Passino v. Tessmer

61 F. App'x 124
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 25, 2003
DocketNo. 01-1316
StatusPublished
Cited by2 cases

This text of 61 F. App'x 124 (Passino v. Tessmer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Passino v. Tessmer, 61 F. App'x 124 (6th Cir. 2003).

Opinion

PER CURIAM.

The petitioner, Duane Passino, appeals from the denial of his request for issuance of a writ of habeas corpus. Before this court, he asserts that the state trial court committed reversible error in allowing the prosecutor to ask a government witness at trial whether the witness understood he could be required, as a condition of a plea agreement, to submit to a polygraph examination. According to Passino, such questioning before a jury amounted to improper bolstering of the credibility of a material witness. Because we agree that the state court’s determination that any error in this regard was harmless is itself an objectively reasonable application of Supreme Court law, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Passino was convicted in Michigan state court of three violations of that state’s drug laws and sentenced to an effective prison term of 20-40 years. During the state court trial, numerous witnesses testified on behalf of the prosecution regarding their personal drug dealings with Passino [125]*125or concerning their knowledge of such illicit activity involving the petitioner. Given the fact that the credibility of the testifying witnesses would thus be crucial to the efforts of the state to obtain criminal convictions in this matter, the prosecutor questioned one witness on redirect examination as follows:

Q Mr. Couture, you have no prior criminal record—felony record?
A No.
Q And you agreed to testify truthfully, not only under oath at the grand jury, but other proceedings, is that correct?
A Yes.
Q And you were given to understand that at any time you could be required to take a polygraph for part of any testimony concerned?
A Yes.

At the close of the questioning, defense counsel interposed an objection, claiming that the line of inquiry “was a deliberate attempt to inject into the record reference to polygraphs, to bolster testimony which may be questionable in the eyes of the jury.” The trial judge denied the motion for mistrial, however, and the jury concluded that the government had established its case against Passino beyond a reasonable doubt.

State court review of the convictions also failed to provide Passino with the relief he sought. The Michigan Court of Appeals did conclude that the trial court decision to admit into evidence the testimony concerning the polygraph examination was error. That appellate court further determined, however, that any such error was harmless beyond a reasonable doubt. In doing so, the court stated:

We first note that the prosecutor never argued, much less argued repeatedly, that Couture had testified truthfully because of the plea agreement. Thus, although the prosecutor initially erred, he did not prejudice defendant by vouching for Couture’s credibility.... Moreover, the fleeting reference to the requirement of a polygraph exam in the plea agreement did not imply that the prosecution possessed special knowledge, unknown to the jury, that the witness was testifying truthfully. Nevertheless, we caution prosecutors not to use such plea agreements as a back door method of injecting evidence that a witness has agreed to submit to a polygraph examination. A prosecutor’s attempt to use the threat of a polygraph examination as a means of bolstering a witness’ testimony, or vouching for his or her credibility, is error.

The Michigan Supreme Court declined to review the matter further, eventually leading the petitioner to seek habeas corpus relief.

Both a magistrate judge and the federal district court found no merit to the issues raised by Passino on collateral review and denied the petition in its entirety. Although the district court refused to grant the petitioner a certificate of appealability on any of the alleged grounds for relief, we granted Passino the right to address on appeal the question whether the petitioner was “denied a fair trial when the prosecutor asked witness Michael Couture whether he understood that he could be required to submit to a polygraph examination.” Only that issue is therefore now before us for resolution.

DISCUSSION

Passino filed his petition for issuance of the writ of habeas corpus on June 19,1998, well after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Conse[126]*126quently, the provisions of that act govern the resolution of this controversy. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Greer v. Mitchell, 264 F.3d 663, 671 (6th Cir. 2001), cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). Pursuant to that legislation, a federal court may not grant the writ unless the state court adjudication on the merits either:

(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

As explained by the United States Supreme Court:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In deciding whether a state court ruling involved an “unreasonable application” of federal law, a habeas court does not focus merely upon whether the state court decision was erroneous or incorrect; rather, a federal court may issue a writ of habeas corpus only if the state court’s application of clearly-established federal law was objectively unreasonable. See id. at 409-11. “This court reviews a district court’s legal conclusions de novo and its factual findings for clear error.” Greer, 264 F.3d at 671 (citing Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999)).

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Bluebook (online)
61 F. App'x 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/passino-v-tessmer-ca6-2003.