NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0277n.06 No. 10-1604 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

CHRI STI NE JAC KSON, Petitioner-Appellant ,
v. CL ARI CE STOVAL L , Warden Respondent-

Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR T HE EASTERN DI STRI CT OF MI CHI GAN

O P IN I O N

BEF ORE: COL E and STRANCH, Circuit J udg es; CARR, Dist rict Judge. * COL E, Circuit J udg e. Petitioner Christine J ackson appea ls the district court’s denial of her petition for habea s co rp u s . T he district court g rante d a Certifica te of Appea lability to revie w J ackson’ s Confrontation Clause claims and, finding them meritless, we AFF I RM the j udg ment of the district court. I . BA CKGROUND I n April 2001, a Michig an jury convicted J ackson of two counts of first-deg ree preme ditated murder and two counts of conspirac y to commit first-deg ree murder, and she was later sentenc ed to

concur rent terms of life imprisonment without possibili ty of parole

. This conviction arose from the October 1998 murders of

Kevin Ga

rland a nd Mary Ann Simmons

.

The Honora

ble J ames G. Carr, Senior United States District J udg e for the Norther n District * of Ohio, sitting by

desig nation

.No. 10-1604

Jack son v. Stovall O n O c to b e r 7 , 1 9 9 8 , Timothy L ander s, J ackson’ s co-de fenda nt, ag ree d to sell three kil o g r a ms of coca ine to Michae l McConico. Rather than purcha se the drug s, McConico robbed L ander s and shot him in the leg

. L ander s blamed Gar land for this incident beca use Gar land introduced McConico to him, and L an d er s s o u ght reve ng e. L ander s, acc ompanied by J ackson, Eric W illis , and R onney J ohnson, trac ked down and killed Gar land and then Gar land’s g irl fr i en d, Simm ons. After these murders, L ander s, J ackson, Wil lis, a nd J ohnson left Michig an and drove to California. Fa cing the need to move some furniture in Michig an, J ackson and J ohnson returne d to Michig an in November 1998 and while there , police pull ed over J ohnson’s van and found a conce aled we apon. Johnson

was char g ed with car

rying a conce aled wea

pon, but the prosec utor later dropped t h e ch arg es in exchang e for

J ohnson’s testimony

at J ackson’ s and L ander s’s homicide trial. At trial, among the prosec ution’s witnesses wer e J ohnson, McConico, and Ang ela Wallace. J ohnson provided ey ewitness testimony of Gar land’s shooting as well as L ander s’s order to Willis and J ackson to “take car e” of Simm ons. McCon i co testified as to the motive, admitting that he

ro b bed and shot L ander s in the leg

. Wallace, a California attorney , testified as to her rol e i n repr esenting J ohnson on his concea led-we apon cha rg e. The prosec u t i o n ’s strateg y included the theory that J ackson hired Wallace to repr esent J ohnson in his wea

pon char g e in order to control J ohnson and preve nt him from implicating her in t h e murders. J ohnson testified that shortly afte r his arr est, Wallace visited his mother’s home in California, informing her that J ohnson was in tr ouble and offe ring to r epre sent him. At J ohnson’s

arr aig nment, Clarenc e Tucke r, a Michig an attorney , appea red and att em p t ed to provide repr esentation, which J ohnson declined. Wallace testified that she arr ang ed for Tucke r to appea r on - 2 -No. 10-1604

Jack son v. Stovall J ohnson’s behalf

. Wallace furth er t es tified, contra ry to the prosec utor’s expectations, that it was J ohns o n ’ s n e p h e w , not J ackson, who reta ined her in the conce aled- wea pon char g e, and indicated that she first met J ackson in Fe bruar y 1999, months afte r J ohnson’s arr aig nment. Wallace expli citly

s t at ed both that she was not asked by J ackson to repr esent J ohnson nor was she acquai n t ed wi t h J ackson in Fe bruar

y 1998, and then she was excused from further testimony in the trial and returne d to California. The next day , the prosec utor informed the trial court that he had obtained a copy of Wallace’ s g rand jury testimony from a California district court, which contained prior inconsistent statements reg arding Wallace’ s relatio n s h i p wi th J ackson. I n this g rand jury testimony , Wallace admitted to meeting J ackson in Mar ch 1998, not Fe bruar y 1999. As this f

act was direc tly contra dictory to he r in-court testimony , the prosec utor soug ht its admission for impeachme nt. The trial court instructed the prosec utor to subpoena Wallace and have her return to court to explain this prior inconsistent statement. The prosec utor contac ted Wallace, issued another subpoena, and made her trave l

arr ang ements. I n the following day s, the prosec utor unsucce ssfully tried to rea ch Wallace and eventua lly lear

ned from Wallace’ s sister that Wallace left for Texas, leaving no addre ss or telephone number. Wallace discontinued all contac t with the prosecutor and did not ar ri v e o n t h e fl ight the prosec utor arr ang ed for

her. Dec laring Wallace unavailable , the t ri al co urt permitted the prosec ution to use Wallace’ s g rand jury testimony for the limit ed purpose of impeachme nt. Prior to admitting the transcr ipt into the re cord, the trial court pr ovided a limiting instruction:

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Jack son v. Stovall First of all, th i s t es t i m ony can only be considere d in judging the cre dibilit y of the witness Ang ela W allace

. I t cannot be used for any other purpose, that is, it cannot be used as proof o f an y o f the fac ts stated in that transcr ipt. Ag ain, it can only be used to judge the cre dibilit y of the witness Ang ela Wallace and for no other purpose.

. . . I t cannot be used for

any other purpose . Ag ain, I ’ll repe at, it cannot be used as fac ts of any

of the stateme nts that are c ontained within the transc ript. Wallace’ s prior inconsistent statement wa s then enter ed into the re cord. Followi n g h er conviction, J ackson appea led to the Michig an Court of Appea ls, alleg ing Confrontation Clause violations, prosec utorial misconduct, ineffe ctive assi stance of counsel, violations of due proce ss, and evidentiary err ors. The appellate court found J acks o n ’s ar gu m ents meritless and denied relief

. See People v. Jack

son , No. 236360, 2004 WL 2913643 (Mich. Ct. App. Dec

. 16, 2004) (per cur iam). Wit h reg ard to J ackson’ s Confrontation Clause claims, the C ourt of Appea ls stated: The trial court’s decision to allow the prosec utor to introduce Ang ela Wallace’ s prior testimony in a fede ral case , for the limit ed purpose of impeaching her trial testimony , d id n o t contravene defe ndant’s confr ontation rig hts beca use th e Co n f

r o n ta ti o n Cl a u s e does not bar the use of testimonial statements for a purpose other than to establish the truth of the matter asser ted. We presume that the jury followed the li m i t i n g instruction give n by

the trial cour

t. Id. at *1 (citations omitted). J ackson then unsucce ssfully soug ht disc re t i o n ar y revie w in the Michig an Supreme Court. See People v. Jack son , 703 N.W.2d 812 (Mich. 2005) (table)

. On state collater al revie w, J ackson raised two g rounds for relief : ineffe ctive assistance o f co u n s el and the Confrontation Clause violati o n. The Way ne County Circuit Court denied both claims, and the Michig an Court of Appea ls and Michig an Supreme Court aff i rm ed. See People v. Jack son , 742 N.W.2d 379 (2007); People v . Jack son , No. 275785 (Mich. Ct. App. May 18, 2007).

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Jack son v. Stovall J ackson filed a petition for the writ of habea s corpus in the Easter n District of Mi ch i gan , advanc ing three g rounds for relief : a Confrontation Clause violation, ineffe ctive assistance of appellate counsel, a

nd prosec utorial misconduct. The dist rict court denied Jackson’s petition, but g rante d a Certificate of Appea lability (“COA” ) on the Confrontation Clause claim. J ackson timely appea led. I I . ANAL YSI S A. Standard of Review T h is Court revie ws a district court’s leg al conclusions, including its ultimate de c is io n to g r a n t

or deny the writ, de novo. Satterlee v. W olfenbarger , 453 F.3d 3 6 2 , 3 6 5 (6t h Cir. 2006) (Moore , Cole, Clay). J ackson filed his habea s petition in May 2007, afte r the eff ec t i v e date of the Antiterror ism and Effec tive Deat h P en al ty Act of 1996 (“A EDPA”), and s o AEDPA gover ns this C o u rt’s revie w of J ackson’ s claims. See 28 U.S.C. § 2254(d). Section 2254(d) imposes t h e following standard of

revie w in a habe as ca se: An application for a writ of habea s corpus on behalf of a person in custody pursuant t o t h e j udg ment of a State court shall not be gra nted wit h respe ct t o any clai m t h at was a djudicated on the me rits in St ate c ourt proce eding s unless the adjudication of the claim— (1) resulted i n a decision that was contrary t o , o r i n v olved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fa cts in light of the e vidence prese nted in the State cour t proce eding

. 28 U.S

. C

. § 2254(d). Under § 2254(d)( 1), an “unre asonable application” of clea rly established fede ral law occurs when “the state court identifies the corr ect g overning leg al principle from [t he - 5 -No. 10-1604

Jack son v. Stovall Supreme] Court’s decisions but unrea sonably applies that principle to the fac ts o f t h e p ri soner’ s

case .” W illiams v. Taylor , 529 U.S. 362, 413 (2000). “In order for a fe d er al co u rt to find a state court’s application of [S upreme Court] prec edent ‘unre asonable ,’ the state court’s decision must have been more than incorr ec t or err oneous. The state court’s application must have been ‘objec tively unrea sonable.’” W iggins v. Smith , 539 U.S. 510, 520-21 (2003) (citation omitted); see W illiams , 529 U.S. a

t 409. Section 2254(d)( 1) limit s “the sourc e of clea rly established law to [the Supreme] Court’s jurisprudence .” W illiams , 529 U.S. at 412. B. W allace’s Out- of-Court Stat eme nts T h e Six th Amendment g rants a criminal defe ndant the rig ht “to be confr onted wi t h t h e witnesses aga i n s t him.” U.S. Const. amend. VI

. The Supreme Court has interpre ted this rig ht to require that “[t] estimonial statements of witnesses absent from trial

. . . only [be admitted] wher e the decla rant is unavailable , and only wher e the d e f e n d a n t h a s h a d a p r io r o pportunity to cross-e x amine.” Crawf ord v. W ashington , 541 U.S. 36, 59 (2004). The term testimonial “applies at a m inimum to prior testimony at a preliminary hear ing, befor e a g rand jury , or at a former trial.” Id. at 68. Whil e this confr ontation rig ht applies on l y t o testimonial statements, see Davis v. W ashington , 547 U.S. 813, 823-26 (2006) , “[t] he Clause a lso does not bar the use of testimonial stateme nts f or purposes

o ther than establishing the truth of the matter asser ted.” Crawf

ord , 541 U.S. at 59 n. 9

. “T h e admission of a tes t i monial statement in and of itself is not enoug h to trig g er a violation of the Confrontation Clause. I nstead, the state ment must be used as he arsa y —in other words, it must be offe red for the truth of the matter asse rt ed

. ” Uni ted States v. Pugh , 405 F.3d 390, 399 (6th Cir. 2005). - 6 -No. 10-1604

Jack son v. Stovall J ackson alleg es that the admission of Wallace’ s g rand jury testimony violated the Confront at i o n C l ause, as it was an out-of-c ourt testimonial statement used ag ainst a criminal defe ndant without the opportunity for cross examination. Be cause this statement took place befor e

a g rand jury , it is undisputed that it was not subject to cross examination and that it was testimonial in nature

. See Crawf

ord , 541 U.S. at 68. What is disputed is whether the stat ement was used as hear say to prove the truth of the matter asser ted or solely as impeachme nt of Wallace’ s cre dibilit y . Only if the statement was used substantively , to prove the truth of the matter asser ted, does J ackson have a cog nizable Confrontation Clause claim. See id. at 59 n.9; Pugh , 305 F.3d at 399. When the trial court admitted Wallace’ s g rand jury testimony , it g ave a limit ing instruction, explaining the narr ow purposes for which the jury could consider the statement. That instruction stated, three separ ate times, that the statement could “only be conside red in judg ing the cre dibilit y

o f t h e wi t ness Ang ela Wallace” and that it could not “be used for any other purpose.” We m u s t presume that a jury follows a trial court’s instructions. See Richardson v. Marsh , 481 U.S. 200, 206 (1987); see also Shannon v. United States , 512 U.S. 573, 5 8 5 (1 9 9 4 ). Neve rtheless, J ackson contends that the statement was, in fac t, used substantively beca use it had impeachme nt value only if acc epted as true. Acc ording to J ackson, unless the j ury believed th e content of t he out-of-court

asser tion that Wallace knew J ackson in F ebrua ry 1998, Wallace’ s prior inconsistent statement had

no impeachme nt value; there fore , the prosec ution actua lly used the g rand ju ry testimony substantively

. J ackson’ s argument undere stimates the importance of prior inconsistent statements.

1

J ackson al so argues that the prosec utor improperly used Wallace’ s prior testimony 1 substantively during his rebuttal to closing argument

. Be cause this issue was raised as a - 7 -No. 10-1604

Jack son v. Stovall As the district court noted, “[t] he impeaching value of a prior inconsistent statement comes not from the fac t that the prior statement is true and the l at er s t at ement is false, but from the very fac t of inconsistency .” Jack

son v. Stovall , No. 2:08-CV-10094, 2010 WL 1754446, * 13 (E.D. Mich. 2010) (citing McCormick on Evidence § 34 (“The attack by prior in consi stent statement i s not based on the theory that the prese nt testimony is false and the former statement true. Rather, the attack rests on the notion that talking one way on the stand and another way previously

. . . rais[es] a doubt as to the truthfulness of both statements.” )). Reg ardle ss, the sole issue befor e this Court is not to deter mine t h e p re ci s e use of the statement, but rathe r whether the state court unrea sonably applied Supreme Cou rt p re ce d ent in finding that its admission did not violate the Confrontation Clause. The Michig an Court of Appea ls held that Wallace’ s statement “did not contr av ene [J ackson’ s] confr ontation rig hts beca use the Confrontation Clause does not bar the use of tes t i m o n i al s t atements for a purpose other than to establish the truth of the matter asser ted.” Jack

son , 2004 WL 2913643, at *1. All rele vant evidenc e sug g ests that the evidenc e was not admitted substantively : the prosec utor introduced it exclusively

as a prior inconsistent statement to ref lect on Wallace’ s cre dibilit y ; the trial court expressly limit ed its purpose to impeachme nt; and the trial court provided a clea r limit ing i n s t ru ct i o n t o the jury , prohibiting it f

rom considering the statement as substantive evidenc e. There fore , we are unable to

prosec utorial misconduct claim in J ackson’ s petition and it lies outside the s cope of the C OA, we lack jurisdiction to revie w this claim. 2 8 U. S

. C

. § 2253(c) (1) (“Unless a circ uit justice or judge issues a certificate of appea lability , an appeal may not be taken to the court of appeals . . . .”); see also W illis v. Jones , 329 F. App’x 7, 12 (6th Cir. 2009) (“Without a COA, a court of appea ls lacks jurisdiction over a de nial of habe as re lief.”)

. - 8 -No. 10-1604

Jack son v. Stovall conclude that the state court’s d et er m i n ation that Wallace’ s statement was admitted solely for impeachme nt purposes, and not hear say , is “objec tively unrea sonable.” See W iggins , 539 at 520-21. I I I . CONCL USI ON The district cour

t’s denial of the writ of habe as cor pus is AFF I RMED.

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