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Case No. 4:10cv428-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL A. McDONALD,

Petitioner,

v. CASE NO. 4:10cv428-RH/CAS

MICHAEL D. CREWS,

Respondent.

_________________________________/

ORDER DENYING THE PETITION AND GRANTING

A LIMITED CERTIFICATE OF APPEALABILITY

By petition for a writ of habeas corpus under 28 U.S.C. § 2254, Michael A. 

McDonald challenges his Florida state-court convictions for sexual battery on, and 

lewd or lascivious molestation of, a four-year-old girl. The girl testified (when she 

was age five) by contemporaneous video transmission from a separate room in the 

courthouse, while the defendant remained in the courtroom. This order denies the 

petition not because this was permissible under the Confrontation Clause, but 

because the state courts’ conclusion that this was permissible under the 

Confrontation Clause was not contrary to, or an unreasonable application of, 

decisions of the United States Supreme Court, or based on an unreasonable 

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Case No. 4:10cv428-RH/CAS

determination of the facts in light of the evidence presented in the state-court 

proceeding. The convictions thus cannot be set aside under § 2254.

I

The petition is before the court on the magistrate judge’s 100-page report 

and recommendation, ECF No. 45, and the objections, ECF No. 50. The report 

and recommendation sets out the background and addresses each of the issues 

raised by the petition. 

Upon review of the report and recommendation, I appointed an attorney for 

Mr. McDonald and set the case for oral argument. I allowed each side to submit 

additional materials. Each side has had the opportunity to submit anything it chose

and has been fully heard. I have read the entire transcript of the trial and the other 

pertinent parts of the record. I have reviewed the issues with care and without 

deference to the report and recommendation. 

The report and recommendation is thorough and correct. It is adopted as the 

court’s opinion with additional comments summarizing the § 2254 standard of 

review, briefly addressing the video-transmission issue, and addressing a separate 

ineffective-assistance claim raised for the first time at oral argument.

II

A federal habeas court may set aside a state court’s ruling on the merits of a 

petitioner’s claim only if the ruling “was contrary to, or involved an unreasonable 

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application of, clearly established Federal law, as determined by the Supreme 

Court of the United States,” or if the ruling “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)(1)-(2). A long and ever-growing line of cases 

addresses these standards. See, e.g., Williams v. Taylor, 529 U.S. 362 (2000); 

Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117 (11th Cir. 2012). No purpose 

would be served by repeating here all the analysis set out in the many cases. 

III

Under the Confrontation Clause, a defendant has the right “to be confronted 

with the witnesses against him.” U.S. Const. amend. VI. This ordinarily means 

that the witnesses must testify live in the courtroom with the defendant present. 

The framers probably gave little thought to video transmission of testimony from a 

remote location, but video transmission is now feasible. Even so, unless the 

defendant consents, the Confrontation Clause prohibits the practice. See, e.g., 

United States v. Yates, 438 F.3d 1307 (11th Cir. 2006) (en banc) (disapproving 

video testimony of a witness who was out of the country and could not be 

subpoenaed to the trial). 

But there is a narrow exception for children who are alleged victims of 

sexual abuse. On this issue, the “clearly established Federal law, as determined by 

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the Supreme Court of the United States,” is set out in two decisions: Coy v. Iowa, 

487 U.S. 1012 (1988), and Maryland v. Craig, 497 U.S. 836 (1990). 

The report and recommendation correctly analyzes these decisions and an 

Eleventh Circuit decision applying them, Cumbie v. Singletary, 991 F.2d 715 (11th 

Cir. 1993). Together, Coy and Craig establish that child testimony cannot be 

presented remotely based only on a presumption of harm, but child testimony can

be presented remotely based on individualized findings that the child will suffer 

harm, not just from testifying in a courtroom, but from testifying in the defendant’s 

presence. 

Here, to justify the child’s remote testimony, the state presented the 

testimony of a clinical psychologist who examined the child for the first time on 

the morning of trial. Most of the psychologist’s testimony addressed the wrong 

issue—harm to the child from testifying at all, or from testifying without her 

mother present, not any marginal harm to the child from testifying in the 

defendant’s presence. But the psychologist did briefly touch on that subject, and 

the trial court explicitly found that the child would suffer harm from testifying in 

the defendant’s presence. This was not an unreasonable finding based on the 

limited evidence presented in the state-court proceeding.

It is hardly commendable that the state first notified the defense on the day 

before the trial that the state would attempt to present the child’s testimony 

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remotely. It is hardly commendable that the state arranged for an expert to 

examine the child on this subject only on the morning of trial. But the petition in 

this court does not raise this as an issue. The petition does not assert that the late 

notice was unconstitutional or that it otherwise entitles Mr. McDonald to relief. 

And any such claim in this court almost surely would have failed on procedural 

grounds: a state-court procedural default by failing to raise the issue on direct 

appeal, and in any event a failure to exhaust the claim in state court either on direct 

appeal or on collateral review. 

Whether the state’s factual showing was sufficient under Coy and Craig is 

far from clear. The issue, though, is not whether those decisions clearly authorized 

this remote testimony. The issue is whether those decisions clearly prohibited this 

remote testimony. The decisions did not. The state courts’ rejection of Mr. 

McDonald’s Confrontation Clause claim was not contrary to or an unreasonable 

application of federal law as determined by the United States Supreme Court. 

One final point deserves mention. Craig was a 5-4 decision. In the view of 

the four dissenting justices, the Confrontation Clause required in-court testimony 

with no exception for child victims of sexual abuse. In holding the contrary, the 

five-member majority relied heavily on Ohio v. Roberts, 448 U.S. 56 (1980). 

Under Roberts, reliability was a touchstone of Confrontation Clause jurisprudence. 

But Roberts has now been overruled. See Crawford v. Washington, 541 U.S. 36 

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(2004). Justice Scalia authored both the Craig dissent and the Crawford opinion 

for the Court. Craig thus might not be the Court’s last word on remote testimony 

of child victims. But none of this matters here; relief under § 2254 is available 

based only on clearly established federal law, not based on law that might later 

develop. 

The bottom line is this: the state courts’ rejection of the Confrontation 

Clause claim was not contrary to or an unreasonable application of federal law as 

determined by the United States Supreme Court or based on an unreasonable 

determination of the facts in light of the evidence presented in the state-court 

proceeding.

IV

Mr. McDonald noted at oral argument that his trial attorney’s crossexamination of a state witness brought out damaging testimony. The witness, a 

neighbor, was the first adult who learned of Mr. McDonald’s abuse of the child. 

On direct, the witness said she asked the child whether she had been touched 

inappropriately. The witness gave no indication of why she asked the question. 

That is, of course, an odd thing to ask a child, just out of the blue. On cross, the 

witness said she asked because the child had told her once before that Mr. 

McDonald touched her inappropriately, that the witness did not report this at the 

time but determined to be on the lookout, that Mr. McDonald soon left the 

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residence for an extended period, and that when he returned and had the child in 

his care for several hours, the witness asked the child about inappropriate contact, 

at the first available opportunity. Not a good cross-examination.

A claim of ineffective assistance of counsel is governed by Strickland v. 

Washington, 466 U.S. 668 (1984). To succeed, a defendant must show both 

deficient performance and prejudice. It is not at all clear Mr. McDonald could 

meet these standards. 

But Mr. McDonald could not prevail on this claim in this court in any event. 

First, the claim was not exhausted in state court. Second, the claim was not made 

in the petition in this court. Third, Mr. McDonald has not sought leave to amend to 

add this claim, and doing so apparently would be futile; the claim would not relate 

back to the date when the petition was filed and thus would now be barred by the 

one-year statute of limitations. Mr. McDonald is not entitled to relief on this 

claim.

V

For the reasons set out in the report and recommendation and this order, the 

petition is due to be denied.

Rule 11 of the Rules Governing § 2254 Cases requires a district court to 

“issue or deny a certificate of appealability when it enters a final order adverse to 

the applicant.” Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may 

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issue “only if the applicant has made a substantial showing of the denial of a 

constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); 

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 

893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting 

out the standards applicable to a § 2254 petition on the merits). As the Court said 

in Slack:

 To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing 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, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in 

order to obtain a certificate of appealability when dismissal is based on procedural 

grounds, a petitioner must show, “at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Id. at 484. 

Mr. McDonald has made the required showing on only a single issue: 

whether he is entitled to relief on the ground that the alleged child victim’s remote 

testimony violated the Confrontation Clause.

For these reasons,

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IT IS ORDERED: 

1. The report and recommendation is ACCEPTED and adopted as the 

court’s opinion.

2. The clerk must enter judgment stating, “The petition is DENIED with 

prejudice.” 

3. The motion for a certificate of appealability, ECF No. 51, is 

GRANTED IN PART. A certificate of appealability is granted on this issue: 

whether Mr. McDonald is entitled to relief on the ground that the alleged child 

victim’s remote testimony violated the Confrontation Clause.

4. The motion for leave to appeal in forma pauperis, ECF No. 52, is 

GRANTED.

5. The clerk must close the file. 

SO ORDERED on March 31, 2014.

s/Robert L. Hinkle

United States District Judge

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