NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0259n.06 Nos. 10-1041/10-1104 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

RONAL D CL ARENCE BA BCOCK Petitioner-Appellee /Cross-Appellant

v. L I NDA M. METRI SH Respondent-Appe llant/Cross-Appellee ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI T ED STATES DI STRI CT COURT FOR T HE E AS T ERN DIS T R I C T OF MI CHI GAN

Be fore : GI BB ONS and SUTTON, Circ uit J udg es; ADAMS, District J udg e. * ADAMS, J

. Appellant, L inda Metrish, appea ls the district court’s g rant of Appellee , Ronald Ba bcock’ s, writ of habe as cor pus. I n her a

ppeal, Me trish asserts that the di strict court e rre d when it conclude d that the admission of Trooper Har e’s t es t i m o n y in violation of Ba bcock’ s Six th Amendment rig ht to confr ontation was not harmless err or. Ba bcock filed a cross-a

ppeal, essentially

asser ting violations of the Uniform Commercial Code. For the rea sons set forth below, we AFF I RM the judg ment of the district cour t. I. Background On December 8, 2004, Ba bcock was found g uilty

by a jury of possession of a f

irea rm by a felon, in violation of Mich. Comp. L aws § 750.224f an d p o ssession of a firea rm during the

* The Honora

ble J ohn R. Adams, United States District J udg e for the Norther n District of Ohio , sitti ng by desig nation.commission of a felony , in violation of Mich. Comp. L aws § 750.227b. Ba bcock was sentenc ed to 46 months to 360 m onths of imprisonment. The Michig an Court of Appe als summarized the fac ts in thi s case as follows: Def endant is a convicted felon. He was inelig ible to possess a fire arm a t all times rele vant to this case . Def endant’ s former g irlfriend, Shawn L es t er , t es tified that while they wer e still dating , defe ndant selec t ed a . 22 rifle from Wal-Mart and g ave her money with instructions to purcha se it for him. She purcha sed the g un and some ammunition and took it to her home, wher e defe ndant took the g un and demonstrated to he r how to loa d it. She insisted that defe ndant not remove the g un from her home beca

use she knew he was a felon a nd ineligible to possess it, but he never theless took it and the ammunition out with him the next day

. Cindy Pero, the sister of one of defe ndant’s friends testified that defe ndant took the g un to her house beca use he and his friend wer e g oing to shoot skeet with it. L ester later retrie ved the g un from Pero’s house afte r repor ting the matter to a police office r. L ester took the g un to Stella Sherman, who place d it in her husband’s g un safe

. L ester admitted that this was some time afte r she and defe ndant had broken up. State Police Offic er Hilary Har e retrie ved the g un from Sherman’s house and later interviewe d defe ndant at jail. Subsequent to his arr est, but prior to trial, Har e informed the prosec utor that she would be unavailable to testify at trial beca use she would be on her honey moon. See MRE 804(b)( 5)(A)

. The p ro s ec u t o r soug ht to adjourn the trial. I n lieu of an adjournment, the trial court order ed t h at t h e office r’s video deposition be taken. Def endant objected, but wa s p re sent at and cross-e x amined the office r during the deposition. At the deposi t ion, Har e testified, among other things, that defe ndant admitted to her at the jail interview that he had had L ester purcha se a .22 rifle, which he later remove d from L ester’ s residenc e and took to Pero’s residenc e. An ed i t ed transcr ipt of the deposition was rea d befor e the jury , aga i n over defe ndant’s objection. The videotape itself was not play ed fo r t he jury , althoug h the rec ord is unclea r whe ther some por

tion of it may

have be en play ed. People v . Babcoc k , 2006 WL 2739328, at *1 (Mich. Ct. App. Sept. 26, 2006) (pe r cur iam). Ba bcock appea led h i s co n v iction to the Michig an Court of Appea ls. He arg ued that the

rea ding of Trooper Har e’s testimony in lieu o f l i v e ap p ear ance at the trial violated his Six th Amendment rig ht to confrontation. The Michig an Court of Appea ls a g ree d. I t further conclude d, howeve r, t hat the error was harmless. Id. at *3. I n rea ching this conclusion, t he Mi chig an C ourt

2of Appea l s co n d u cted an examination of the rec ord “to evalua te whether it is clea r, bey ond a

rea sonable doubt, that the jury verdic t would have been the s am e ab s en t the err or.” Id

. (interna l citations and quotations omitted.) Specifica lly , the Court conclude d that Trooper Har e’s testimony

was “suff iciently redunda

nt that we do not believe defe ndant suffe red any prejudice as a result.” Id. Ba bcock filed leave to appea l this decision with the Michig an Supreme Court. I n May of 2007, the Michig an Supreme Court denied Ba bcock’ s application for leave “bec ause we are not persua ded that the questions prese nted should be re viewed by this Court.” People v . Babcoc k , 730 N.W. 2d 474, 474 (Mich. 2007) ( Markman, J., concurr ing)

. I n J uly of 2007, Ba

bcock filed an application for a writ of habea s corpus with the United States District Court in the Easter n District of Michig an, Southern Division. The matter was ref err ed
to a Mag istrate J udg e. Relevant to the instant appea l, Ba bcock arg ued that his rig ht to confr ontation had been violated. Metrish responde d. On October 28, 2009, the Mag istrate J udg e issued a repor t and rec ommendation (“R& R”), rec ommending that the district court g rant Ba bcock’ s petition. The R&R conclude d that the use of Trooper Har e’s deposition testimony at trial violated Ba bcock' s Six th Amendment rig ht to confr ontation and that the err or was not harmless. Metrish filed objections to the R&R and Ba

bcock responde d. On Dec ember 11, 200 9 , t h e d i s trict court overr uled Metrish’s objections, adopted the R&R, and conditionally g ra n t ed Ba b cock’ s writ. The matter was stay ed pending appea l. Metrish appea led the district court’s decision. Ba bcock filed a cross-a

ppeal. The matter is now bef ore this Court. Upon re view, we AFF I RM the judgment of the district court.

3II. Stand ard of Review

This case is g overne d by the Antiterror ism and Effe ctive Dea th Penalty Act (“A EDPA”) of 1996. "I

n revie wing a district court’s decision to g rant or d en y habea s relief , this Court revie ws questions of fact under a ‘cl ea rl y erroneous’ standard and questions of law de novo.” Johnson v. Sherry , 586 F.3d 439, 443 (6th Cir. 2009) (citation o m i tted). Under the Antiterror ism and Effe ctive Dea th Penalty Act (“A EDPA ”) , fede ral courts may g rant habea s relief if the state cour t ’s ad j u d ication of the claim resulted in a decision contra ry to, or unrea sonably apply i n g , clea rly established fede ral law, as deter

mined by the Supreme Court. 28 U.S.C. § 2254(d). Yet AEDPA’s “hig hly defe r e n tial standard

... demands that state-c ourt decisions be g iven the benef it of the doubt.” W

oodford v. Visciotti , 537 U.S. 19, 24, 123 S. Ct. 357, 154 L

. E d. 2d 279 (2002) (per curia m) (interna l quotation marks and citation omitted). “[A] fede ral habea s court may not issue the writ simply beca use that court conclude s in its i ndepende nt judgment that the s tate-c ourt decision applied [a Supreme Court case ] incorre ctly .” Price v. Vincent , 538 U.S. 634, 641, 123 S. Ct. 1848, 155 L

. Ed. 2d 877 (2003) (alter ations in orig inal) (interna l quotation marks and citation omitted ). “Rather , it is the habea s applicant’ s burden to show that the state court applied [that case] to the fac ts of his case in a n objectively

unrea sonable manner.” W oodford , 537 U.S. at 25, 123 S. Ct . 357. Dittrich v. W

oods , 419 F.App' x . 573, 576 (6th Cir. 2011). The particula

r issue on appea l is whether the admission of Troop er Hare’s testimony in violation of Babcoc k’s S ix th Amendment righ t t o co n frontation was harmless error. “We review

a habea s petitioner’s claim of Conf ront ation Clause violations for harmless err or.” Id. (citing Delaware v. Van Arsdall , 475 U.S. 673, 684 (1986))

. Ac co rdi ng ly , the appropr iate inquiry “is whether the err or ‘had substantial and inju ri o u s effect or influence in deter mining the jury ’s verdic t.’” Brecht v. Abrahamson , 507 U.S. 619, 637 (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946))

. The standard as set forth in Brecht does not require the petitioner to bear the burden of

es tablishing whether the err or was prejudicia l. Rather, the United States Supreme Cour t h as

4explained that the district court judge should ask him or herse lf “' Do I , the judge , think that the err or

substantially influence d the jury ’s decision? ' ” O’Neal v. McAninc h , 513 U.S. 432, 436 (1995). “I f the judg e is ce rtain that the e rror had no or a small eff ect, the verdic t must stand. Howeve r, if the
matter is so evenly balanc ed that the judge has ‘g rave doubts’ as to whether the tr i al er ro r h ad substantial or

injurious effe ct or influence in de termining the jury ’s verdic t, suc h that the matter is

so evenly balanc ed that he fee ls himself in a ‘virtual equipoise’ as to harmlessne ss, the judge must trea t the err or as if it wer e harmful and g rant the petitioner’s writ.” Jense n v. Romanowski , 590 F.3d 373, 378 (6th Cir. 2009), quoting O’Neal , 513 U.S. at 435 & 445; Stallings v. Bobby , 464 F.3d 576, 582 (6th Cir. 2006). At oral arg ument, Metrish arg ued that the applicable standard of revie w would be to first do the AEDPA analy sis and then, if succe ssful, conduct the “har mless b ey ond a rea sonable doubt” standard err or analy sis a s stated in Chapman v. Calif ornia , 386 U.S. 18 (1967). Metrish conce ded
t h at s h e d id not asser

t this arg ument below. Acc ording ly , Metrish’s asser tion of a double lay er standard of revie w has been forf eited. See United States v. Trist an–Madrigal , 601 F.3d 629, 636 n.2 (6th Cir. 2010); Armstrong v. City of Melv indale , 432 F.3d 695, 699–700 (6th Cir. 2006) (“the failure
to prese nt an issue to the district court forf eits the rig ht to have the arg ument addre ssed on appea l.”). III. Discussion

a. Metrish’s As signm ent of Error M et ri s h conce des that the introduction of Trooper Har e’s testimony at trial violated Ba bcock’ s Six th Amendment right t o confr ontat i o n . As such, we limit our review to whether the d i s t ri ct co urt err ed in deter mining that there was more than a “g rave doubt” as to whether th e admission of Trooper Har e’s testimony had a substantial a nd injurious e ffe ct on the jury ’s verdic t.

5I n deter mining whether a Confrontation Clause vi olation is harmless under Brecht , this Court has repe atedly ref err ed to the fac tors laid out in Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S.C t. 1431, 89 L .Ed.2d 674 (1986). Those fac tors include: (1) the importance of t he witness’ testimony in the prosecution’s case ; (2) whether the testimony was cumulative; (3) the prese nce or absenc e o f ev i d ence corr oborating or contra dicting the testimony of the witness on materia l points; (4) the extent of cross examination other wise permitted; and (5) the overa ll stre ng th of the prosec ution’s case

. Id. Jense n, 590 F.3d a t 379. Acc ording ly , we assess the prejudicia l impact of the admission of Trooper Har e’s testimony

u n d e r B r e c h t’

s “substantial and injurious eff ect” standard by examining the err or throug h application of the fa ctors set for

th in Van Arsdall

to the fac ts in thi s case . Jense n , 590 F.3d a t 379. i. The I mportance of Troope r Ha re’ s Testimony

in the Prosecution’s Case The Court initially notes that at the outset of trial, the jury was informed the parties stipulated that Ba bcock was a felon and ineligible to possess a firea rm on the date in question. Thus, the jury

was left with the question of whether Ba bcock actually possessed the firea rm. I t is clea

r that Trooper Har e’s testimony was very important to the prosec ution’s case . Although the prosec ution prese nted the ey ewitness testimony of Ba bcock’ s ex-girlf

riend, Shawn L ester, her testimony beca me much

more cre dible afte r the admission of Trooper Har e’s testimony

. Trooper Har e ex p lained that Ba bcock confe ssed that he transporte d the firea rm and that his fing erpr ints would be on the g un. The prosec ution could have easily fore seen that L ester’ s cre dibilit y as Ba bcock’ s ex-girlf

riend would be called into question, par

ticularly in light of the f

act that she repor

ted Babcoc k to police see mingly simult aneously

with the demise of their

rela tionship. The prosec ution further prese nted the testimony of Cindy Pero. Pero explained that Ba bcock broug ht the g un to her home. Pero testified that she had been friends with L ester for at least seven

6y ear s. S h e fu rt h er ex p l ained that she and L ester had di scussed the case the m orning of t rial. She

explained that she beca

me rea cquainted with Ba

bcock about a y ear and a half prior to the trial. She testified that she considere d him an acqua intance rathe r than a friend. Ag ain, the prosec ution could have r easona

bly fore seen a

potential bias issue with Pero’s testimony

. The prosec ution prese nted the testimony of Stella Sherm an . She explained that L ester broug ht the g un to her at work and asked her to take it to her home so that Ba bcock could not locate it. The next day , Sherman turned the g un over to Trooper Har e. Finally , Sherman testified that her husband is L ester’ s cousin. The prosec ution could have rea sonabl y fo re s ee n a bias issue with Sherman' s testimony

. The jury hear d portions of Trooper Har e’s video deposition. Trooper Har e s t ated that on Aug ust 6 , 2003, she i nterview ed Babc ock at the C ounty J ail about pos sibly possessing a firearm. She verifie d that Ba

bcock inf ormed he r that he ha d been living with L ester a nd that they had been in a rela tionship. Ba

bcock informed her that he looked at g uns at Wal-Mart for L ester. He explained that he wanted L ester to have protec tion. Ba bcock confirme d L ester’ s version of the events; that he picked the g un out, g ave her money and told her what to purcha se. Notably , Trooper Har e testified that she asked Ba

bcock whether he handled the g un, and he indicated that his fing erpr ints would be

on the rifle beca

use he was showing L ester how to use it. He further confirme d that he remove d the g un from the home beca

use L ester did not fee l comforta ble with it in her home. After ref reshing her memory with her police repor t, Trooper Har e testi fied that Ba bcock told h er that “like a dummy I took it to Cindy Knowland’ s residenc e, or Cindy Knowland at Sue Churchill’s residenc e in Akron.” Trooper Ha re s t at ed that Ba bcock told her that Cindy Knowland was Cindy Pero. Trooper Har e

7verifie d that she retrie ved the g un from Stella Sherman’s residenc e. She retrie ved the ammunition

from L ester. On cross-e x amination, Trooper Har e stated that she did not persona lly observe Ba bcock with the g un. She explained that she interviewe d L ester. Trooper Har e testified that L ester told her that she had fallen in love wit h Ba bcock and he moved i nto her home shortly there afte r. L ester stated that she made a big mistake on the date in question and that three day s later she and Ba bcock broke up. L ester told Trooper Har e that either the day of or the day afte r she boug ht the g un, Bab cock moved out of her

home. Acc ording ly , it is very

clea r that Troope r Ha

re’ s testimony

was e x tremely important to the p ro s ecution’s case . I t was nece ssary to overc ome the perc eived bias of all of the prosec ution’ s witnesses. More importantly , it was the only method by which the prosec ution could inform the jury of Ba bcock’ s confe ssion that h e had handled the g un and that he had transporte d the g un from L ester’ s home to Pero’s home. The p ro s ec u t o r highlig hted the importance of this testimony on rebuttal during closing statements. The prosec utor explained that Trooper Har e testified as t o Ba bcock’ s confe ssion. Specifically , the prosec utor stated:

There ’s y our verif

ication from the defe ndant himself. What better verific ation could y ou have? Sure we can g o and send this to the lab to g et prints off from it. Why ? Take more people’ s time, more people’ s money , when y ou have the evidenc e that y ou need alre ady befor e y ou? Evidence ! The defe ndant’s own statement. What would y ou rathe r have, what somebody told y ou happene d? And espec ially when that person is the person who’ s on trial, the defe ndant, his own statements, his own statements to Troope r Hilary Har e. ii. Cum ulative Evidenc e As explained above, the prosec ution prese nted the live witness testimony of L ester, Pero, and Sherman. L ester and Pero both testified that they observe d Ba bcock with a g un. Pero testified that

8Ba

bcock broug ht the g un to her house. Coupled with the stipulation that Ba bcock was ineligible to possess a firea

rm on the date in question, the Michig an Appea ls Court noted, “[t] his evidenc e alone would be sufficie nt t o conclude that the verdic t was unaff ecte d by Offic er Har e’s testimony , particula rly g iven that she did not persona lly witness defe ndant in possession of the rifle.” Babcoc k , 2006 WL 2739328, at *3 (Sept. 26, 2006). That there wa s sufficie nt evidenc e for a conviction without Trooper Har e' s testimony , howeve r, does not prove an absenc e of prejudice

. The evidenc e beca me ov er wh el m i n g with the addition of Trooper Hare’ s testimony

. As such, Trooper Hare’ s testimony bolsters the credibility of the other

testimony

as it corr oborate s much of the live e y e-w itness testimony

. Fur ther, Trooper Har e testified to B abcoc k’s confe ssion. Admission of a confe ssion is not

mere ly cumulative of other testimony

. “A confe ssion is like no oth er evidenc e. I ndeed, the defe ndant’s own confe ssion is probably the most probative and damag in g ev i d en ce that can be admitted ag ainst him.” Arizona v. Fulminante , 499 U.S. 279, 296 111 (1991). Whil e it is possible
to believe the jury could have found Ba bcock g uilty without the offe nding testimony , we have g rave doubts as to whether the unconstitutional admission of his confe ssion via Trooper Har e’s testimony did not have a

substantial effe ct on the jury ' s verdict. O'Neal , 513 U.S. at 436. iii. C orrobor ating or Conflicting Evidence De fe n s e counsel attempted to impeach L ester’ s testimony by highlig hting inconsistencies with Trooper Har e’s video deposition. These inconsistencies wer e very minor and do not take awa y from the fac t that Trooper Har e’s testim ony re gar d i ng Ba bcock’ s confe ssion was corroborated by L ester and Pero’s testimony

. Howeve r, the fac t that L ester’ s testimony varie d slightly from her previous statements is a ll the more proof of the importance of Trooper Har e’s testimony

. Wit hout

9it, the jury was left with the impression afte r Def ense Counsel’s cross-e x amination that L ester was

n o t b ei ng entirely truthful. Read in conjunction with Trooper Har e’s larg er corr oborative v i d eo deposition testimony , h o we v er , the i nconsistencies, in L ester' s testimony appea r t o be very minor and could be easily

overlooke d. T he jury submitt ed a question to the court that clea rly indicated that they ques t i o n ed t h e testimony prese nted. Specifica lly , the jury asked; “Did Mr. Ba bcock admit taking the g un from the house? ” The court issued a written response that stated: “Answe r, y es.” The jury also asked for the leg al definition of “possessed.” As the Mag istrate J udg e stated in his R&R, these questions when 1 viewed toge ther “strong ly indicate[] that the jury relied particula rly on Har e’s testimony in rea ching its verdic t.” The Mag istrate J udg e noted that the question was a “spec ific, targ eted question-whethe r petitioner had confe ssed to possessing the g uns-that was answe red only by Har e’s testimony .” We ag ree with t h e M agi strate J udg e’s view of these questions. I t become s clea r that in light of the vary ing testimony , the jury place d weig ht on Trooper Har e’s statements. Although the M i ch iga n Court of Appea ls declined to infer from thes e n otes that the jury found the live testimony to be unconvincing , this is not the standard this Court must apply

. Rather, this Court must ask itself “Do I , the judg e, think that the e rror substantially

influence d the jury ’s dec ision? ” O'Neal , 513 U.S. at 436. The a

nswer is une quivocally

“y es.” iv. Ex tent of Cross-Examination Otherwise Permitted Whil e Ba bcock was g iven the chanc e to cross examine Trooper Har e, this cross examination

was not eff

ective. I t a

ppear s that the video deposition w as taken prior to the trial court’s ruling on

1 Although the transcr ipt ref lects that the Court and the parties arg ued over the best way to answe r this question, the answer e ventually g iven to the jury

was not re ad into the re cord. 10Ba

bcock’ s motion t o suppress his statements to Troope r Har e. There fore , Ba bcock’ s counsel wa s forc ed to cross examine on the issue of admissibili ty and to focus ener g y and t i m e o n i ssues that

wer e soon there afte r deeme d unnece ssary . Fur ther, Ba bcock’ s counsel stated on the rec ord that he believed h e was “at a littl e bit of a disadvantag e beca use we didn’t know what the evidenc e was g oing—how

the evidenc e wa s g oing to c ome out at t he trial[ .]” As such, it would have be en ver y difficult for Ba

bcock’ s counsel to have been adequately prepa red to cross examine Trooper Har e as if she we re te stify ing live be fore the jury at trial. v. Streng th of Prosecution’s Case Wit hout Trooper Har e’s testimony , the prosec ution’s case was su b s t an t i al but not

overw helming. There was no phy sical evidenc e and the r e ma in in g w it n e s s e s w e r e p o te n

ti a ll y biased. As the Michig an Court of Appe als noted, the jury could have f

ound sufficie nt evidence to convict Ba bcock without Trooper Har e’s testimony

. But, Trooper Har e’s testimony , in conjunction with the live witness testimony , cre ated a n even strong er c ase f

or the prose cution. After a thoroug h analy sis of the fac tors set forth in Van Arsdall , this Court conclude s that Ba bcock suffe red a substantial and inju ri o u s ef fect from the inappropria te admission of Trooper Har e’s testimony

. b. Babcock’s Cross Appeal Much of Ba

bcock’ s cross appea l is nonsensical. Howeve r, the Court construes that Ba bcock has asser ted sever al arg uments under the Uniform Commercial Code (U.C.C.). He repe atedly insists that his case is g overne d by the U.C.C. This belief is incorre ct. As explained above, the instant case is g overne d b y t h e AEDP A. “As it s title implies, the Uniform Commercial C ode (UCC) g overns

comm er cial transac tions. See Mich. Comp. L aws § 440.1102(2) (desc ribing the purposes of

11Michig an’s UCC). I t is not a source of substantive rig hts in a criminal action.” Thompson v. Scutt ,

2 011 WL 2745934 (Jul y 13, 2011, W.D. Mich). Acc ording ly , Ba bcock’ s arg uments in his cross appea l are reje cted. IV. Conclusion The Court has revie wed both Metrish’s and Ba bcock’ s argum en t s on appea l. Finding no merit in either, for the rea sons descr ibed above, we AFF I RM the district court’s g rant of Ba bcock’ s petition.

12