                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0012n.06

                                           No. 15-1831
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS                           Jan 06, 2017
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk

  MARIO ELIZONDO,                                        )
                                                         )
         Petitioner - Appellant                          )
                                                         )     ON APPEAL FROM THE
  v.                                                     )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE EASTERN
  CATHERINE BAUMAN, Warden,                              )     DISTRICT OF MICHIGAN
                                                         )
         Respondent - Appellee                           )
                                                         )

BEFORE:        KEITH, BATCHELDER, and CLAY, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Petitioner Mario Elizondo (“Petitioner”) seeks

review of the district court’s denial of his petition for writ of habeas corpus brought under

28 U.S.C. § 2254. Following a criminal jury trial in the State of Michigan, Petitioner was

convicted of Criminal Sexual Conduct in the first and second degrees in violation of Mich.

Comp. Laws §§ 750.520b, 750.520c. Petitioner timely filed this appeal, arguing that the state

trial court judge pierced the veil of judicial impartiality in violation of his right to a fair trial

under the Fifth and Fourteenth Amendments of the United States Constitution. Petitioner claims

that his constitutional rights were violated when the trial judge took on the role of prosecutor by

interrupting cross-examination on multiple occasions to question Petitioner regarding his

testimony. The district court granted a Certificate of Appealability on this issue, and oral

argument was held on October 19, 2016.
No. 15-1831, Elizondo v. Bauman


       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) outlines the appropriate

standard of review for this case. AEDPA provides that:

       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). After a thorough review of the record, the arguments presented by the

parties, and the relevant case law, we conclude that the state court determination was not

contrary to clearly established federal law. Although Petitioner cited to the Michigan Supreme

Court case of People v. Stevens, 869 N.W.2d 233 (2015) to support the proposition that a trial

judge’s questioning of defense witnesses in front of a jury can show partiality and violate a

defendant’s right to a fair trial, Stevens has never been cited to or adopted by a federal court. It is

well-established that, “[i]n conducting habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.

McGuire, 502 U.S. 62, 68 (1991); Landrum v. Mitchell, 625 F.3d 905, 913 (6th Cir. 2010).

“[W]e do not consider on habeas review a state court's determination of state law.” Railey v.

Webb, 540 F.3d 393, 398 (6th Cir. 2008). Because no United States Supreme Court holding

supports Petitioner’s claim of judicial bias flowing from a judge’s interrogation of a criminal

defendant at trial, the state court proceeding did not result in a decision that was contrary to




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No. 15-1831, Elizondo v. Bauman


clearly established federal law.1 See Carey v. Musladin, 549 U.S. 70, 77 (2006). Accordingly,

we AFFIRM the district court’s denial of Petitioner’s habeas petition under 28 U.S.C. § 2254.




        1
            Since the Sixth Circuit cases cited by the concurrence were decided, the Supreme Court has made it
abundantly clear that “circuit precedent does not constitute ‘clearly established Federal law, as determined by the
Supreme Court’” when conducting a review under AEDPA. Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012)
(quoting AEDPA, 28 U.S.C. § 2254(d)); see also Renico v. Lett, 130 S. Ct. 1855, 1865–1866 (2010) (overturning
the Sixth Circuit for failing to conform to AEDPA standard of review).

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No. 15-1831, Elizondo v. Bauman


       CLAY, Circuit Judge, concurring. I concur in the majority opinion’s conclusion that

we should affirm the district court’s denial of Elizondo’s habeas petition. I agree with my

colleagues that Elizondo has failed to show that the state court’s resolution of his judicial bias

claim “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). However, I write to clarify how my thinking diverges a bit from that of my

colleagues.

       Specifically, the majority states that “because no United States Supreme Court holding

supports Petitioner’s claim of judicial bias flowing from a judge’s interrogation of a criminal

defendant at trial, the state court proceeding did not result in a decision that was contrary to

clearly established law.” This language could be read to imply that no matter how egregious a

judge’s intervention into the trial proceedings, or disruptive of the trial proceedings, a defendant

would not be able to make out a claim of judicial bias. Contrary to the aforesaid statement

contained in the majority opinion, this Court previously interpreted the Supreme Court’s decision

in Liteky v. United States, 510 U.S. 540 (1994) to hold that a judge’s repeated interruption and

cross-examination of witnesses could amount to a cognizable claim of judicial bias when

circumstances appear “so extreme as to display clear inability to render fair judgment.” Lyell v.

Renico, 470 F.3d 1177, 1186 (6th Cir. 2006); see also Alley v. Bell, 307 F.3d 380, 386 (6th Cir.

2002) (looking to the Supreme Court’s decision in Liteky for the standard for deciding judicial

bias claims); Allen v. Hawley, 74 F. App’x 457, 460 (6th Cir. 2003) (Clay, J., dissenting).

       Admittedly, claims of judicial bias present defendants with a difficult standard to meet.

And the facts of this case indicate that Elizondo has failed to demonstrate that the trial judge’s

interventions amounted to a constitutional violation. However, in light of the Supreme Court’s



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No. 15-1831, Elizondo v. Bauman


holding in Liteky v. United States, supra, rather than assert that the state court proceedings failed

to result in a decision that was contrary to clearly established law, I would simply emphasize that

the trial court’s application of clearly established law was not unreasonable, based on the

particular facts of this case, and would affirm on that basis.




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