NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0012n.06

No. 15-1831

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARIO ELIZONDO,

Petitioner - Appellant

v.

CATHERINE BAUMAN, Warden,

Respondent - Appellee 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN 

BEFORE: KEITH, BATCHELDER, and CLAY, Circuit Judges. 

DAMON J. KEITH, Circuit Judge. Petitioner Mario Elizondo (“Petitioner”) seeks 

review of the district court’s denial of his petition for writ of habeas corpus brought under 

28 U.S.C. § 2254. Following a criminal jury trial in the State of Michigan, Petitioner was 

convicted of Criminal Sexual Conduct in the first and second degrees in violation of Mich. 

Comp. Laws §§ 750.520b, 750.520c. Petitioner timely filed this appeal, arguing that the state

trial court judge pierced the veil of judicial impartiality in violation of his right to a fair trial 

under the Fifth and Fourteenth Amendments of the United States Constitution. Petitioner claims 

that his constitutional rights were violated when the trial judge took on the role of prosecutor by 

interrupting cross-examination on multiple occasions to question Petitioner regarding his 

testimony. The district court granted a Certificate of Appealability on this issue, and oral 

argument was held on October 19, 2016. 
No. 15-1831, Elizondo v. Bauman

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”) outlines the appropriate 

standard of review for this case. AEDPA provides that: 

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.

28 U.S.C. § 2254(d). After a thorough review of the record, the arguments presented by the 

parties, and the relevant case law, we conclude that the state court determination was not 

contrary to clearly established federal law. Although Petitioner cited to the Michigan Supreme 

Court case of People v. Stevens, 869 N.W.2d 233 (2015) to support the proposition that a trial 

judge’s questioning of defense witnesses in front of a jury can show partiality and violate a 

defendant’s right to a fair trial, Stevens has never been cited to or adopted by a federal court. It is 

well-established that, “[i]n conducting habeas review, a federal court is limited to deciding 

whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. 

McGuire, 502 U.S. 62, 68 (1991); Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir. 2010). 

“[W]e do not consider on habeas review a state court's determination of state law.” Railey v. 

Webb, 540 F.3d 393, 398 (6th Cir. 2008). Because no United States Supreme Court holding 

supports Petitioner’s claim of judicial bias flowing from a judge’s interrogation of a criminal 

defendant at trial, the state court proceeding did not result in a decision that was contrary to 
No. 15-1831, Elizondo v. Bauman

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clearly established federal law.1 See Carey v. Musladin, 549 U.S. 70, 77 (2006). Accordingly, 

we AFFIRM the district court’s denial of Petitioner’s habeas petition under 28 U.S.C. § 2254.

 

1

 Since the Sixth Circuit cases cited by the concurrence were decided, the Supreme Court has made it 

abundantly clear that “circuit precedent does not constitute ‘clearly established Federal law, as determined by the 

Supreme Court’” when conducting a review under AEDPA. Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) 

(quoting AEDPA, 28 U.S.C. § 2254(d)); see also Renico v. Lett, 130 S. Ct. 1855, 1865–1866 (2010) (overturning 

the Sixth Circuit for failing to conform to AEDPA standard of review).
No. 15-1831, Elizondo v. Bauman

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CLAY, Circuit Judge, concurring. I concur in the majority opinion’s conclusion that 

we should affirm the district court’s denial of Elizondo’s habeas petition. I agree with my 

colleagues that Elizondo has failed to show that the state court’s resolution of his judicial bias 

claim “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[.]” 

28 U.S.C. § 2254(d). However, I write to clarify how my thinking diverges a bit from that of my 

colleagues. 

Specifically, the majority states that “because no United States Supreme Court holding 

supports Petitioner’s claim of judicial bias flowing from a judge’s interrogation of a criminal 

defendant at trial, the state court proceeding did not result in a decision that was contrary to 

clearly established law.” This language could be read to imply that no matter how egregious a 

judge’s intervention into the trial proceedings, or disruptive of the trial proceedings, a defendant 

would not be able to make out a claim of judicial bias. Contrary to the aforesaid statement 

contained in the majority opinion, this Court previously interpreted the Supreme Court’s decision 

in Liteky v. United States, 510 U.S. 540 (1994) to hold that a judge’s repeated interruption and 

cross-examination of witnesses could amount to a cognizable claim of judicial bias when 

circumstances appear “so extreme as to display clear inability to render fair judgment.” Lyell v. 

Renico, 470 F.3d 1177, 1186 (6th Cir. 2006); see also Alley v. Bell, 307 F.3d 380, 386 (6th Cir.

2002) (looking to the Supreme Court’s decision in Liteky for the standard for deciding judicial 

bias claims); Allen v. Hawley, 74 F. App’x 457, 460 (6th Cir. 2003) (Clay, J., dissenting).

Admittedly, claims of judicial bias present defendants with a difficult standard to meet. 

And the facts of this case indicate that Elizondo has failed to demonstrate that the trial judge’s 

interventions amounted to a constitutional violation. However, in light of the Supreme Court’s 
No. 15-1831, Elizondo v. Bauman

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holding in Liteky v. United States, supra, rather than assert that the state court proceedings failed 

to result in a decision that was contrary to clearly established law, I would simply emphasize that 

the trial court’s application of clearly established law was not unreasonable, based on the 

particular facts of this case, and would affirm on that basis.