                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0161n.06
                            Filed: March 24, 2008

                                            No. 06-1958

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

TERRY KATT,                                       )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
BLAINE C. LAFLER, Warden,                         )    EASTERN DISTRICT OF MICHIGAN
                                                  )
       Respondent-Appellee.                       )



       Before: MERRITT, GILMAN, and COOK, Circuit Judges.


       COOK, Circuit Judge. Terry Katt, who received three life sentences in Michigan for criminal

sexual conduct, appeals the dismissal of his petition for habeas corpus on the sole issue certified by

the district court: did the state court’s admission of a social worker’s testimony recounting her

interview with Katt’s seven-year-old victim violate clearly established federal law? Katt contends

that it did in two ways: 1) his conviction based on residual hearsay violated his due process right to

a fair trial; and 2) the hearsay testimony violated his Confrontation Clause rights. Finding that Katt

procedurally defaulted his Due Process Clause claim and that he cannot show the Michigan courts

unreasonably applied clearly established Confrontation Clause law, we affirm.


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No. 06-1958
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       Katt shared a house with his landlord, the landlord’s fiancée, the fiancée’s five-year-old

daughter, A.D., and seven-year-old son, D.D, and two other men.


        Concerns about Katt’s sexual abuse of the two children arose after Angela Bowman, a

Children’s Protective Services investigator, visited D.D. at school to investigate an anonymous

report that his mother was physically abusing D.D. and his sister. Although D.D. did not

corroborate any abuse by his mother, he spontaneously revealed during the interview that “Uncle

Terry was doing nasty things to him” and his sister. After further questions revealed D.D.’s

advanced sexual knowledge and use of adult terminology, Bowman contacted the police.


        The police arrested Katt and charged him with four counts of first-degree criminal sexual

conduct. At his trial both children testified via two-way closed-circuit camera, a procedure to which

Katt stipulated. During the testimony, they demonstrated Katt’s sexual abuse using dolls.

Supplementing the children’s testimony, Bowman gave a more specific and fresh account of the

school interview with D.D.


        Katt countered that his feud with the children’s mother prompted her to coach her children

to fabricate the story, but the jury evidently disbelieved him, returning guilty verdicts on all but one

of the counts, which yielded three consecutive life sentences. People v. Katt, 639 N.W.2d 815, 816

(Mich. Ct. App. 2001).




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           During Katt’s Michigan appeals, the trial court’s admission of Bowman’s hearsay testimony

sparked a prolonged legal battle over Michigan Rule of Evidence 803(24), the so-called “residual,”

or “catchall,” hearsay exception. Bowman’s recounting of the child’s story failed to qualify for

admission under the state’s “tender-years exception” because D.D. told his mother about the abuse

a few days before he met Bowman.1 Because the evidence was a “near-miss” for that specifically

applicable rule, Katt contended that sanctioning its admission under the general residual exception

would be inappropriate as a sort of end-run around the more precise rule. In the end, both the

Michigan Court of Appeals and the Michigan Supreme Court upheld the admission of Bowman’s

testimony under the residual exception as a matter of first impression. See People v. Katt, 639

N.W.2d 815 (Mich. Ct. App. 2001), aff’d, 662 N.W.2d 12 (Mich. 2003).


           Having exhausted his Michigan remedies, Katt petitioned for habeas corpus relief under 28

U.S.C. § 2254, setting forth four claims. Although the district court denied the petition, it was

persuaded that reasonable jurists could debate the federal constitutional propriety of the admission

of the hearsay testimony under Michigan’s residual hearsay exception. With this appeal Katt

maintains that the social worker’s testimony violated his rights under the Due Process and

Confrontation Clauses.


                                                  II



       1
          The rule admits a social worker’s testimony about child abuse only if the social worker is
the first to hear the accusations. See Mich. R. Evid. 803A.

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        A. Due Process Claim


        We review de novo a district court’s judgment denying habeas corpus relief. Bey v. Bagley,

500 F.3d 514, 518 (6th Cir. 2007). And because Katt filed his petition after the effective date of

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), its provisions govern.

Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007).


        A habeas petitioner must “fairly present” federal claims in state courts and exhaust state

remedies before seeking collateral relief. 28 U.S.C. § 2254(b)(1)(A); see Whiting v. Burt, 395 F.3d

602, 612 (6th Cir. 2005). Exhaustion “protect[s] the state courts’ role in the enforcement of federal

law and prevent[s] disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518

(1982). More to the point, it gives state prisoners an incentive to “seek full relief first from the state

courts, thus giving those courts the first opportunity to review all claims of constitutional error.”

Id. at 518–19. The petitioner must make the same federal claim in state and federal courts because

“[t]he rule would serve no purpose if it could be satisfied by raising one claim in the state courts

and another in the federal courts.” Picard v. Connor, 404 U.S. 270, 276 (1971).


        To “fairly present” a federal claim, the petitioner must plead both a factual and legal basis

for the claim. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). We examine a petitioner’s

pleadings for


        (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
        state cases employing federal constitutional analysis; (3) phrasing the claim in terms

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        of constitutional law or in terms sufficiently particular to allege a denial of a specific
        constitutional right; or (4) alleging facts well within the mainstream of constitutional
        law.
Id. Meeting the task of fair presentation does not require reciting “chapter and verse” of

constitutional law, but only “adequately appris[ing] the state courts of the constitutional theory to

be relied upon at appellate review.” Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987).


        The Warden argues that Katt failed to do just that, depriving this court of jurisdiction. We

agree as to Katt’s Due Process claim. Katt offers only one sentence, accompanied by one citation,

to show that he fairly presented a federal due process claim. In his Michigan Supreme Court brief,

he wrote:


        Admission of the hearsay not only violated the rules of evidence, it also denied Mr.
        Katt’s constitutional rights to due process and a fair trial. US Const, Ams V, VI,
        XIV; Const 1963, art 1, §§17, 20; Walker v Engle, 703 F2d 959, 962–963 (CA 6,
        1983)(errors in evidentiary rulings under state law may deny a defendant’s federal
        constitutional right to due process if they render the trial fundamentally unfair).


JA 23. Katt claims that this statement constituted “his sole assignment of error,” but in his brief

to the Michigan Supreme Court seeking leave to appeal, he actually grounded the assignment of

error in state law:


        The trial judge committed reversible error in admitting under the catchall exception,
        MRE 803(24), and over defense objection the hearsay testimony of a social worker
        about what [D.D.] told her where the statement was inadmissible under the
        appropriate hearsay exception, the tender-years rule, MRE 803A.




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JA 136 (all letters capitalized in original). In turn, the Michigan Supreme Court approached the

question as one of state law: “The issue in this case is whether the trial court properly admitted

under MRE 803(24) the victim’s hearsay statement made to a social worker.” Katt, 662 N.W.2d

at 14; see also People v. Katt, 649 N.W.2d 72 (Mich. 2002) (table) (granting leave to appeal

“limited to the issue of whether the trial judge erred in admitting testimony from the protective

services worker under MRE 803(24)”).


        Our cases view Katt’s isolated allusion to “constitutional rights to due process and a fair

trial” as failing to afford the Michigan courts adequate notice that Katt intended to invoke the Due

Process Clause. See, e.g., Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (where a

petitioner alleged that he had been deprived of “due process and a fair trial by an impartial jury” and

cited the Sixth and Fourteenth Amendments, he had not “fairly presented” a federal claim to the

state courts); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004) (“[G]eneral allegations of the

denial of rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present claims’ that specific

constitutional rights were violated.”) (internal citations omitted); see also Riggins v. McGinnis, 50

F.3d 492, 494 (7th Cir. 1995) (“A lawyer need not develop a constitutional argument at length, but

he must make one; the words ‘due process’ are not an argument.”).


        And since Katt did not fairly present a due process claim to the Michigan courts, we analyze

whether he can return to Michigan courts to exhaust his claim properly. See Bell v. Bell, 512 F.3d

223, 231 n.3 (6th Cir. 2008) (en banc). Given that a Michigan “defendant may not file an


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application for leave to appeal from a judgment of conviction and sentence if the defendant has

previously taken an appeal from that judgment by right,” Mich. Ct. R. 7.205(F)(2), as Katt did,

Michigan rules foreclose proper exhaustion at this stage, rendering Katt’s claim procedurally

defaulted. See Mich. Ct. R. 6.508(D)(3)(a). Katt makes no attempt to hurdle this barrier by a

showing of cause and prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722, 750 (1991). We therefore affirm the district court’s judgment finding Katt’s due

process claim unexhausted and properly dismissed.


        B. Confrontation Clause Claim


        As for Katt’s Confrontation Clause claim, we assume, without deciding, that Katt “fairly

presented” this because, regardless of exhaustion concerns, AEDPA deference dooms it. See 28

U.S.C. § 2254(b)(2) (authorizing a habeas court to deny “[a]n application for a writ of habeas

corpus . . . on the merits, notwithstanding the failure of the applicant to exhaust the remedies

available in the courts of the State”).


        AEDPA mandates deferential review of state-court judgments affirming the conviction of

a habeas petitioner, allowing this court to grant relief only if the state adjudication “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.” 28 U.S.C. § 2254(d)(1); see Durr

v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007).



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        Nonetheless, Katt seeks de novo review of his Confrontation Clause claim. This escape

from AEDPA deference is only possible if he fairly presented his claim, but the Michigan courts

chose not to resolve it and made no decision to which we can defer. See Vasquez v. Jones, 496 F.3d

564, 569 (6th Cir. 2007). Our review of the Michigan decisions, however, confirms that the courts

did adjudicate Katt’s Confrontation Clause claim, albeit tailoring their discussion to reflect his brief

supporting argument.


        But because the Michigan Supreme Court ultimately resolved the claim in a footnote “with

little analysis on the substantive constitutional issue,” we apply modified AEDPA deference. See

Vasquez, 496 F.3d at 569. Under this modified approach, “a federal habeas court must conduct an

independent review of the record and applicable law to determine whether, under the AEDPA

standard, the state court decision is contrary to federal law, unreasonably applies clearly established

law, or is based on an unreasonable determination of the facts in light of the evidence presented.”

Howard v. Bouchard, 405 F.3d 459, 467 (6th Cir. 2005); see also 28 U.S.C. § 2254(d)(1).

Nevertheless, “review remains deferential.” Id. at 467–68.


        Katt seeks relief on the “unreasonable application” prong, contending that the Michigan

courts identified the correct Confrontation Clause decisions but unreasonably applied them to the

facts of his case. See Williams v. Taylor, 529 U.S. 362, 408 (2000). We disagree; far from

unreasonably applying the Supreme Court’s decisions, the Michigan courts were directly on point

in rejecting Katt’s Confrontation Clause challenge.


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        We note at the outset that although Katt asks for retroactive application of Crawford v.

Washington, 541 U.S. 36 (2004), a decision post-dating his state court proceedings, the Supreme

Court’s decision in Whorton v. Bockting, 127 S. Ct. 1173 (2007), forecloses Crawford reliance. See

id. at 1184 (holding that “Crawford announced a ‘new rule’ of criminal procedure and that this rule

does not fall within the Teague exception for watershed rules”).


        Courts knew before Crawford that the Confrontation Clause “permits . . . the admission of

certain hearsay statements against a defendant,” Maryland v. Craig, 497 U.S. 836, 847 (1990), so

long as they exhibit “adequate indicia of reliability,” Ohio v. Roberts, 448 U.S. 56, 63 (1980).

Either a “firmly rooted hearsay exception” or “a showing of particularized guarantees of

trustworthiness” permit an inference of reliability. Id.


        In upholding the “near miss” application of the state’s residual hearsay rule, the Michigan

courts primarily discussed Idaho v. Wright, 497 U.S. 805, 817 (1990). There, the Supreme Court

held that the analogous federal residual hearsay exception is not a firmly rooted exception for

Confrontation Clause purposes, but the Court then offered examples of “particularized guarantees

of trustworthiness” that pave the path to admission: spontaneity and consistent repetition of the

statement, the mental state of the declarant, the use of terminology unexpected of a child of similar

age, and the lack of a motive to fabricate. Id. at 821–22.


        Both Michigan appellate courts found that the trial court thoroughly parsed the hearsay for

“particularized guarantees of trustworthiness” before admitting Bowman’s account of the interview

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with D.D. Neatly tracking Wright’s suggested factors, the Michigan Court of Appeals summarized

the facts that made Bowman’s testimony reliable:


        As the trial court noted, D.D. voluntarily and spontaneously told Bowman about the
        sexual abuse. Notably, Bowman was present at D.D.’s school to question him about
        alleged physical abuse by his mother, and was only apprised of the sexual abuse
        when D.D. volunteered the information. Moreover, throughout his conversation
        with Bowman, D.D.’s recitation of the relevant facts concerning the sexual abuse
        remained consistent. D.D. also had personal knowledge of the sexual abuse of both
        himself and A.D. because he was present when it occurred. Bowman further stated
        that D.D. freely recounted the circumstances of the abuse without coaxing or leading
        questions on her part and that he frequently used terminology “unexpected of a child
        of similar age.” Likewise, Bowman indicated that she is trained and proficient in
        interviewing suspected victims of child abuse and used open-ended, nonleading
        questions to glean information from D.D. Finally, as the trial court correctly
        observed, there is absolutely no indication in the record that substantiates
        defendant’s claim that seven-year-old D.D. had a motive to fabricate defendant’s
        involvement in these heinous offenses.


Katt, 639 N.W.2d at 823 (citations omitted).


        Although Michigan’s residual hearsay rule required “particularized guarantees of

trustworthiness” as a matter of evidence law, then-existing Supreme Court Confrontation Clause

precedent did not require any comparable showing “when a hearsay declarant is present at trial” and

the defendant has “the traditional protections of the oath, cross-examination, and opportunity for

the jury to observe the witness’ demeanor.” United States v. Owens, 484 U.S. 554, 560 (1988). The

Michigan Supreme Court therefore met the AEDPA test when it stated:


        If the declarant does testify at trial and is subject to cross-examination, corroborative
        evidence may be used to determine the trustworthiness of statements in criminal

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        cases. The reason is that the Confrontation Clause is not implicated. United States
        v. Owens, 484 U.S. 554, 560, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).


Katt, 662 N.W.2d at 24 n.12. That is, the trial court’s procedure mitigated Confrontation Clause

concerns when D.D. and A.D. testified because Katt could and did cross-examine them. The

Michigan Court of Appeals suggested as much when it observed after its discussion of guarantees

of trustworthiness: “[B]oth D.D. and his sister A.D. testified at trial and were subject to extensive

cross-examination by defense counsel. Thus, ‘the jury could weigh [D.D.’s] statement and accord

the statement whatever weight the jury deemed appropriate.’” Katt, 639 N.W.2d at 824.


        Katt argues that, even though they were present at trial, the children were reticent and gave

nonresponsive answers, unconstitutionally depriving him of the opportunity for cross-examination.

The Supreme Court rejected a similar argument in Owens, which arose from a prisoner who

attacked his correctional counselor with a metal pipe. 484 U.S. at 556. The victim identified his

attacker to an FBI agent, but by the time of the trial the victim was unable to remember the details

of the assault. Id. The Court held that the Confrontation Clause allowed the FBI agent to testify

to the hearsay identification because the defendant had at least the opportunity to cross-examine the

declarant-victim, even though cross-examination might not be fruitful. Id. at 560.


        We have since applied Owens to permit four adult witnesses to relate a child declarant’s

statements and fortify the child’s own testimony. Bugh v. Mitchell, 329 F.3d 496, 501 (6th Cir.

2003). Because the child “was present at trial and subjected to cross-examination . . . an inquiry


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into the reliability of the statements [was] not needed to satisfy the Confrontation Clause.” Id. at

510.


        Finally, Katt complains that he could not effectively cross-examine the children because

they testified via two-way closed-circuit television and not face-to-face with Katt. But Katt

stipulated to using this procedure, see United States v. Kappell, 418 F.3d 550, 553 (6th Cir. 2005),

and never challenged it in the state courts or in the district court. The factual basis for this claim

has not been exhausted in the state courts, and we do not consider habeas claims raised for the first

time on appeal. Seymour v. Walker, 224 F.3d 542, 561 (6th Cir. 2000); see also Vasquez, 496 F.3d

at 568. Even if we were to review the claim, no Supreme Court decisions available during the

Michigan proceedings prohibited the procedure.


                                                 III


        In light of our conclusions that the Michigan courts did not unreasonably apply then-existing

Supreme Court Confrontation Clause decisions and that Katt procedurally defaulted his due process

claim, we affirm the district court’s dismissal of Katt’s petition for habeas corpus.




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