*1 if all over jurisdiction claims supplemental been original jurisdiction have it has
dismissed). remaining Accordingly, are remanded Pittman against
claims enter with instructions to
the district remanding the case the Circuit order
an Oakland, County of State for the
Michigan.
IV. reasons, we AFFIRM foregoing
For the Daim- granting
the district court’s order summary judg-
lerChrysler’s motion for DaimlerChrys- claims
ment all claims remaining
ler REMAND Pittman to
against James Stanford to remand
district court instructions to the Court for
the claims Circuit Oakland,
County Michigan. JORDAN, Petitioner-
Vincent
Appellant, HURLEY, Respondent-
Patrick
Appellee
No. 03-3631. of Appeals,
United States Court
Sixth Circuit. Oct.
Submitted: Feb.
Decided Filed: *2 Criss,
ON BRIEF: M. Scott Office of General, Attorney Corrections Litiga- Columbus, Section, Ohio, for Appellee. Marion, Ohio, Vincent pro se. CLAY, KEITH, Before: BRIGHT, Judges.* Circuit BRIGHT, J., opinion delivered court, CLAY, J., joined. in which KEITH, J., 365-69), (pp. a separate delivered dissenting opinion.
OPINION BRIGHT, Judge. Circuit Vincent appellant, was convicted after a second trial in the state courts of Ohio. He seeks relief from his conviction and eight-year sentence un- pro petition der a se for a writ of habeas corpus pursuant § U.S.C. filed in the United States District Court for the Southern District of Ohio.1 The district court denied Jordan brings relief and appeal under a of Appealability Certificate relating to his claims state trial court deprived him of his Sixth Amend- confrontation right ment and Four- * Smith, Myron Bright, George The Honorable H. 1. The Circuit Honorable C. Judge Appeals Judge of the United States Court of States District for Southern District Circuit, Ohio, Eighth sitting by designation. for the Eastern Division. process petition corpus. for a writ of habeas right due se
teenth Amendment and that his convic- The district court denied relief dis- of the trial conduct evidence. supported petition. missed Jordan’s tion was not obtained Specifically, Appealability relating Jordan contends that the a Certificate *3 prose- permitting erred in jpdge alleged process due confrontation during di- leading questions cutor to ask regarding evidentiary clause violations alleged rect examination of the matters suf- cross-ex- additionally restricting erred in support ficient to his conviction. also con- amination of victim. Jordan fact have
tends no rational trier of could II. DISCUSSION reject raped victim. found that he We these contentions and affirm. proceed an of a habeas ing, this court reviews the district court’s
I. BACKGROUND legal de and its conclusions novo factual initially charged findings Taylor The of Ohio Jor- v. for clear error. With rape. row, (6th Cir.2002). The first 846, dan- with two counts of 288 F.3d 850 in a trial ended mistrial when The Antiterrorism and Effective Death could reach a verdict. The State Act, 2254, Penalty § placed 28 U.S.C. “a brought in counts a second indictment two power new constraint on federal rape in- charging forcible grant prisoner’s habeas court to a state volving vaginal separately intercourse and a writ habeas application corpus for trial, called the prosecutor fellatio. At respect adjudicated to claims on the testify. syndrome, has who Down Tay- merits state court.” v. Williams The trial court voir dire and conducted lor, 146 U.S. S.Ct. testify. competent found the victim (2000). L.Ed.2d Under section objection, used prosecutor, over 2254(d)(1), may only a writ issue if “the examining victim. leading questions adjudication state-court resulted in a deci- Further, the trial court limited cross-ex- (1) ... contrary clearly sion ‘was by barring amination counsel law, by established Federal as determined attempting impeach the victim States,’ Supreme the United in the first trial. The (2) an application ‘involved unreasonable guilty vaginal found law, ... clearly Federal as established rape charge.2 intercourse The trial court by Supreme determined Court of the years eight imprison- sentenced Jordan to ” (quoting States.’ ment and found Jordan to be a sexual 2254(d)(1)). § predator. argues that the state trial court by counsel, represented appeal- right violated his confrontation allow- Appeals, ed to the Ohio Court prosecutor conviction, leading questions to ask affirmed the but reversed and examining the victim. This claim re- predator the trial court’s sexual remanded evidence, lates to state rule of represented determination. and feder- counsel, evidentiary al habeas sought Su- review state court review the Ohio extremely preme rulings That court leave to limited. v. Court. denied Waters Kassulke, (6th Cir.1990). appeal. Thereafter, pro filed this 916 F.2d charge. The trial dismissed fellatio Goodlow, syndrome Down also The victim has United States difficulty (8th Cir.1997) responding to and therefore had (recognizing 611(c) prosecutor’s questions. Under Ohio that preclude Federal Rule does not law, should not “[l]eading questions be frequent leading questions during use of of a the direct examination witness used mentally the direct re- necessary to except may develop be tarded adult who was the victim of sexual 611(c) (2004). testimony.” Ohio R. Evid. abuse). rule, interpreting Ohio courts trial court did not violate prosecutors use permitted ques Jordan’s right by allowing of confrontation “on tions examination where the .direct prosecutor ask leading questions *4 years,” Timper is of tender State v.
victim victim, examining leading because io, 156, 594, 528 App.3d 38 Ohio N.E.2d questions permissible were under these (1987), “appeared 596 or when the witness See, e.g., Shoupe, circumstances. F.2d 548 nervous and ‘a slow1and to be little ‘strain (“the at 641 leading questions use of dur answers,” Smith, ing’ with his 80 ing the direct examination of a witness 89, 668, (1997). Ohio St.3d 684 N.E.2d 689 falls within the sound discretion of trial child, a the victim is not she func While court”). very such, at a As tions basic level. lead ing questions permitted are under such argues Jordan next trial the state See, e.g., circumstances. United States v. court violated right his confrontation (6th Cir.1977) 636, 548 F.2d Shoupe, limiting the cross-examination of the vic- (“the leading use of questions tim. The victim testified in the second falls of a witness within push away. trial that she tried court”). the trial the sound discretion of victim, however, The did not make this similarly courts found
Federal have claim in her at trial. the first leading questions on direct examination wanted to in- attorney raise this permissible questioning are certain wit consistency by impeaching the victim on nesses, including a child sexual abuse vic cross-examination, but the trial court re- tim, foreign testifying through witness stricted the cross-examination and prohib- translator, soft-spoken an unusually questioning. ited this line of The state witness, frightened mentally and a retard appellate court concluded that the state ed adult who was victim of sexual limiting court erred in the cross-ex- See, e.g., Ajmal, States v. abuse. amination, but determined that the error (2d Cir.1995) 12, 67 F.3d 15-16 (holding was harmless. The federal district permits leading that the Sixth Amendment decided that the error did not have a sub- questions direct examination of a for injurious stantial and effect on the funda- through eign testifying witness a transla mental fairness of Jordan’s trial. Castro-Romero, tor); United States v. (9th Cir.1992) Confrontation Clause violations (holding subject are to harmless error review. permits
that the Sixth
Amendment
(6th
Jones,
274 F.3d
Bulls v.
questions
direct examination of a child
Cir.2001).
reviewing state court de
victim);
When
sexual abuse
United States v.
Bear,
(8th
cisions for
error in a collateral
harmless
Grey
883 F.2d
Cir.
1989)
applies
this court
er
(recognizing
Sixth
harmless
that the
Amend
permits
ror standard
Brecht v.
leading questions
ment
on direct
set out
Abraham-
son,
petitioner
examination in the
of an
a habeas
unusually
case
which holds
witness);
soft-spoken
frightened
trial error
see must establish the
had a “sub-
Further-
people
in were not a lot
around.
effect or influence
injurious
stantial
more,
507 U.S.
the victim testified that Jordan
jury’s verdict.”
initiative,
parked
mony pushed that she is did want to have sex or to testified she the threat of of force or only evidence and that she “scared.” be touched at at 366. The evidence See Dissent force. encounter, Finally, at the of the sexual end trial, however, overwhelming that Jor- told her the Victim testified that Jordan raping there- dan used force and “I sexual encounter secret limit cross examina- ruling fore one it.” examin- won’t tell no about After *5 prejudicial. cannot deemed tion be vulnerability, ing the victim’s the size and is clear that the circum Ohio law Jordan, the of of likelihood demeanor are alleged rape proper stances victim, vic- physical injury to the and the jury the in considerations for fear, as well the testimo- tim’s victim’s See State v. there was force. ny, court’s de- agree we with the district Carter, App.3d 504 N.E.2d Ohio limiting termination the error the (1985). Specifically, with re cross-examination was harmless. evidence, Ohio spect the admission of peculiar law consideration of vul endorses that he intercourse Jordan admitted had victim, the the size and de nerabilities of victim, with the but rested his defense on defendant, likelihood of meanor the the his victim contention that the consented to and the vic physical injury to significant the act. There evidence that is Fowler, Id.; Ohio tim’s fear. credibility and undermines Jordan’s his (1985). 390, 395 App.3d 500 N.E.2d theory of the On and case. cross Here, it was mental disabili- adduced victim has the a when police functions at asked Jordan about ty syndrome, of Down and first having evidence also incident Jordan denied sex very basic level. The the victim. con- strong patent is addition this showed that Jordan semi-professional theory, football tradiction with his trial player. More- over, Jordan admitted on cross examina- could have discounted Jordan’s version of cab the events as untruthful because of his the exclusive business theft, theft, driving mentally physically past attempted is or convictions for company receipt handicapped people attempted property and that he noticed of stolen Further, well, possession the victim or talk of criminal tools. Jor- did walk there dan victim him paid thus was clear evidence asserted that the $50 sex, conclude that knew the to have but admitted on cross victim Jordan addition, disability. police examination that he lied to the about had mental money, telling taken the alleged parking having occurred in a truck instead hours, he evening police lot and accord- had told victim fifty-dollar ap- ing to the victim “it and there sex was for free. The bill was dark” materialized in the investi- statement constituted a mere parently never harmless er- alleged rape. gation respectfully after the ror. therefore dissent. credibility is essential on the I. compelled issue whether by have sex force. force Petitioner, Vincent was a taxi- compelling denied the victim Byers, cab driver who transported a wom- intercourse, it maintaining instead syndrome, an with Down place sig- was consensual sex. Because there is employment. It undisputed that during nificant evidence that undermines Jordan’s the second occasion that Jordan drove her credibility, theory which is essential to his work, over, pulled placed on a compelled issue of whether he condom, Byers he and had sexual in- victim to have sex force or threat of tercourse the back seat of the vehicle. the district court’s determination encounter, As result this Jordan was that the error harmless has substan- charged under Ohio state law with two support in tial the record. rape against Byers. counts of Jordan has consistently no ra Additionally, argues maintained con- him tional trier of fact could have found sented to the sexual encounter. guilty of forcible intercourse with the vic Jordan’s first trial began September tim. This court reviews the but ended a mistrial because light most favorable to the could not reach a unanimous deci- every and must draw reasonable inference trial, During sion. Byers’s testimonial favor of prosecution. Jackson v. recitation of the did incident not include *6 307, 319, Virginia, 443 U.S. 99 S.Ct. any statement that indicating pushed (1979). Here, viewing L.Ed.2d 560 away during from her the sexual most light evidence favorable encounter. Several after months the first prosecution, amply the evidence sustains trial, prosecution tried Jordan again The victim Jordan’s conviction. charges.2 original based on the The sec- each of necessary the elements to estab January 24, began ond trial on 2000. The that raped lish her. only support evidence introduced find- necessary of element force or
III. CONCLUSION of the threat force was testimonial evi- Accordingly, affirm we the district Byers. dence from there While were oth- denial corpus. court’s of the writ of habeas er that statements her could lead a reasonable that believe force KEITH, Judge, dissenting. Circuit used, only or the threat of force was one I agree leading Byers pushed While the use of statement —that questions direct examination was from her —was consistent and uncon- error, I disagree majority’s Despite importance with the con- tested. the relative of issue, clusion the district court’s refusal to this the trial court refused to allow attorney impeach allow defense counsel cross-examine and Jordan’s defense impeach alleged Byers1 Byers regarding prior C. inconsistent (“Byers”), regarding prior inconsistent statement inasmuch as she failed to men- trial, purposely prosecution brought 1. Her first name has the first been withheld. After against a second indictment but it speedy grounds. was dismissed on trial below, I explained am unable any force the first reasons of the use join trial, opinion. of close the second At the trial. hours, for six-and-a-half
jury deliberated II. ultimately found Jor- days, two over vaginal inter- guilty engaging dan statute, rape as Under Ohio is defined force Byers through or course with “sexual conduct another when with sentenced to Jordan was threat force. compels per- the other purposely offender eight years imprisonment.3 or of force.” son to submit force 2907.02(A)(2). § An essential Ohio R.C. an Jordan filed proof, of the crime of element court, con- argued doubt, beyond defen- a reasonable that the process rights were vi- frontation and due “force threat of force.” dant used or [the] particular, Jordan claimed olated. element, jury was Regarding error committed reversible instructed follows: to ask the allowing violence, any compulsion, means Force alleged questions by any physically or constraint exerted by limiting scope upon person or means of his accuser. Jor- his cross-examination the de- thing. pre- also claimed dan threatened the immediate use fendant guilt find insufficient to be- sented was you may ... consider the size and appellate yond a reasonable doubt. defendant, the likeli- demeanor the limitation court determined injury physical hood of from the defen- was, fact, error, but cross-examination conduct, any peculiar dant’s vulner- af- it harmless. court therefore ability of the victim. conviction. After ex- firmed Jordan’s Russell, J.A. at v. 813-14. See State remedies, Jordan filed a hausting his state (Ohio App.1991) (citing WL *5 corpus for a writ habeas petition Garter, N.E.2d App.3d Ohio District Court for the the United States (1985)). Ohio, restating these District Southern *7 Byers’s testimony only was the evidence Like the ap- claims. state constitutional prove to used or offered that Jordan court, the district court found that pellate threatened the immediate use of force—a erred in the prohibiting trial court the necessary Her tes- element of the crime.4 Byers her regarding cross-examination inconsistent, timonial often evidence was statement, but also prior inconsistent except regarding the issue of whether Thus, to harmless. the error be found Byers away pushed Jordan from her while petition. his the district court denied inserting vagina. he into penis was his her agreed has appeal, majority separate the On On occasions four examination, the prosecution questioned of the district court. For the the decision (empha- Majority be a of force.” at The court also determined Jordan to predator, but that decision was re- added). Rather, sexual simply stating sis that I am by state court not versed the on and is Byers’s testimony, including entire but not this court. at issue before regarding pushing to her limited statement by only the the evidence offered my majority statement 4. The mischaracterizes force; prosecution prove the element of claiming noting that "the here I am does not either used Jordan concede pushed victim's she or the only of force or the threatened use of force. is the
367
allegedly pushing
proceeding
about her
habeas
is in
Byers
grave doubt
her;
three of those four times
away from
trial error
whether a
of federal
had
law
asked a
The
Byers
question.
‘substantial
effect
influ
asked,
time,
“You
prosecution
first
the
verdict,’
ence in
jury’s
the
this, right?”
your
up
held
hands
like
is not
that error
v.
harmless.” O’Neal
(i.e.,
“I
held
responded,
did it
[
McAninch,
432, 436,
513 U.S.
115 S.Ct.
push
him
up)
trying
while was
]
hands
(1995)
947
130 L.Ed.2d
(citing Brecht
time,
away.” J.A. at 537. The second
Abrahamson,
619, 627,
113
U.S.
asked,
you
mean
prosecution
you
“What do
(1993)).
S.Ct.
123 L.Ed.2d
responded,
penis]?”
[his
didn’t like
and she
“grave
“in
defined
doubt” as when
push
him
at 544.
away.”
“I tried
Id.
mind,
judge’s
evenly
the matter is so
stated,
prosecution
The third time the
balanced that he feels
himself
virtual
“you
push
one time that T
said
tried
equipoise as
harmlessness of
answered,
‘Yeah,
away,”’
him
and she
O’Neal,
error.”
The standard of “harmless error” has that disagree error. I with the conclusion Supreme led to some confusion and the overwhelming, has other evidence was meaning past clarified its years. I that such an is a Specifically, disagree inquiry several the Court indi- also judge proper cated that a federal a of the application “[w]hen law. errone- as of force primarily fact that was hurt a result exerted Jordan
Despite pain Byers simply Jordan or whether her was impeaching ously prohibited surgery. due to her recent discomfort resolution of issue of Byers that she though Even testified was jury; easy for the decision not an case was her, hurt going afraid that Jordan to hours, was for six-and-a-half they deliberated that it at she also indicated id. was light of the two-day period. over clothes off' “tough getting not nor [her] prove the element other evidence or fight did she scream when Jordan was a rea- beyond threat of force force or the clothes,6 removing id. at allegedly her 627. doubt, jury have certain- could sonable Moreover, demonstrate to be the ly appeared what upon relied in having force sexual intercourse used and consistent statement uncontested Byers, prosecution attempted pushing regarding her Byers Jordan had torn her underwear. prove that of force as requisite to find the element Byers prosecu- Yet when was asked provided jury in the instructions. if her had hole them underwear suggests jury majority on, simply put when she them she re- found the could have element this, they “I hate sponded, say but was use force based on of the immediate at dirty.” Byers Id. also indicated vulnerability, Jordan’s size and de- Byers’s might that she have told Jordan her meanor, injury, physical the likelihood of at underwear was old and torn. at 364. To Byers’s Majority fear.5 give inconsistent These statements rise to factors, in particular how these show a reasonable doubt as to whether the sexu- two, to find the last could led the necessary al act occurred with the “force force, majority the threat of element of inconsistency or threat force.” The testimony. Byers’s cites to all the provides this other evidence more why I agree reason cannot that the trial that the elicited tes- agree in refusing permit court’s error Byers may a reason- timony from lead accuser on defendant confront his her threatened jury to believe able prior inconsistent had no statement sub- force; however, use of immediate the jury. stantial effect on testimony, pushing other than her relevant away, highly People syndrome, contested and such Down as among Byers, Even if the dis- are those most often inconsistent. need of testimony for lack of protection seeking our courts. counted Jordan’s however, majority Byers citizens, credibility, suggests, protect as the these courts can- occa- rights guaran- on numerous dismiss the contradicted fundamental herself example, everyone For teed to under the sions. Constitution. attempt- when Jordan was This includes defendant’s Sixth she was scared Amend- “right to intercourse with her because ment confront witnesses to have Kone, her, J.A. at but admitted that him.” he hurt United States v. (6th Cir.2002). surgery on got reviewing hurt “because After [she] novo, testimony leaves de it id. at 537. This the record is clear hip,” rights she was doubt to whether constitutional of the defendant reasonable *9 majority correctly given Although 5. states that ic instruction was as it relates fear. vic- allows to consider Ohio law the de- when tim's fear 6. Jordan testified that had removed her specif- the use of no threatened fendant Id. at 701. clothing. own Indeed, compromised. this case were I am grave regarding
left with doubt the sub-
stantial and effect this error jury. I good
had on the Because cannot in
conscience conclude that the error in this harmless, respectfully
case was dissent. America,
UNITED STATES of
Plaintiff-Appellee, OLIVER,
David Lee Defendant-
Appellant.
No. 03-2126. Appeals, States Court of
Sixth Circuit.
Argued: Nov.
Decided and Filed: Feb.