Mix v. MacLaren

            UNITED STATES DISTRICT COURT                             
            EASTERN DISTRICT OF MICHIGAN                             
                  SOUTHERN DIVISION                                  
DANIEL RAY MIX,                                                           

     Petitioner,                                                     
v.                                 CASE NO. 2:16-cv-10909                 
                              HONORABLE SEAN F. COX                  
DUNCAN MACLAREN,                                                          
     Respondent.                                                     
_____________________________/                                            
     ORDER DENYING PETITIONER’S MOTION FOR                           
    A CERTIFICATE OF APPEALABILITY (ECF No. 27)                      
                     I.  Introduction                                
This is a habeas corpus case under 28 U.S.C. § 2254.  Petitioner filed an
amended habeas corpus petition challenging his state convictions for three counts
of  criminal  sexual  conduct  (CSC)  in  the  first  degree,  Mich.  Comp.  Laws  §
750.520b(1)(a), two counts of CSC in the second degree, Mich. Comp. Laws §
750.520c(1)(a); and one count of assault with intent to commit CSC involving
sexual penetration, Mich. Comp. Laws § 750.520g(1).  He raised multiple issues

about the pretrial proceedings, the state trial court, his former attorneys, and his
sentence.                                                                 
On  September  29,  2021,  the  Court  denied  the  amended  habeas  corpus

petition, declined to issue a certificate of appealability, and entered judgment in
respondent  Duncan  Maclaren’s  favor.    (ECF  Nos.  23  and  24.)    Petitioner  has
appealed the Court’s judgment.  (ECF No.  25.)                            

Before this Court is Petitioner’s motion for a certificate of appealability. 
(ECF No. 27).  Petitioner states that the issues on appeal are whether (1) trial
counsel  was  ineffective,  (2)  the  trial  court  erred  in  a  ruling  on  a  face-to-face

confrontation, (3) the trial court violated his right to due process by incorrectly
scoring an offense variable, and (4) appellate counsel was ineffective for failing to
raise issues on direct appeal.  (Id. at PageID.2438, ¶ 3.)                
Although  the  Court  declined  to  issue  a  certificate  of  appealability  in  its

dispositive opinion, Petitioner contends that his appellate issues are substantial, not
frivolous, and debatable among jurists.  He also contends that the Sixth Circuit
could resolve the issues differently from this Court.  (Id. at PageID.2440, ¶ 6.)  

                  II.  Legal Framework                               
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).  To satisfy this standard, Petitioner must show “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.”  Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation and internal quotation marks omitted).                          
“While this standard is not overly rigid, it still demands ‘something more
than the absence of frivolity.’ ”  Moody v. United States, 958 F.3d 485, 488 (6th

Cir. 2020) (quoting Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)).  “[A] court
should not grant a certificate without some substantial reason to think that the
denial of relief might be incorrect.”  Id.  When applying this standard,  

a  court  must  consider  not  only  the  merits  of  the  underlying
constitutional claim but also any procedural barriers to relief.  Buck v.
Davis,  –––  U.S.  ––––,  137  S.  Ct.  759,  777,  197  L.Ed.2d  1  
(2017); Slack, 529 U.S. at 484–85, 120 S.Ct. 1595; see also Dufresne 
v. Palmer, 876 F.3d 248, 254 (6th Cir. 2017).  To put it simply, a   
claim does not merit a certificate unless every independent reason to
deny the claim is reasonably debatable.                              
Id. (emphases in original).                                               
                     III.  Discussion                                
Petitioner has not supported his pending motion with any specific arguments
about appellate counsel or the trial court’s calculation of the sentencing guidelines.  
Instead, Petitioner seems to be saying that the Court unreasonably applied clearly
established federal constitutional law when it determined that his trial attorney was
not ineffective for failing to object to the trial court’s lack of findings on the use of
a witness screen.  (ECF No. 27, PageID.2440, ¶ 7.)  Petitioner also alleges that
another  court  could  disagree  with  this  Court’s  finding  that  his  right  to
confrontation was not violated.  (Id.)                                    
A.  Trial Counsel’s Failure to Object to the Use of a Witness Screen 
The  Michigan  Court  of  Appeals  agreed  with  Petitioner  that  defense

counsel’s failure to object to the use of a witness screen was unreasonable because
the trial court did not make the necessary findings for use of a witness screen.  The
Court  of  Appeals,  nevertheless,  concluded  that  Petitioner’s  claim  lacked  merit

because there was not a reasonable probability that the result of the trial court
would have been different absent counsel’s error.                         
This Court agreed that defense counsel’s failure to object to the use of a
witness screen did not constitute ineffective assistance.   The Court pointed out that

the preference for face-to-face confrontation at trial, “ ‘ must occasionally give
way  to  considerations  of  public  policy  and  the  necessities  of  the  case[.]’  ” 
Maryland v. Craig, 497 U.S. 836, 849 (1990) (quoting Mattox v. United States,

156  U.S.  237,  243  (1895)).    The  presence  of  “other  elements  of 
confrontation—oath,  cross-examination,  and  observation  of  the  witness’
demeanor—adequately ensures that the testimony is both reliable and subject to
rigorous adversarial testing in a manner functionally equivalent to that accorded

live, in-person testimony.”  Id. at 851.                                  
At  Petitioner’s  trial,  moreover,  there  was  evidence  that  the  complainant
feared Petitioner, and, as the Michigan Court of Appeals correctly observed,

the victim was physically present in the courtroom, testified under  
oath, and was subject to cross-examination, and the record suggests  
that the screen allowed the jury to see the victim.  Further, there was
other  acts  evidence  to  corroborate  the  victim’s  testimony,  and  her
testimony  was  corroborated  by  physical  evidence  of  her  unusually
thin hymen.                                                          
People v. Mix, No. 315355, 2014 WL 3512960, at *4 (Mich. Ct. App. July 15, 
2014).                                                                    
There is not a substantial reason to think that the Court’s denial of relief on
Petitioner’s  ineffective-assistance-of-counsel-claim  might  be  incorrect.
Accordingly,  the  Court  declines  to  grant  a  certificate  of  appealability  on

Petitioner’s ineffective-assistance-of-counsel claim.                     
    B.  The Trial Court’s Ruling on the Confrontation Clause         
Petitioner argues next that another court could disagree with this Court’s

reasoning on his related claim that the trial court deprived him of his right to a
face-to-face confrontation by allowing the complainant to testify through a two-
way  witness  screen.    The  Michigan  Court  of  Appeals  reviewed  Petitioner’s
confrontation claim for “plain error” because Petitioner did not present the issue to

the trial court.  Respondent, therefore, argued in his answer to the amended habeas
petition that Petitioner procedurally defaulted his claim, and this Court agreed. 
The Court also determined that Petitioner had not shown “cause” for his procedural

default or that a miscarriage of justice would occur if the Court did not adjudicate
the merits of his claim.                                                  
A claim that has arguable, or even obvious, merit, but is plainly barred by a
procedural default, should not receive a certificate of appealability.  Moody, 958

F.3d at 488.  Accordingly, the Court declines to issue a certificate of appealability
on  Petitioner’s  claim  that  the  trial  court  deprived  him  of  his  rights  under  the
Confrontation Clause.                                                     

                     IV.  Conclusion                                 
Petitioner  has  not  satisfied  the  standard  for  obtaining  a  certificate  of
appealability.  The Court, therefore, denies Petitioner’s motion for a certificate of
appealability.                                                            

                    s/Sean F. Cox                                              
                    Sean F. Cox                                      
                    United States District Judge                     
Dated:  November 10, 2021