrials’” and ensures that state court convictions 

are  given  effect  to  the  extent  possible  under  the  law.  Bell  v.  Cone,  535  U.S.  685,  
693–94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated 
pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on 
the merits in state court unless the adjudication:                        
    (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  upon  an 
    unreasonable determination of the facts in light of the evidence presented in the 
    state court proceeding.                                              
28 U.S.C. § 2254(d). “Under these rules, [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.” Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 2020) (internal 
quotation marks omitted) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). This standard 
is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015) (internal quotation 
marks omitted).                                                           
    The AEDPA limits the source of law to cases decided by the United States Supreme Court. 
28 U.S.C. § 2254(d). In determining whether federal law is clearly established, the Court may not 
consider the decisions of lower federal courts. Williams v. Taylor, 529 U.S. 362, 381–82 (2000); 
Miller v. Straub, 299 F.3d 570, 578–79 (6th Cir. 2002). Moreover, “clearly established Federal 
law” does not include decisions of the Supreme Court announced after the last adjudication of the 
merits in state court. Greene v. Fisher, 565 U.S. 34, 37–38 (2011). Thus, the inquiry is limited to 
an examination of the legal landscape as it would have appeared to the Michigan state courts in 
light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller 
v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38). 
    A federal habeas court may issue the writ under the “contrary to” clause if the state court 

applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it 
decides a case differently than the Supreme Court has done on a set of materially indistinguishable 
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405–06). “To satisfy this high bar, a 
habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in 
federal  court  was  so  lacking  in  justification  that  there  was  an  error  well  understood  and 
comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods, 575 
U.S. at 316 (quoting Harrington, 562 U.S. at 103).                        
    Determining whether a rule application was unreasonable depends on the rule’s specificity. 
Stermer, 959 F.3d at 721. “The more general the rule, the more leeway courts have in reaching 
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 

“[W]here the precise contours of the right remain unclear, state courts enjoy broad discretion in 
their adjudication of a prisoner’s claims.” White v. Woodall, 572 U.S. 415, 424 (2014) (internal 
quotation marks omitted).                                                 
    The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 
F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is 
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and 
convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) 
(en banc); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey v. Mitchell, 271 F.3d 
652, 656 (6th Cir. 2001). This presumption of correctness is accorded to findings of state appellate 
courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546–547 (1981); Smith v. 
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).                              
    Section 2254(d) limits the facts a court may consider on habeas review. The federal court 
is not free to consider any possible factual source. The reviewing court “is limited to the record 

that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 
U.S. 170, 180 (2011). “If a review of the state court record shows that additional fact-finding was 
required under clearly established federal law or that the state court’s factual determination was 
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the 
underlying claim on its merits. Stermer, 959 F.3d at 721 (citing, inter alia, Brumfield v. Cain, 576 
U.S. 305 (2015), and Panetti v. Quarterman, 551 U.S. 930, 954 (2007)).    
    If the petitioner “satisfies the heightened requirements of § 2254(d), or if the petitioner’s 
claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),”—for example, 
if he procedurally defaulted the claim—“AEDPA deference no longer applies.” Stermer, 959 F.3d 
at 721. Then, the petitioner’s claim is reviewed de novo. Id. (citing Maples v. Stegall, 340 F.3d 

433, 436 (6th Cir. 2003)).                                                
III.  Discussion                                                          
    A.   Ground I—Admission of Preliminary Examination Testimony         
    As his first ground for relief, Petitioner contends that the admission of two witnesses’ 
preliminary  examination  testimony  was  an  abuse  of  discretion  and  also  violated  his  Sixth 
Amendment Confrontation Clause rights. (§ 2254 Pet., ECF No. 1, PageID.14.) As the Michigan 
Court of Appeals summarized:                                              
    During trial, the prosecution asked the trial court to declare that N and T were 
    unavailable  as  witnesses  under  MRE  804(a)  and  to  admit  their  preliminary-
    examination testimony. According to the prosecution, N and T were subpoenaed 
    and had been contacted a number of times. Their father informed the members of 
    the Kalamazoo Department of Public Safety, who had made the contact, that N and 
    T would not appear because they had been threatened. However, N and T were 
    brought to court by their father on the day that they were to appear, but their father 
    stated that their presence was “a courtesy.” The sisters, who had been threatened, 
    would not testify. Detective Corey Ghiringhelli checked the Facebook page of 
    either N or T, and he saw a picture of the girl testifying at the preliminary 
    examination with the comment “that bitch should die.” The trial court declared the 
    two sisters unavailable and allowed the jury to hear their preliminary-examination 
    testimony. The trial court noted that telephone messages left by its staff with the 
    father of N and T had not been returned.                             
Garay, 903 N.W.2d at 887.                                                 
    The Confrontation Clause of the Sixth Amendment gives the accused the right “to be 
confronted with the witnesses against him.” U.S. Const. amend VI; Pointer v. Texas, 380 U.S. 400, 
403–05 (1965) (applying the guarantee to the states through the Fourteenth Amendment). “The 
central concern of the Confrontation Clause is to ensure the reliability of the evidence against a 
criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding 
before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990). The Confrontation Clause, 
therefore, prohibits the admission of an out-of-court testimonial statement at a criminal trial unless 
the  witness  is  unavailable  to  testify  and  the  defendant  had  a  prior  opportunity  for  cross-
examination. See Crawford v. Washington, 541 U.S. 36, 59 (2004). There are two requirements to 
consider  with  respect  to  the  unavailability  requirement.  First,  a  witness  cannot  be  deemed 
unavailable unless the government has made a good-faith effort to obtain his or her presence at 
trial proceedings. See Ohio v. Roberts, 448 U.S. 56, 74 (1980). Second, the unavailable witness 
must have given testimony at previous judicial proceedings against the same defendant, and that 
testimony must have been subject to cross-examination by that defendant. See Crawford, 541 U.S. 
at 54.                                                                    
    The Michigan Court of Appeals addressed Petitioner’s claim under the following standard: 
    A defendant shall enjoy the right to be confronted with the witnesses against him. 
    U.S. Const., Am. VI. Under the Confrontation Clause, the testimonial statements 
    of witnesses who are absent from trial are not admissible unless the witness was 
    unavailable to testify and the defendant had a prior opportunity to cross-examine 
    the witness. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 
    2d 177 (2004). Testimony given at a preliminary examination is a testimonial 
    statement. Id. at 68, 124 S. Ct. 1354. “The Confrontation Clause guarantees only 
    an  opportunity  for  effective  cross-examination,  not  cross-examination  that  is 
    effective in whatever way, and to whatever extent, the defense might wish.” United 
    States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988) 
    (quotation marks, citation, and brackets omitted).                   
Garay, 903 N.W.2d at 889. There is no question that the court of appeals applied the correct 
standard. Petitioner, therefore, can only overcome the deference afforded state court decisions if 
the court of appeals’ determination was based on an unreasonable application of Crawford or if 
the court of appeals’ resolution was based on an unreasonable determination of the facts. See 28 
U.S.C. § 2254(d).                                                         
         1.   Unavailability                                             
    The court of appeals first addressed the trial court’s conclusion that N and T were 
unavailable as witnesses. The court of appeals set forth the definition of hearsay under the 
Michigan Rules of Evidence, as well as when testimony given by an unavailable declarant may be 
admitted under Michigan Rule of Evidence 804(b)(1). See Garay, 903 N.W.2d at 887–88.  
    The court of appeals then concluded that the trial court did not abuse its discretion by 
declaring N and T unavailable, writing:                                   
    The trial court did not abuse its discretion by declaring N and T to be unavailable. 
    The decision of N and T’s father not to allow the two sisters to testify is not 
    expressly addressed under MRE 804(a), but it is of the same character as other 
    situations outlined in the rule. See People v. Adams, 233 Mich. App. 652, 658, 592 
    N.W.2d 794 (1999). Additionally, because N and T appeared on the fourth day of 
    trial pursuant to a subpoena, their departure from the courthouse and their refusal 
    to return to testify constituted a refusal to testify “despite an order of the court to 
    do so.” MRE 804(a)(2); Adams, 233 Mich. App. at 659 n.6, 592 N.W.2d 794.1 
    Given their father’s refusal to allow them to testify and his refusal to respond to the 
    trial court’s attempts for contact, N and T were certainly unavailable according to 
    the ordinary meaning of the word. Adams, 233 Mich. App. at 657–659, 592 N.W.2d 
    794. Furthermore, testimony at trial regarding the dangerous character of the Edison 
    neighborhood, the Facebook threat, and the father’s refusal to allow N and T to 
    testify out of fear for their safety shows that the reason for the refusal to testify was 
    self-preservation. Id. at 658, 592 N.W.2d 794. While the better practice would have 
    been to make a record of their unavailability by examining each as to any threats 
    received and the factors that influenced their refusal to testify, the trial court’s 
    decision to declare N and T unavailable was within the range of reasonable and 
    principled outcomes. Unger, 278 Mich. App. at 217, 749 N.W.2d 272.   
    The trial court also did not abuse its discretion by admitting the preliminary 
    examination testimony of N and T under MRE 804(b)(1). First, there is no dispute 
    that the preliminary-examination testimony was given “at another hearing of the 
    same or a different proceeding . . . .” MRE 804(b)(1). Second, [Petitioner] had “an 
    opportunity  and  similar  motive  to  develop  the  testimony”  at  the  preliminary 
    examination. Id. The purpose of a preliminary examination is “to determine if a 
    crime has been committed and, if so, if there is probable cause to believe the 
    defendant committed it.” People v. Johnson, 427 Mich. 98, 104, 398 N.W.2d 219 
    (1986)  (citation  and  quotation  marks  omitted).  The  prosecution’s  purpose  in 
    presenting the testimony of N and T at the preliminary examination, i.e., to show 
    that [Petitioner] conspired with codefendant Rashad Perez to shoot at members of 
    the Washington Street Boys and that [Petitioner] was the person who shot Day, was 
    the same purpose that the prosecution had in presenting their testimony at trial. 
    Therefore, [Petitioner] had an “interest of substantially similar intensity” in proving 
    or disproving the testimony of N and T. Farquharson, 274 Mich. App. at 278, 731 
    N.W.2d 797 (citation and quotation marks omitted). Additionally, although the 
    burden of proof was lower at the preliminary examination, see People v. Yost, 468 
    Mich. 122, 126, 659 N.W.2d 604 (2003), [Petitioner] had a similar motive to cross-
    examine N and T at both proceedings—[Petitioner] was motivated to show that 
    their  testimony  regarding  what  they  saw  and  heard  from  their  porch  lacked 
    credibility or was not accurate, Farquharson, 274 Mich. App. at 278, 731 N.W.2d 
    797. And [Petitioner] did, in fact, cross-examine N and T with regard to their 
    credibility. Under these circumstances, the trial court’s decision to admit the 
    preliminary-examination testimony of N and T fell within the range of reasonable 
    and principled outcomes. Unger, 278 Mich. App. at 217, 749 N.W.2d 272. 
    _________________                                                    
    1 We find no merit to [Petitioner’s] argument that the trial court should have ordered 
    N and T to testify. Because the prosecution had subpoenaed them, there was already 
    an order for them to testify.                                        
Garay, 903 N.W.2d at 888–89 & n.1.                                        
    The extraordinary remedy of habeas corpus lies only for a violation of the Constitution. 28 
U.S.C. § 2254(a). As the Supreme Court explained in Estelle, an inquiry whether evidence was 
properly admitted or improperly excluded under state law “is no part of the federal court’s habeas 
review of a state conviction [for] it is not the province of a federal habeas court to re-examine 
state-court determinations on state-law questions.” 502 U.S. at 67–68. The decision of the state 
courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S. 78, 
84 (1983); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a 
state court’s interpretation of state law, including one announced on direct appeal of the challenged 

conviction, binds a federal court sitting in habeas corpus.”). Thus, the court of appeals’ conclusion 
that  the  trial  court  properly  deemed  N  and  T  unavailable  and  admitted  their  preliminary 
examination testimony under the Michigan Rules of Evidence is axiomatically correct. 
    It is possible that an evidentiary ruling—even a ruling that is axiomatically correct under 
state law—still violates due process. State-court evidentiary rulings can rise to the level of due 
process violations if 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) (quotation marks omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); 
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). This approach accords the state courts wide 
latitude in ruling on evidentiary matters. Seymour, 224 F.3d at 552 (6th Cir. 2000). 

    Further, under the AEDPA, this Court may not grant relief if it would have decided the 
evidentiary question differently. The Court may only grant relief if Petitioner is able to show that 
the state court’s evidentiary ruling was in conflict with a decision reached by the Supreme Court 
on a question of law or if the state court decided the evidentiary issue differently than the Supreme 
Court did on a set of materially indistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860 
(6th Cir. 2000); see also Stewart v. Winn, 967 F.3d 534, 538 (6th Cir. 2020) (stating that, to obtain 
habeas relief based on an allegedly improper evidentiary ruling, a petitioner must identify “a 
Supreme Court case establishing a due process right with regard to the specific kind of evidence 
at issue”).                                                               
    Petitioner has not met this difficult standard with respect to the question concerning 
unavailability. Indeed, in the context of review under the AEDPA, the Supreme Court has 
explicitly  cautioned  against  disturbing  a  state  court’s  reasonable  conclusion  regarding 
unavailability:                                                           

    [W]hen a witness disappears before trial, it is always possible to think of additional 
    steps that the prosecution might have taken to secure the witness’ presence, see 
    [Ohio v. Roberts, 448 U.S. 56, 75 (1980)], but the Sixth Amendment does not 
    require  the  prosecution  to  exhaust  every  avenue  of  inquiry,  no  matter  how 
    unpromising. And, more to the point, the deferential standard of review set out in 
    28 U.S.C. § 2254(d) does not permit a federal court to overturn a state court’s 
    decision  on  the  question  of  unavailability  merely  because  the  federal  court 
    identifies additional steps that might have been taken. Under AEDPA, if the state-
    court decision was reasonable, it cannot be disturbed.               
Hardy v. Cross, 565 U.S. 65, 71–72 (2011).                                
    In his § 2254 petition, Petitioner argues that the trial court erred in declaring N and T 
unavailable to testify because “there was never anything shown to the court that there had been 
threats made toward these two witnesses.” (§ 2254 Pet., ECF No. 1, PageID.17.) Petitioner 
suggests that N and T, as well as their father, should have been held in contempt, and that the trial 
court should have “determine[d] the truth of the statement that they had been threatened.” (Id.) 
Essentially, Petitioner reiterates the arguments that he raised before—and that were rejected by—
the court of appeals. Petitioner, therefore, fails to explain how the court of appeals’ resolution of 
the issue is unreasonable under clearly established federal law. Given the explanation provided by 
the prosecutor as well as N and T’s father, and given the fact that N and T’s father refused to 
respond to the trial court’s attempts to contact N and T through him, the court of appeals reasonably 
determined that the trial court had properly deemed N and T unavailable to testify. Thus, the court 
of appeals reasonably determined that both N and T were unavailable within the meaning of the 
Confrontation Clause.                                                     
         2.   Prior Opportunity for Cross-Examination                    
    The court of appeals then noted that Petitioner had been able to cross-examine N and T at 
his preliminary examination and, therefore, that admission of their preliminary examination 
testimony at Petitioner’s trial did not violate his Confrontation Clause rights. Garay, 903 N.W.2d 
at 889.                                                                   

    The United States Court of Appeals for the Sixth Circuit has noted that there exists “some 
question whether a preliminary hearing necessarily offers an adequate prior opportunity for cross-
examination for Confrontation Clause purposes.” Al-Timimi v. Jackson, 379 F. App’x 435, 437–
38 (6th Cir. 2010) (citing, inter alia, Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 2007)) 
(doubting whether “the opportunity to question a witness at a preliminary examination hearing 
satisfies  the  pre-Crawford  understanding  of  the  Confrontation  Clause’s  guarantee  of  an 
opportunity  for  effective  cross-examination”  (internal  quotation  marks  omitted)).  Thus, 
Petitioner’s challenge is certainly colorable. However, the Supreme Court has never held that a 
defendant’s Confrontation Clause rights are violated when a witness is unavailable for trial and 
the trial court admits that witness’s preliminary examination testimony. See id. at 438. Thus, for 

purposes  of  federal  habeas  review,  the  Sixth  Circuit  has  concluded  that  a  state  court’s 
determination  that  preliminary  examination  testimony  was  properly  admitted  is  not  an 
unreasonable application of clearly established Supreme Court precedent. Id. at 438–40; see also 
Williams v. Bauman, 759 F.3d 630, 636 (6th Cir. 2014) (citing Al-Timimi with approval and 
upholding on habeas review the admission of testimony from the petitioner’s own preliminary 
examination).                                                             
    In  his  §  2254  petition,  Petitioner  vaguely  asserts  that  he  did  not  have  an  adequate 
opportunity to cross-examine N and T at the preliminary examination because “there was a limited 
amount of discovery and/or a limited amount of investigation and preparation for meaningful 
confrontation.” (§ 2254 Pet., ECF No. 1, PageID.19.) Petitioner, however, fails to explain how 
counsel’s cross-examination of N and T would have been more complete had he received more 
discovery from the State or had more time to prepare.                     
    In sum, Petitioner fails to demonstrate that the court of appeals’ rejection of his argument 

concerning N and T’s unavailability and the admission of their preliminary examination testimony 
at trial is contrary to, or an unreasonable application of, clearly established federal law, particularly 
Crawford. Petitioner, therefore, is not entitled to relief with respect to habeas ground I. 
    B.   Ground II—Juror Misconduct                                      
    As his second and final ground for relief, Petitioner contends that his right to a fair trial 
was violated when jurors engaged in misconduct. (§ 2254 Pet., ECF No. 1, PageID.20.) 
    A criminal defendant is constitutionally entitled to a trial “by an impartial jury.” See U.S. 
Const. amend. VI; see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (noting that the “right to jury 
trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors”). 
This guarantee reflects the requirement that a jury arrive at a verdict solely “based upon the 
evidence developed at the trial.” Turner v. Louisiana, 379 U.S. 466, 472 (1965) (quoting Irvin, 

366 U.S. at 722).                                                         
    Due process, however, “does not require a new trial every time a juror has been placed in 
a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 2017 (1982). “When a trial 
court is presented with evidence that an extrinsic influence has reached the jury which has a 
reasonable potential for tainting that jury, due process requires that the trial court take steps to 
determine what the effect of such extraneous information actually was on that jury.” Ewing v. 
Horton, 914 F.3d 1027, 1030 (6th Cir. 2019) (quoting Nevers v. Killinger, 169 F.3d 352, 373 (6th 
Cir. 1999), abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000)). 
    The Supreme Court has “long held that the remedy for allegations of juror partiality is a 
hearing in which the defendant has the opportunity to prove actual bias.” Smith, 455 U.S. at 215. 
Such a hearing, referred to as a Remmer1 hearing, must be held once a defendant raises a “colorable 
claim of extraneous influence.” See United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005). To 

assert a colorable claim, a defendant “must do more than simply raise the possibility of bias.” Id.  
    Petitioner raised his juror misconduct claim on direct appeal, and the Michigan Court of 
Appeals rejected it. The court of appeals first noted that a trial court’s decision to grant or deny a 
motion for a new trial based upon allegations of juror misconduct is reviewed for abuse of 
discretion. See Garay, 903 N.W.2d at 889. The court of appeals then stated: 
    [Petitioner] sought to show that the jury was subject to extraneous influences 
    through the affidavit and testimony of Juror DG. Firmly established in the common 
    law is a prohibition against the admission of juror testimony to impeach a jury 
    verdict. People v. Fletcher, 260 Mich. App. 531, 539, 679 N.W.2d 127 (2004). The 
    only recognized exception to this rule relates to situations in which the jury verdict 
    was affected by an extraneous influence. Id. Thus, when there is evidence to suggest 
    that the verdict was affected by an influence external to the trial proceedings, a 
    court may consider juror testimony to impeach a verdict. Id. But when the alleged 
    misconduct relates to influences internal to the trial proceedings, a court “may not 
    invade the sanctity of the deliberative process.” Id. The distinction between external 
    and internal influences is not based on the location of the alleged misconduct. 
    Budzyn, 456 Mich. at 91, 566 N.W.2d 229. “Rather, the nature of the allegation 
    determines whether the allegation is intrinsic to the jury’s deliberative process or 
    whether  it  is  an  outside  or  extraneous  influence.”  Id.  “Generally  speaking, 
    information is deemed ‘extraneous’ if it derives from a source ‘external’ to the jury. 
    ‘External’ matters include publicity and information related specifically to the case 
    the jurors are meant to decide, while ‘internal’ matters include the general body of 
    experiences that jurors are understood to bring with them to the jury room.” Warger 
    v. Shauers, 574 U.S. ––––, 135 S. Ct. 521, 529, 190 L. Ed. 2d 422 (2014) (citation 
    omitted).                                                            
Garay, 903 N.W.2d at 890.                                                 
    Petitioner contends that the jury was subject to extraneous influences in two ways: (1) that 
the jurors used their cell phones throughout deliberations; and (2) that Juror 8 told the other jurors 

1 Remmer v. United States, 347 U.S. 227 (1954).                           
that he knew Officer Latham well, that Officer Latham was an expert in firearms, and that the 
jurors could confidently believe Officer Latham’s testimony. The court of appeals first addressed 
Petitioner’s argument regarding use of cell phones, stating:              
    [Petitioner] claims that the jurors were subject to extraneous influences through 
    their use of cell phones during deliberations. Juror DG testified that jurors, himself 
    included, used their cell phones during breaks. Juror DG used his cell phone for 
    text messaging, and he had no personal knowledge for what purposes the other 
    jurors used their cell phones. Accordingly, [Petitioner] has not established that the 
    jury was subject to any extraneous influence through the use of cell phones. Budzyn, 
    456 Mich. at 88–89, 566 N.W.2d 229.                                  
Garay, 903 N.W.2d at 890.                                                 
    A  state  court’s  findings  regarding  juror  partiality  are  questions  of  fact  that  are 
presumptively correct under 28 U.S.C. § 2254(d). See Smith, 455 U.S. at 218 (citing Sumner v. 
Mata, 449 U.S. 539, 551 (1981)). Here, Petitioner offers no evidence, much less clear and 
convincing  evidence,  to  overcome  this  presumption  with  respect  to  the  court  of  appeals’ 
conclusion that the jury was not subject to any extraneous influence when they used their cell 
phones during breaks. Petitioner does not even discuss the court of appeals’ conclusion regarding 
the jurors’ use of cell phones in his § 2254 petition. Instead, Petitioner addresses it in his reply. 
(ECF No. 6.) Petitioner asserts in a conclusory manner that “[t]he very fact of several juror[s] use 
of cell phones in contact with individuals ‘outside of the deliberation process’ . . . is indicative of 
a high probability . . . that unconstitutional acts, behavior, conversations, and decision making 
occurred.” (Id., PageID.2248.) Petitioner, however, provides no evidence, much less clear and 
convincing evidence, that any juror used his or her cell phone to discuss Petitioner’s criminal 
proceedings with any outside individuals while the jury was deliberating. For these reasons, 
Petitioner has not demonstrated that the court of appeals’ rejection of this argument is contrary to, 
or an unreasonable application of, clearly established federal law. Accordingly, Petitioner is not 
entitled to relief with respect to this aspect of habeas ground II.       
    Next, the court of appeals considered Petitioner’s arguments regarding Juror 8 and his 
opinions regarding Officer Latham, stating:                               
    [Petitioner] also claims that the jury was subject to extraneous influences through 
    Juror 8. According to Juror DG, Juror 8 told the jurors that he knew Officer Gary 
    Latham well, that Officer Latham was an expert in firearms, and that they could be 
    extremely confident in Officer Latham’s testimony. [Petitioner] has not established 
    that the jury was subject to an extraneous influence through Juror 8. Id. Internal 
    matters include the general body of experiences that jurors are understood to bring 
    with them to the jury room. Warger, 574 U.S. at ––––, 135 S.Ct. at 529. Juror 8’s 
    statements regarding Officer Latham were based on his own personal knowledge 
    of and experience with the officer. The statements were not based on anything that 
    Juror 8 had read or heard about the case. While Juror 8 should have disclosed his 
    relationship with Officer Latham during voir dire, Juror 8’s statements did not 
    provide him or the other jurors with any knowledge regarding Day’s murder. Id. at 
    ––––, 135 S. Ct. at 529.                                             
    Even if Juror 8’s statements were an extraneous influence, and assuming that there 
    was a real and substantial possibility that the statement could have affected the 
    jury’s verdict, Budzyn, 456 Mich. at 89, 566 N.W.2d 229, the error was harmless. 
    Although the testimony of the three witnesses who were with Day when he was 
    shot indicated that the only person they saw with a gun was Perez, Joshua Parker, 
    who lived in the area, testified that, based on the different “pops” he heard, there 
    were at least two, if not three, guns fired. Specifically, regarding [Petitioner], Parker 
    testified that he saw [Petitioner], holding a gun, come down the alley from Race 
    Street to James Street. He identified the gun that [Petitioner] had as the .16–gauge 
    shotgun that was later found by Detective Frederick Hug at the basement landing 
    of an abandoned house on James Street. Parker saw [Petitioner] put the shotgun in 
    the grass or thickets. About 15 to 20 minutes later, Parker saw [Petitioner] run down 
    the alley toward Race Street with the shotgun “laterally” by his knees. Parker then 
    heard multiple gunshots. Within 15 to 20 seconds, Parker saw [Petitioner] run down 
    the alley toward James Street. [Petitioner], who was still holding the shotgun, was 
    “visibly in a hurry.” T, who lived at the corner of Hays Park Avenue and James 
    Street, testified that she heard [Petitioner] and Perez talking about “airing out” any 
    members of the Washington Street Boys that they saw. T, as well as N, saw Perez 
    and [Petitioner] split up. Perez went down Hays Park Avenue, while [Petitioner] 
    went down the alley. After N and T heard gunshots, [Petitioner] came to their house. 
    According to them, as well as DeShawndra Spivey, who was visiting the two 
    sisters, [Petitioner] was wearing gloves and had bullets with him. Spivey testified 
    that [Petitioner] said, “[H]e shot.” Lieutenant Jeffrey Crump, an expert in firearms 
    identification, testified that the shotgun hull found in the alley by Officer Latham, 
    which was a Hornady .20–gauge SST slug, was fired from the .16–gauge shotgun. 
    Lieutenant Crump also testified that the bullet recovered from Day’s chest and the 
    sabot found by Officer Latham on the sidewalk south of the alley were consistent 
    with the bullets and sabots in the Hornady .20–gauge SST slugs that Lieutenant 
    Crump  purchased.  Additionally,  Officer  Latham  testified  that  the  bullet  he 
    recovered from the tire of the Cadillac, which was parked on Race Street in front 
    of the area where Day was shot, was consistent with a Hornady .20–gauge SST slug 
    and that, because of the location of the hole in the tire, the bullet had to have come 
    from “the north, northeast” of where it had  entered the tire.  In light of this 
    testimony, the alleged error that exposed the jury to extraneous influence was 
    harmless beyond a reasonable doubt. Budzyn, 456 Mich. at 89, 566 N.W.2d 229. 
    The evidence of [Petitioner’s] guilt was overwhelming.               
Garay, 903 N.W.2d at 890–91.                                              
    In his § 2254 petition, Petitioner contends that the court of appeals erred in denying this 
portion of his juror misconduct claim because “Juror 8 knew Officer Latham and came into 
deliberations  using  his  personal  knowledge  of  Officer  Latham  as  [a]  significant  factor  in 
deliberations—this  knowledge  being  an  extraneous  influence.”  (§  2254  Pet.,  ECF  No.  1, 
PageID.22.) Petitioner also notes that “[i]t appears Juror 8 used this personal knowledge to 
influence other jurors to reach the ultimate conclusion of a verdict of guilt.” (Id.) 
    In his reply, Petitioner reiterates the arguments raised both on direct appeal and in his  
§ 2254 petition. Petitioner contends that the trial court did not resolve the matter regarding Juror 8 
“in an adequate or appropriate manner” because Juror 8 was not “compelled to attend and testify 
at [a post-trial] hearing.” (ECF No. 6, PageID.2246.) Petitioner suggests that the court of appeals’ 
conclusion that the jury was not subject to any extraneous influence from Juror 8 and that, even if 
the jury was, any such error was harmless, is “fatally flawed.” (Id., PageID.2247.) 
    As this Court has already noted, a state court’s findings regarding juror partiality are 
questions of fact that are presumptively correct under 28 U.S.C. § 2254. See Smith, 455 U.S. at 
218 (citing Summer, 449 U.S. at 551). The court of appeals concluded that “Juror 8’s statements 
regarding Officer Latham were based on his own personal knowledge of and experience with the 
officer,” and that the statements made by Juror 8 during deliberations “were not based on anything 
that Juror 8 had read or heard about the case.” Garay, 903 N.W.2d at 890. The court of appeals 
concluded that such statements did not constitute an impermissible extraneous influence upon the 
other jurors. See id. Petitioner offers no evidence, much less clear and convincing evidence, to 
overcome this presumption.                                                
    Although Petitioner contends that the trial court should have held a hearing and taken 
sworn testimony regarding the statements Juror 8 made concerning Officer Latham, as set forth 

above, a trial court is required to hold a Remmer hearing regarding juror partiality only after a 
defendant raises a “colorable claim of extraneous influence” that does more than “simply raise the 
possibility of bias.” See Owens, 426 F.3d at 805. Here, Petitioner has not presented any evidence 
to overcome the state courts’ conclusion that Petitioner had not raised a colorable claim of 
extraneous influence before the trial court—he did not present any evidence to suggest that Juror 
8 had impermissibly influenced the other jurors with extraneous influences. Thus, any suggestion 
that the trial court erred by not conducting a Remmer hearing does not entitle Petitioner to federal 
habeas relief.                                                            
    Moreover, as set forth above, the court of appeals concluded that even if Juror 8’s 
statements regarding Officer Latham qualified as extraneous influences, any error that occurred 

was harmless given the overwhelming evidence against Petitioner. See Garay, 903 N.W.2d at 891. 
A claim of juror misconduct premised upon extraneous influences is subject to harmless error 
analysis. See Doan v. Brigano, 237 F.3d 722, 738 (6th Cir. 2001), overruled on other grounds by 
Wiggins v. Smith, 539 U.S. 510 (2003). The impact of an error on the outcome of the proceedings 
is also the focus of federal harmless error analysis. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 
623 (1993) (adopting as the standard for determining whether habeas relief if appropriate “whether 
the . . . error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ 
”); O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (posing the question as “Do I, the judge, think 
that the error substantially influenced the jury’s decision?”); Brown v. Davenport, 596 U.S. 118, 
126 (2022) (stating that “a state prisoner . . . must show that the error had a ‘substantial and 
injurious effect or influence’ on the outcome of his trial” (quoting Brecht, 507 U.S. at 637)). A 
state appellate court’s decision that the error was not outcome determinative is the equivalent of a 
determination that the error was harmless under Brecht. Kyles v. Whitley, 514 U.S. 419, 435–36 

(1995).                                                                   
    Brown states that “a state court’s harmless-error determination qualifies as an adjudication 
on the merits under AEDPA.” 596 U.S. at 127. Accordingly, the Court must defer to that 
adjudication under § 2254(d)(1) unless the “petitioner persuades [the Court] that no ‘fairminded 
juris[t]’ could reach the state court’s conclusion under [the Supreme] Court’s precedents.” Id. at 
1525 (quoting Davis v. Ayala, 576 U.S. 257, 269 (2015)). This is a standard that is intentionally 
difficult to meet. See Woods, 575 U.S. at 316.                            
    In his petition and reply, Petitioner reiterates the arguments that he raised in—and that were 
rejected by—the court of appeals. Although Petitioner suggests that the court of appeals erred in 
concluding that any alleged error regarding Juror 8 was harmless, Petitioner does not offer any 

argument or evidence suggesting that no fairminded jurist could come to the conclusion reached 
by the court of appeals under Supreme Court precedent. By failing to do so, Petitioner fails to 
demonstrate that any alleged misconduct had a “substantial and injurious effect or influence in 
determining the jury’s verdict.” Brecht, 507 U.S. at 637. As noted by the court of appeals, Joshua 
Parker testified that he saw Petitioner holding a gun, heard numerous gunshots, and then saw 
Petitioner run down an alley while still holding the shotgun. See Garay, 903 N.W.2d at 891. 
Petitioner then went to N and T’s house. Id. DeShawndra Spivey, who was visiting N and T at the 
time, saw that Petitioner was in possession of gloves and bullets, and that Petitioner said “he shot.” 
(Id.) Moreover, the State provided testimony that the bullets recovered from both the alley and the 
victim’s chest were fired from a .16-gauge shotgun, and Parker identified the .16-gauge shotgun 
recovered by law enforcement as the shotgun that he had seen Petitioner with at the time of the 
shooting. See id.                                                         
    Given Petitioner’s failure to persuade the Court that no fairminded jurist could reach the 

conclusion arrived at by the court of appeals, the Court will defer to the court of appeals’ 
determination. The Court’s deference to the court of appeals’ determination that any alleged 
misconduct by Juror 8 was harmless error necessarily leads to a conclusion that Petitioner has 
failed to demonstrate that the court of appeals’ rejection of this claim of juror misconduct is 
contrary to, or an unreasonable application of, clearly established federal law. Petitioner, therefore, 
is not entitled to relief with respect to this aspect of habeas ground II. 
    In sum, Petitioner has failed to demonstrate that the court of appeals’ rejection of his juror 
misconduct claim is contrary to, or an unreasonable application of, clearly established federal law. 
Accordingly, Petitioner is not entitled to relief with respect to habeas ground II. 
IV.  Certificate of Appealability                                         
    Under  28  U.S.C.  §  2253(c)(2),  the  Court  must  determine  whether  a  certificate  of 

appealability should be granted. A certificate should issue if Petitioner has demonstrated a 
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).  
    The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a 
certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). 
Rather, the district court must “engage in a reasoned assessment of each claim” to determine 
whether a certificate is warranted. Id. Each issue must be considered under the standards set forth 
by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. 
Consequently, this Court has examined each of Petitioner’s claims under the Slack standard. Under 
Slack, 529 U.S. at 484, to warrant a grant of the certificate, “[t]he petitioner must demonstrate that 
reasonable jurists would find the district court’s assessment of the constitutional claims debatable 
or wrong.” Id. “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude 
the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. 
Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full 

merits review, but must limit its examination to a threshold inquiry into the underlying merit of 
Petitioner’s claims. Id.                                                  
     The Court finds that reasonable jurists could not conclude that this Court’s denial of 
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate 
of appealability. Moreover, although Petitioner has failed to demonstrate that he is in custody in 
violation of the Constitution and has failed to make a substantial showing of the denial of a 
constitutional right, the Court does not conclude that any issue Petitioner might raise on appeal 
would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).  
                            Conclusion                                    
     The Court will enter a judgment denying the petition, as well as an order denying a 
certificate of appealability.                                             


Dated:    July 26, 2025              /s/ Robert J. Jonker                  
                                   Robert J. Jonker                       
                                   United States District Judge