UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KHALIL CHAHINE, # 534769

Petitioner,

CASE NO. 2:09-CV-11419

v. HONORABLE LAWRENCE P. ZATKOFF

GREG MCQUIGGIN,

Respondent.

__________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Khalil

Chahine was convicted of second-degree murder, MICH. COMP. LAWS § 750.317, assault with a

dangerous weapon, MICH.COMP.LAWS § 750.82, and possession of a firearm during the commission

of a felony, MICH.COMP.LAWS § 750.227b, in the Wayne County Circuit Court. He was sentenced

to 20 to 30 years imprisonment on the murder conviction, a concurrent term of two to four years

imprisonment on the assault conviction, and a consecutive term of two years imprisonment on the

felony firearm conviction in 2005. In his pleadings, Petitioner raises claims concerning the

exclusion of evidence and his right to present a defense, his right to confrontation, and the denial

of a discovery request and his right to due process. Respondent has filed an answer to the petition

contending that it should be denied. For the reasons stated, the Court denies the petition for a writ

of habeas corpus and denies a certificate of appealability.

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II. Facts and Procedural History

Petitioner’s convictions arise from the shooting death of Paul Hallis and an assault upon

Catherine Hallis in Dearborn, Michigan during the early morning hours of May 16, 2004. The

Michigan Court of Appeals provided a factual overview of the case, which is presumed correct on

habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753, 758 (E.D. Mich. 2001), aff’d. 41 F. App’x

730 (6th Cir. 2002), as follows:

This case involves the shooting death of the victim on May 16, 2004 in the city of

Dearborn. There was enmity between the victim and defendant arising out of their

affection for the same woman, Salwa Ali. Ali was defendant’s former girlfriend, but

she married the victim three months before his death. The shooting followed an

incident at a Detroit nightclub earlier in the evening in which defendant “jumped”

the victim inside the nightclub. Ali El-Ozeir, who is married to defendant’s sister,

Leila Chahine, accompanied defendant. Catherine Hallis, the victim’s cousin, Amar

Alkhafaji, Ibrahim Chahrour, and Ziad Souidan accompanied the victim on the

evening of the fatal shooting. After nightclub security ejected the fighting parties,

the altercation continued outside where the police restrained the victim, who had

removed his belt to use against defendant. Defendant and El-Ozeir fled in a black

Mercedes. The victim’s party, with the victim driving the Suburban, attempted to

locate defendant.

Later in the evening, the victim located the black Mercedes and started to follow it.

The Mercedes stopped or started to back up, and someone stood up through its open

sunroof and fired several shots at the Suburban. The victim was fatally wounded.

At trial, defendant disputed two issues related to the shooting itself: (1) did anyone

riding in the victim’s vehicle possess or fire a weapon and (2) was defendant the

person who fired the fatal shots while standing up through the black Mercedes?

All of the four surviving occupants of the Suburban denied having or firing a gun.

Three of the four identified defendant as the shooter in the black Mercedes. One

bystander witness called 911 and reported shooting between two vehicles. But at

trial, he testified that he actually only saw shots being fired from one vehicle; he did

not see shots fired from the Suburban. The prosecutor also presented the testimony

of a reluctant jailhouse witness who testified defendant admitted he was the shooter.

People v. Chahine, No. 263429, 2007 WL 601599 *1 (Mich. Ct. App. Feb. 27, 2007) (unpublished).

Following his convictions and sentencing, Petitioner filed an appeal of right with the

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Michigan Court of Appeals, essentially raising the same claims presented on habeas review. The

court denied relief on those claims and affirmed Petitioner’s convictions. Id. Petitioner then filed

an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard

order. People v. Chahine, 480 Mich. 1168, 747 N.W.2d 226 (2008).

Petitioner, through counsel, thereafter filed his federal habeas petition raising the following

claims as grounds for relief:

I. His rights to due process and a fair trial and to present a defense were

violated by the decision excluding evidence of the unavailable codefendant’s statement admitting that he was the shooter, where that statement

was admissible under MRE 804(b)(3) as an exception to the hearsay rule and

where admission would not have been inconsistent with the pretrial ruling of

the Court of Appeals because additional corroboration of that statement

establishing its trustworthiness was presented at trial.

II. His rights to present a defense and confrontation were violated where the

officer in charge was permitted to testify that Ali El-Ozeir’s statement was

not credible and Petitioner was prevented from confronting and impeaching

the testimony.

III. His rights to a fair trial and to present a defense were violated by the denial

of mid-trial requests for discovery of a series of audio cassette tapes that

were delivered to the state prosecutor by a federal prosecutor where both the

federal court and federal prosecutor indicated that the tapes were relevant to

the ongoing homicide trial and may have contained exculpatory material and

where the trial court refused to order the prosecution to review those tapes

and declined to conduct an in camera hearing as to the discoverability of the

tapes.

Respondent has filed an answer to the petition contending that it should be denied because the

claims are not cognizable and/or lack merit.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this case

because Petitioner filed his petition after the AEDPA’s effective date. See Lindh v. Murphy, 521

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U.S. 320, 336 (1997). The AEDPA provides:

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) (1996).

A state court’s decision is contrary to clearly established law if it “‘applies a rule that

contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that

are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at

a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per

curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S.

685, 694 (2002).

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to

‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

Court but unreasonably applies that principle to the facts of petitioner’s case.” Wiggins v. Smith,

539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694.

However, “[i]n order for a federal court to find a state court’s application of [Supreme Court]

precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus imposes

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a ‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court

decisions be given the benefit of the doubt.’” Renico v. Lett, _ U.S. _, 130 S. Ct. 1855, 1862 (2010)

(quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court has recently held that “a state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness

of the state court’s decision.” Harrington v. Richter, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a

strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.

(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must

determine what arguments or theories supported or . . . could have supported, the state court’s

decision; and then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court.

Id. Thus, in order to obtain habeas relief in federal court, a state prisoner must show that the state

court’s rejection of his claim “was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the

state court’s decision comports with clearly established federal law as determined by the Supreme

Court at the time the state court renders its decision. See Williams, 529 U.S. at 412; see also

Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held on

numerous occasions that it is not ‘an unreasonable application of clearly established Federal law’

for a state court to decline to apply a specific legal rule that has not been squarely established by this

Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v.

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Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require a state court to give reasons

before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington, 131 S. Ct.

at 785. Furthermore, it “does not require citation of [Supreme Court] cases – indeed, it does not

even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of

the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell,

540 U.S. at 16. While the requirements of “clearly established law” are to be determined solely by

Supreme Court precedent, the decisions of lower federal courts may be useful in assessing the

reasonableness of the state court’s resolution of an issue. See Stewart v. Erwin, 503 F.3d 488, 493

(6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones,

203 F. Supp. 354, 359 (E.D. Mich. 2002).

A state court’s factual determinations are presumed correct on federal habeas review. See

28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and

convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas

review is “limited to the record that was before the state court.” Cullen v. Pinholster, _ U.S. _, 131

S. Ct. 1388, 1398 (2011).

IV. Analysis

A. Exclusion of Statement as Substantive Evidence

Petitioner first asserts that he is entitled habeas relief because the state courts erred and

denied him due process and the right to present a defense by ruling that a statement made by his

brother-in-law, Ali El-Ozeir, while in custody in Lebanon, was not admissible as substantive

evidence at trial. Respondent contends that this claim is not cognizable and/or lacks merit.

The Michigan Court of Appeals described the statements as follows:

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El-Ozeir, defendant's brother-in-law, accompanied defendant on the evening of the

shooting. Thereafter, El-Ozeir purportedly fled to his native Lebanon. He allegedly

was taken into custody by Lebanese authorities in connection with the death of the

victim, who was also a Lebanese citizen. El-Ozeir gave three contradictory

statements regarding the shooting.

On September 9, 2004, El-Ozeir purportedly confessed to a Lebanese military

investigator that after defendant and the victim fought inside and outside a Detroit

nightclub, El-Ozeir obtained a handgun from a person named Escot. El-Ozeir also

stated that later in the evening, he and defendant were driving to El-Ozeir's house

when the victim surprised them and began chasing them in his vehicle. El-Ozeir

stated he saw that the victim “was holding a fire gun,” so El-Ozeir came out of the

sunroof and fired three shots at the victim's vehicle. El-Ozeir stated the next morning

the police came to his house, but he jumped out of a window and fled to Canada. He

then went from Canada to Syria, and then to Lebanon.

El-Ozeir gave a second statement on September 11, 2004, before an examining

magistrate, by then he had legal counsel. In this second statement, El-Ozeir denied

he shot the victim. Now, El-Ozeir stated there was conflict between the victim and

defendant over a woman in whom they both had a romantic interest. He described

the altercations inside and outside the Detroit nightclub. El-Ozeir stated that he was

driving with the defendant riding as a passenger when the victim in a large vehicle

“like a Hummer” began chasing them and shooting at them. Defendant came out of

the car's roof and started shooting a “military gun” at the vehicle the victim was

driving. El-Ozeir stated that he gave his first statement that was not true because

military police beat him.

El-Ozeir gave a third statement after defendant's father, defendant's trial counsel, a

court reporter, and a retired judge traveled to Lebanon. In response to defense

counsel's questioning, El-Ozeir stated that both he and defendant were drunk on the

evening in question. Defendant was driving and El-Ozeir was riding as a passenger.

Later, in Hamtramck, a person named Scott gave El-Ozeir a gun. El-Ozeir and

defendant went to various places until El-Ozeir saw what he believed to be the

victim's truck parked the wrong way. El-Ozeir stated defendant was still driving the

car. The truck followed them and the window of truck the came down and shooting

started. El-Ozeir then said:

“I hear two bullets. As soon as they shot the two bullets, I out of

control. All I know, I went out of the sunroof, I start shooting to scare

those people. I wasn't trying to shoot nobody. In my head, I was too

drunk.”

In the third statement, El-Ozeir claimed the first statement he gave was not coerced

and was the truth. El-Ozeir repeated that he was drunk and thought the victim wanted

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to hurt his family, to hurt him, and to kill defendant. He stated, “Right now he [the

victim] is shooting on us, so believe it is too serious at this point, I got to save my

life, save my family. At that second, I was too drunk, okay, this guy is trying to hurt

me right now, going to hurt my family.”

Chahine, 2007 WL 601599 *3.

Petitioner’s defense to the charges was that he was not the shooter and that the shooting was

done in self-defense/defense of others because the victims had firearms and shot at them. Prior to

trial, Petitioner moved to admit El-Ozeir’s third statement in which El-Ozeir claimed that he, and

not Petitioner, was the shooter and that he acted in self-defense. The trial court initially ruled that

the statement was admissible under Michigan Rule of Evidence 804(b)(3). On interlocutory appeal,

the Michigan Court of Appeals peremptorily reversed that decision and ruled that the statement was

inadmissible. The court explained:

The trial court abused its discretion in granting defendant's motion in limine to admit

a confederate's statement under MRE 804(b)(3). Although the declarant is

unavailable, his statement did not tend to subject him to criminal liability. He

admitted firing the gun at issue but stated both that he lacked the specific to intent

commit either crime [FN1] and that he acted in self-defense. The declarant is out of the

country and due to the absence of an extradition treaty between the United States and

Lebanon, he is unlikely to be prosecuted here. While defendant contends that the

declarant is being prosecuted for the same offense in Lebanon, the only evidence of

this is hearsay that has not been shown to be admissible. Therefore, the declarant's

statement did not tend to subject him to criminal liability that a reasonable person in

his position would not have made it unless believing it to be true. People v.

Barrera, 451 Mich 261, 270-272; 547 NW2d 280 (1996). In addition, the declarant's

statement has not been shown to be trustworthy. Although there is no dispute that the

declarant made the statement voluntarily, all other factors relevant to corroboration

preponderate against a finding of trustworthiness. Id. at 273-275, 289.

FN1. The two crimes were the murder of the victim and assault with intent to murder

Ms. Hallis.

Id. at *2 (quoting People v. Chahine, Mich. Ct. App. No. 260932, unpublished order issued on

March 15, 2005). Consequently, El-Ozeir’s out-of-court statements were not admitted as substantive

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evidence at trial.

Those statements, however, were deemed admissible for impeachment purposes during trial

after the prosecutor “opened the door” for their use by asking a police detective if he had “any

evidence” to suggest that someone other than Petitioner did the shooting and the detective responded

“none.” The trial court allowed Petitioner to impeach the detective with El-Ozeir’s statements, but

continued to deny his request to admit the statements as substantive evidence. Id.

Petitioner challenges the state courts’ evidentiary rulings. Alleged trial court errors in the

application of state evidentiary law are generally not cognizable as grounds for habeas relief. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dep’t of Corrections, 4 F.3d 1348,

1354 (6th Cir. 1993). “Trial court errors in state procedure and/or evidentiary law do not rise to the

level of federal constitutional claims warranting relief in a habeas action, unless the errors render

the proceeding so fundamentally unfair as to deprive the petitioner of due process under the

Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (quoting McGuire, 502

U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley,

500 F.3d 514, 519-20 (6th Cir. 2007)). Accordingly, to the extent that Petitioner asserts that the

state courts erred under Michigan law, he fails to state a claim upon which habeas relief may be

granted. State courts are the final arbiters of state law and the federal courts will not intervene in

such matters. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Bradshaw v. Richey, 546 U.S.

74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).

Petitioner nonetheless asserts that he was denied due process and the right to present a

defense. The right of an accused to present a defense has long been recognized as “a fundamental

element of due process.” Washington v. State, 388 U.S. 14, 19 (1967); see also Holmes v. South

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Carolina, 547 U.S. 319, 329-31 (2006) (state rule excluding evidence of third party guilt based

solely on strength of prosecution’s case violated defendant’s right to present a defense); Chambers

v. Mississippi, 410 U.S. 284, 302 (1973) (exclusion of hearsay statements critical to defense which

“bore persuasive assurances of trustworthiness,” coupled with refusal to permit cross-examination

of the declarant, violated defendant’s right to due process). However, “a defendant’s right to present

evidence is not unlimited, but rather it is subject to reasonable restrictions.” United States v.

Scheffer, 523 U.S. 303, 308 (1998). A defendant “does not have an unfettered right to offer

evidence that is incompetent, privileged, or otherwise inadmissable under standard rules of

evidence.” Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S. 400,

410 (1988)); see also Holmes, 547 U.S. at 326 (recognizing that “well-established rules of evidence

permit trial judges to exclude evidence if its probative value is outweighed by certain other factors

such as unfair prejudice, confusion of the issues, or potential to mislead the jury”). State rules

excluding evidence from criminal trials “do not abridge an accused’s right to present a defense so

long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”

Scheffer, 523 U.S. at 308 (internal citations omitted). “A defendant’s interest in presenting . . .

evidence may thus bow to accommodate other legitimate interest in the criminal trial process.” Id.

When deciding if the exclusion of evidence infringes upon a defendant’s rights, the question is not

whether the excluded evidence would have caused the jury to reach a different result. The question

is whether the defendant was afforded “a meaningful opportunity to present a complete defense.”

Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485

(1984)); see also Chambers, 410 U.S. at 302.

On direct appeal, the Michigan Court of Appeals denied relief on this claim applying the law

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of the case doctrine to affirm its prior ruling and finding that Petitioner failed to establish a

constitutional violation. The court explained in relevant part:

The issue previously decided by this Court was whether El-Ozeir's third statement

was admissible under an exception to the rule against hearsay for a statement by an

unavailable declarant when the

... statement which was at the time of its making so far contrary to the

declarant's pecuniary or proprietary interest, or so far tended to

subject the declarant to civil or criminal liability, ... that a reasonable

person in the declarant's position would not have made the statement

unless believing it to be true. A statement tending to expose the

declarant to criminal liability and offered to exculpate the accused is

not admissible unless corroborating circumstances clearly indicate

the trustworthiness of the statement. [MRE 804(b)(3).]

Here, defendant has failed to establish that El-Ozeir's third statement would tend to

subject him to criminal liability in a real and tangible way. So, defendant has failed

to establish that this Court's prior determination was clearly erroneous. We decline

to revisit this issue.

Next, contrary to defendant's argument, the trial record does not provide any basis

for concluding El-Ozeir's statement was trustworthy, so defendant has again

provided no basis for concluding that this Court clearly erred in its prior order. Nor

has defendant provided any basis for concluding that an injustice has occurred as a

result of the exclusion of El-Ozeir's statement as substantive evidence. This is

especially so in light of the fact that the trial court ruled during the course of the trial

that the prosecution had opened the door to placing before the jury for impeachment

purposes El-Ozeir's statements that he was the shooter, not defendant. Thus, there is

no reason not to apply the law of the case doctrine.

* * *

Defendant's final argument on this issue, that the exclusion of El-Ozeir's third

statement violated his constitutional right to due process is based on two false

premises: (1) that the statement bore assurances of trustworthiness and (2) that the

statement was critical to the defense. As more fully discussed above, El-Ozeir's

statements in Lebanon were correctly determined as a matter of law to bear

insufficient indicia of trustworthiness to be admissible under MRE 804(b)(3). The

very process of deciding admissibility of hearsay under that rule takes into

consideration the accused's constitutional right to present a defense. Barrera, supra

at 279. Further, defendant was not precluded from presenting his own testimony

regarding whether El-Ozeir was the shooter, or whether [the] shooting was an act of

self-defense. Additionally, defendant was able to spread before the jury, albeit for

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impeachment purposes, that El-Ozeir had made statements that he, not defendant,

was the shooter. Under these circumstances, defendant was not denied a fair trial. See

Chambers, supra at 303 (the facts and circumstances of each case must be examined

to determined if an evidentiary ruling denies an accused a fair trial).

Chahine, 2007 WL 601599 at *4.

The Michigan Court of Appeals’ decision is neither contrary to Supreme Court precedent

nor an unreasonable application thereof. Petitioner has failed to establish that the state courts’

rulings denied him due process. El-Ozeir’s third statement was inadmissible hearsay under the

Michigan Rules of Evidence and did not fit within the exception provided for statements against

penal interest. See Mich. R. Evid. 804(b)(3). The statement did not subject El-Ozeir to criminal

liability in the United States because he fled the country and was in Lebanon when he made the

statement and he was not subject to extradition. While the defense asserted that El-Ozeir would be

subject to prosecution in Lebanon, counsel offered no valid evidence to support that assertion or

show what punishment he could face. Moreover, El-Ozeir’s third statement was not truly a

statement against penal interest given that he asserted that he did not mean to hit anyone and claimed

that the shooting was done in self-defense, which would absolve him of criminal liability. See, e.g.,

United States v. Shryock, 342 F.3d 948, 981-82 (9th Cir. 2003) (discussing similar federal

evidentiary rule). Additionally, El-Ozeir’s third statement was not trustworthy given that it was

inconsistent with his prior statements in several respects and it directly conflicted with his second

statement in which he denied being the shooter. The statement was further subject to question

because of the familial relationships among the parties involved in the incident, i.e., El-Ozeir may

have made his statement to assist his brother-in-law in defending against a murder charge and

possible life sentence in the United States. Consequently, the state court’s refusal to admit the

statement as substantive evidence was reasonable and a matter within its discretion under state

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evidentiary rules. No due process violation occurred.

Second, the state courts’ evidentiary rulings did not deny Petitioner the right to present a

defense. Although the state courts did not allow El-Ozeir’s out-of-court statements to be admitted

as substantive evidence, the trial court allowed them to be used to impeach Detective Muscat’s

testimony, consistent with state evidentiary rules. The jury was thus aware that El-Ozeir made a

statement claiming he was the shooter and that the shooting was done in self-defense and could

consider the statement for impeachment purposes. More importantly, Petitioner was able to

challenge the prosecution’s witnesses and the state’s evidence through cross-examination. He also

had ample opportunity to present admissible evidence, including his own testimony, that he was not

the shooter and/or that the shooting was done in self-defense. In fact, the defense was able to

highlight Salwa Ali’s testimony that she spoke to the victim shortly before the shooting and he

thought that Petitioner was driving the other vehicle, as well as her testimony that the victim had a

history of confronting Petitioner and was often armed with a weapon. Petitioner thus had a

meaningful opportunity to present a complete defense at trial. See, e.g., Wynne v. Renico, 606 F.3d

867, 870-71 (6th Cir. 2010) (state trial court did not violate petitioner’s right to present a defense

at murder trial by excluding propensity evidence of third party guilt where defendant had

opportunity to present other, proper evidence in support of defense theory).

Petitioner cites Holmes, supra and Chambers, supra, in support of his constitutional claim.

However, nothing in those cases requires that a trial court allow the admission of untrustworthy

hearsay statements as evidence of third party guilt in order to satisfy the Constitution. See, e.g.,

United States v. Phillips, 198 F. App’x 558, 561 (7th Cir. 2011) (citing Holmes and Chambers). In

Holmes, the Supreme Court held that a defendant’s due process rights were violated by a state

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court’s application of an evidentiary rule which precluded the defendant from introducing evidence

of third-party guilt if the prosecution had introduced forensic evidence that, if believed, strongly

supported a guilty verdict. The Court found that the rule improperly focused on the strength of the

prosecution’s case instead of the probative value or the potential adverse effects of admitting the

defense’s third-party guilt evidence. Holmes, 547 U.S. at 321, 331. In Chambers, a murder

defendant called as a witness a man who had previously confessed to the murder. When the witness

repudiated his confession, the defendant was not allowed to examine him as an adverse witness

based upon a state rule which barred parties from impeaching their own witnesses. The defendant

was also not allowed to introduce evidence that the witness had made self-incriminating statements

to other people because state hearsay rules did not include an exception for statements against penal

interest. The Supreme Court held that the limitation on cross-examination combined with the

exclusion of the witness’s out-of-court statements resulted in a constitutional violation. Chambers,

410 U.S. at 294-97, 302. In this case, the state courts refused to admit El-Ozeir’s statements as

substantive evidence based upon Michigan’s hearsay rule and a determination that those statements

did not fall within the exception for statements against penal interest. The state courts did not run

afoul of Holmes or Chambers. See, e.g., Inman v. Warden, No. 11-12417, 2012 WL 413993, *2-3

(11th Cir. Feb. 10, 2012) (unpublished case denying habeas relief on similar claim). Petitioner has

failed to establish that the state courts’ evidentiary rulings were contrary to or an unreasonable

application of Supreme Court precedent or that they otherwise violated his constitutional rights.

Lastly, even if the state courts erred in refusing to allow El-Ozeir’s third statement to be

admitted as substantive evidence at trial, such error was harmless. For purposes of federal habeas

review, a constitutional error that implicates trial procedures is considered harmless if it did not have

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a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117-18 (2007)

(confirming that Brecht standard applies in “virtually all” habeas cases); Ruelas v. Wolfenbarger,

580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is “always the test” in this circuit). The

prosecution in this case presented significant evidence of Petitioner’s guilt at trial. In particular,

witnesses testified that Petitioner, not El-Ozeir, was feuding with the victim over a woman, three

eyewitnesses identified Petitioner as the shooter, all of the occupants of the victims' car denied

having or firing any weapons, the police did not find shell casings in the victims' vehicle nor bullet

holes in the perpetrators' vehicle, the police recovered gunshot residue from Petitioner's shirt which

was consistent with firing a gun, and a fellow inmate testified that Petitioner admitted shooting the

victim. Additionally, the record reveals that the trial court instructed the jury on the charge of aiding

and abetting. Thus, even if the jury believed that El-Ozeir was the shooter, they could still have

convicted Petitioner as an aider and abettor to the crime given that he drove the vehicle, that he

and/or El-Ozeir was armed with a gun, that he engaged the victims’ vehicle during the confrontation,

and that he fled the scene with El-Ozeir after the shooting. Given such circumstances, any error

arising from the state courts’ evidentiary ruling was harmless beyond a reasonable doubt. Habeas

relief is not warranted on this claim.

B. Limitation on Impeachment Evidence

Petitioner next asserts that he is entitled to habeas relief because the trial court violated his

rights to present a defense and confrontation by not allowing defense counsel to present evidence

about the circumstances surrounding El-Ozeir’s statements in order to impeach Detective Muscat

after Muscat commented on the credibility of El-Ozeir’s statements. Respondent contends that this

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claim lacks merit.

During trial, the trial court ruled that the prosecutor “opened the door” to use El-Ozeir’s outof-court statements for impeachment purposes after the prosecutor asked Detective Muscat the

following question:

Q: You have any evidence that suggests that someone else besides Mr. Khalil

Chahine did the shooting?

A: None, Sir.

Chahine, 2007 WL 601599 at *2. While being questioned about El-Ozeir’s statements, Detective

Muscat testified that he did not believe that El-Ozeir’s third statement was credible in order to

explain his answer that there was no evidence that someone other than Petitioner was the shooter.

Id. at *5. Defense counsel then sought to admit evidence of the circumstances surrounding ElOzier’s third statement. The trial court refused to allow such testimony, finding that it was

precluded by the Michigan Court of Appeals’ interlocutory order concerning the statements.

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right

to confront the witnesses against him. “The main and essential purpose of confrontation is to secure

for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315 (1973).

“Cross-examination is the principal means by which the believability of a witness and the truth of

his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive

and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the

witness's story to test the witness's perceptions and memory, but the cross-examiner has traditionally

been allowed to impeach, i.e., discredit the witness.” Id. at 314. The right of cross-examination,

however, is not absolute. “[T]rial judges retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on concerns about, among

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other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that

is repetitive or only marginally relevant.” Delaware v. VanArsdall, 475 U.S. 673, 679 (1986); see

also Norris v. Schotten, 146 F.3d 314, 329-30 (6th Cir. 1998). The Confrontation Clause

“guarantees an opportunity for cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.

15, 20 (1985).

The Michigan Court of Appeals considered this issue on direct appeal and denied relief. The

court stated:

Next, defendant argues that the trial court erred by precluding evidence regarding the

circumstances surrounding El-Ozeir's third statement after the court permitted

Detective Muscat to testify that he did not believe El-Ozeir's statements were

credible. Defendant argues that it is improper for one witness to comment on the

credibility of another witness. People v. Buckey, 424 Mich 1, 17; 378 NW2d 432

(1985). Defendant also argues he was denied his constitutional right to present a

defense and to confront through cross-examination witnesses that testify against him.

Defendant again asserts the ruling denied his constitutional right to due process

because El-Ozeir's statement bore assurances of trustworthiness and was critical to

the defense. Chambers v. Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d

297 (1973). We disagree.

Because El-Ozeir was not a witness, and his out-of-court statements were not

admitted to prove the truth of the matters asserted, the general rule prohibiting one

witness from commenting on the credibility of another witness is inapposite. That

rule is premised on the fact that the determination of the credibility of witnesses is

the function of the trier of fact. Buckey, supra at 17. Accordingly, such testimony is

not relevant. Id. Here, the officer's testimony that he did not find El-Ozeir's

statements credible was admitted only to explain his answer that there was no

evidence of someone other than defendant who was the shooter. Moreover, the trial

court limited the jury's consideration of the evidence to the credibility of Detective

Muscat. Thus, the credibility of the El-Ozeir's statements was not before the fact

finder. As the Buckey court observed, a proper limiting instruction by the trial court

will alleviate any potential prejudice even when improper testimony regarding the

credibility of another witness is received. Id. at 18.

Likewise, the trial court did not abuse its discretion denying defendant's request to

admit evidence of the circumstances surrounding El-Ozeir's third statement. Because

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the trial court did not admit El-Ozeir's statements for substantive purposes, attacking

and supporting his credibility was not relevant and was a collateral issue.FN2 Thus,

the trial court properly excluded the proposed evidence under both MRE 402

(“Evidence which is not relevant is not admissible.”), or MRE 403 (“Although

relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”). “[G]enerally a party may not introduce extrinsic evidence

to contradict a witness regarding collateral, irrelevant, or immaterial matters.” People

v. Lester, 232 Mich App 262, 275; 591 NW2d 267 (1998), citing People v. Vasher,

449 Mich 494, 504; 537 NW2d 168 (1995).

FN2 Defendant does not argue that MRE 806 might apply. That rule

provides in part: “When a hearsay statement ... has been admitted in

evidence, the credibility of the declarant may be attacked, and if

attacked may be supported, by any evidence which would be

admissible for those purposes if declarant had testified as a witness.”

MRE 801(c) defines “hearsay” as “a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” So, MRE 806

must be limited to situations where “hearsay” has been admitted as

substantive evidence of the truth of the matter asserted.

For the same reasons, the trial court did not deny defendant his constitutional right

to present witnesses in his defense or confront witnesses against him. “Neither the

Sixth Amendment's Confrontation Clause nor due process confers on a defendant an

unlimited right to cross-examine on any subject.” People v. Canter, 197 Mich App

550, 564; 496 NW2d 336 (1992). The right of confrontation “does not include a right

to cross-examine on irrelevant issues and may bow to accommodate other legitimate

interests of the trial process or of society.” People v. Adamski, 198 Mich App 133,

138; 497 NW2d 546 (1993). The Confrontation Clause, however, does guarantee an

accused a reasonable opportunity to test the truth of a witness' testimony. Id. Here,

the trial court afforded defendant that opportunity.

Chahine, 2007 WL 601599 at *5.

The Michigan Court of Appeals’ decision is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. The circumstances surrounding ElOzeir’s statements were not relevant given that those statements were only deemed admissible for

impeachment purposes. Detective Muscat’s credibility, not El-Ozeir’s credibility, was at issue. The

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trial court properly limited the inquiry into such matters for the purpose of clarifying Detective

Muscat’s statement and to allow for impeachment of his testimony. The court did not allow

questioning about the circumstances surrounding El-Ozeir’s statements because it would have been

a collateral, time-consuming matter. The trial court’s ruling was reasonable and within the bounds

of state evidentiary rules. More importantly, for purposes of habeas review, defense counsel had

the opportunity to impeach Detective Muscat with El-Ozeir’s statements and to otherwise question

him about his investigation of the shooting. Defense counsel was not precluded from presenting

relevant and admissible evidence in support of Petitioner’s defense that he was not the shooter

and/or that the shooting was justified. The trial court adequately protected Petitioner’s rights of

confrontation and to present a defense at trial. Petitioner has failed to establish a constitutional

violation.

Moreover, even if the trial court erred in limiting the impeachment testimony, Petitioner is

not entitled to relief because any such error was harmless. As explained supra, for purposes of

federal habeas review, a constitutional error that implicates trial procedures is harmless if it did not

have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507

U.S. at 637. Confrontation errors, like other trial errors, are subject to harmless error analysis. See

Delaware v. VanArsdall, 475 U.S. at 684. In this case, the trial court allowed defense counsel to

impeach Detective Muscat with El-Ozeir’s statements themselves and to inquire about the police

investigation of the crime. The jury thus had sufficient basis to evaluate Detective Muscat’s

credibility. Additionally, as discussed supra, the prosecution presented significant evidence of

Petitioner’s guilt at trial, including the ongoing dispute between Petitioner and the victim, the

eyewitness testimony identifying Petitioner as the shooter, the gunshot residue on Petitioner’s

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clothing, the testimony and crime scene evidence indicating that gunshots were fired from

Petitioner’s vehicle and not the victim’s vehicle, and Petitioner’s own admission to a fellow inmate

that he committed the shooting. Given such circumstances, any error in refusing to allow defense

counsel to inquire into the circumstances surrounding El-Ozeir’s statement was harmless under

Brecht. Habeas relief is not warranted on this claim.

C. Non-Disclosure of Evidence Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court erred in

denying his discovery request for audiotapes which were given to the prosecutor during the course

of trial and may have contained information helpful to the defense. Respondent contends that this

claim lacks merit.

During trial, federal authorities seized audiotapes from Petitioner’s father’s restaurant

business pursuant to a search warrant issued in an unrelated investigation of Petitioner’s father.

Several of those tapes were given to the Wayne County Prosecutor’s Office because they contained

information relevant to Petitioner’s trial - namely conversations between Petitioner’s father and

potential defense witnesses. Defense counsel asked to review the tapes or have the court conduct

an in camera review. The trial court denied both requests, but ordered the prosecutor to disclose any

exculpatory information found on the tapes, which he agreed to do. The court also precluded the

prosecutor from using the tapes to impeach defense witnesses at trial. The Michigan Court of

Appeals described the tapes as follows:

The only suggestion in the record that the tapes contained material exculpatory to

defendant is defense counsel's equivocal representation of double or triple hearsay

attributable to a federal prosecutor that the tapes either contained evidence

exculpatory to defendant or evidence of an effort to obstruct justice. One of defense

counsel's intervening sources for this information was a news reporter. When the trial

court asked defense counsel if he had even spoken directly to the federal prosecutor,

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counsel admitted he had not. Further, defense counsel acknowledged that a

newspaper article regarding the tapes seizure did not support counsel's claim the

tapes contained exculpatory material.

Rather, than containing exculpatory material, the record indicates that defendant's

father prepared the tapes in anticipation of his son's trial. Further, up until the time

that the federal authorities seized the tapes, the same attorneys represented defendant

and his father. There is nothing to indicate any prosecution witnesses were tape

recorded. Indeed it appears that only potential defense witnesses from whom

defendant's father sought to elicit or solicit testimony provided tape recorded

statements. The prosecutor noted the tapes were the focus of an investigation into an

effort to obstruct justice, and acknowledged the tapes might be usable to impeach the

testimony of persons recorded if they were called to testify at the trial.

Chahine, 2007 WL 601599 at *7.

It is well-settled that there is no general constitutional right to discovery in a criminal case.

See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Presser, 844 F.2d 1275, 1281

(6th Cir. 1988). The United States Supreme Court has held that the prosecutor’s failure to disclose

evidence favorable to the defense constitutes a denial of due process “where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady

v. Maryland, 373 U.S. 83, 87 (1963). To find a Brady violation, not only must the evidence be

suppressed, but the suppressed evidence must be material and favorable to the accused. Elmore v.

Foltz, 768 F.2d 773, 777 (6th Cir. 1985). Favorable evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley,

514 U.S. 419, 432-36 (1995). Material evidence is that which is “so clearly supportive of a claim

of innocence that it gives the prosecution notice of a duty to produce.” United States v. Clark, 988

F.2d 1459, 1467 (6th Cir. 1993). The duty to disclose favorable evidence includes the duty to

disclose favorable impeachment evidence. Bagley, supra; Giglio v. United States, 405 U.S. 150,

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154-55 (1972).

The Brady rule only applies to “the discovery, after trial, of information which had been

known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103

(1976); see also Mullins v. United States, 22 f.3d 1365, 1370-71 (6th Cir. 1994). Moreover, a Brady

violation does not occur if previously undisclosed evidence is disclosed during trial unless the

defendant is prejudiced by its non-disclosure. See United States v. Word, 806 F.2d 658, 665 (6th Cir.

1986). Thus, in order to establish a Brady violation, a petitioner must show that: (1) the evidence

was suppressed by the prosecution in that it was not known to the petitioner nor available from

another source; (2) the evidence was favorable or exculpatory; and (3) the evidence was material

to the question of the petitioner’s guilt. See Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); see

also Strickler v. Greene, 527 U.S. 263, 281-282 (1999). The petitioner bears the burden of

establishing a Brady violation. Carter, 218 F.3d at 601.

The Michigan Court of Appeals denied relief on this claim, stating in relevant part:

Here, the audiotapes at best contained material that the prosecutor could use to

impeach defense witnesses. Such evidence is not favorable to the accused under

Brady. In Brady, the Supreme Court held that, “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Brady, supra at 87. In Bagley, supra at 676, the

Court held that the Brady rule extended to a prosecutor's failure to disclose evidence

that the defense might have used to impeach the government's witnesses.

“Impeachment evidence ... as well as exculpatory evidence, falls within the Brady

rule.” Bagley, supra at 676. In this case, there has been no showing the tapes would

be useful to impeach the prosecution's witnesses; therefore, defendant has not shown

the tapes were “favorable to the accused” within the meaning of the Brady rule.

But, even assuming the audiotapes contained evidence favorable to defendant,

defendant had access to the tapes before their seizure through his father, and even

after the tapes were seized by federal authorities, defendant through the exercise of

reasonable diligence could have produced the substance of the audiotapes' contents

through testimony by the persons whose conversations had been recorded.

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The Michigan Court of Appeals also ruled that Petitioner was not entitled to relief under

state law. Chahine, 2007 WL 601599 at *6-7. Petitioner does not appear to challenge that

ruling. In any event, federal habeas relief is unavailable for a perceived violation of state law. 

See Estelle, supra.

23

Moreover, it cannot be said that the prosecutor suppressed evidence, whether

favorable or not to defendant. The audiotapes themselves would be inadmissible

hearsay. Defendant could easily have produced the substance of whatever relevant

matters were discussed in the recorded conversations by calling as witnesses the

persons whose conversations were recorded. Additionally, under the trial court's

ruling, defendant would have been able to present these potential witnesses without

fear that they would be impeached with the content of audiotapes.

Finally, because the prosecutor's possession and retention of the audiotapes did not

preclude defendant from presenting as admissible testimony the substance of

whatever they contained, defendant cannot establish “that had the evidence been

disclosed to the defense, a reasonable probability exists that the outcome of the

proceedings would have been different.” Cox, supra at 448; Lester, supra at 281.

In conclusion, no error warranting reversal occurred with respect to the audiotapes

that came into the prosecutor's possession mid-trial.

Chahine, 2007 WL 601599 at *8-9.1

The state courts’ denial of relief on this claim is neither contrary to Supreme Court precedent

nor an unreasonable application of federal law or the facts. Petitioner has not met his burden of

establishing a Brady violation. First, Petitioner has failed to show that the evidence was

“suppressed” given that the tapes contained recorded conversations between Petitioner’s father and

potential defense witnesses. While the tapes themselves were within the prosecutor’s control after

being seized, the substance of the conversations was available to Petitioner through his father and

the recorded parties. Second, Petitioner has failed to show that the tapes contained favorable or

exculpatory information. The tapes themselves were inadmissible hearsay (barring an exception),

and it appears from the record that the tapes, at best, contained information which could have been

used to impeach defense witnesses. Such information was neither exculpatory nor favorable to the

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defense. Additionally, the trial court required the prosecutor to disclose any exculpatory evidence,

which he agreed to do, and barred the prosecutor from using the tapes to impeach defense witnesses

at trial. Given such circumstances, Petitioner has failed to establish a Brady violation. He has also

failed to show that he was denied the right to present a defense. Petitioner was aware of the tapes

at the time of trial and knew that they contained conversations between his father and potential

defense witnesses. He could have simply asked his father and/or those witnesses to testify at trial.

He has not shown that having access to the tapes would have benefitted his defense. Petitioner has

thus failed to establish that the prosecutor committed a Brady violation or otherwise violated his

constitutional rights. Habeas relief is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on the claims contained in his petition. Accordingly, the Court DENIES WITH

PREJUDICE the petition for a writ of habeas corpus.

Before Petitioner may appeal the Court’s dispositive decision, a certificate of appealability

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). This standard is met if the petitioner demonstrates that reasonable jurists

would find the court’s assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S.

473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could

conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 327 (2003). Having considered the matter, the Court concludes that

Petitioner has not made a substantial showing of the denial of a constitutional right as to his habeas

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claims. Accordingly, the Court DENIES a certificate of appealability.

IT IS SO ORDERED.

s/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: June 11, 2012

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on June 11, 2012.

s/Marie E. Verlinde 

Case Manager

(810) 984-3290

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