                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0330n.06

                                           No. 09-1344
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                            May 28, 2010
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


ALI SABRI JAWAD AL-TIMIMI,                               )
                                                         )        ON APPEAL FROM THE
        Petitioner-Appellant,                            )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF MICHIGAN
                                                         )
ANDREW JACKSON,                                          )                          OPINION
                                                         )
        Respondent-Appellee.                             )


BEFORE:        GUY, COLE, and SUTTON, Circuit Judges.

        COLE, Circuit Judge. The petitioner-appellant, Ali Sabri Jawad Al-Timimi, appeals the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Because

Al-Timimi has not demonstrated that the requirements for habeas relief under the Antiterrorism and

Effective Death Penalty Act of 1996 have been met, we AFFIRM the district court’s denial of his

petition.

                                        BACKGROUND

        Following a jury trial in the Wayne County Circuit Court, Ali Sabri Jawad Al-Timimi (“the

petitioner”) was convicted of second-degree murder and sentenced to fifteen to twenty-five years in

prison. The conviction followed from a traffic collision on October 3, 2001 involving the petitioner

and Waheed Al-Alyawi—the boyfriend of the petitioner’s sixteen-year-old sister-in-law, Zamen Al-

Kasid—who was riding a motorcycle when the petitioner’s car struck and killed him. The petitioner

fled the scene in his car, but two eye-witnesses recorded his license-plate number. When located and
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Case No. 09-1344

interviewed by police, he initially denied knowing about the accident at all; later, he admitted that

he had been involved in the accident but denied knowing Waheed. After the police learned of the

romantic connection between Waheed and Zamen, of which Zamen’s family did not approve, the

petitioner was charged with first-degree murder.

       On October 15, 2001, the police conducted an interview with Zamen, who stated that Waheed

had told her prior to the accident that he was sick of his life without her and would kill himself to

prove his love. At the petitioner’s preliminary examination on October 26, 2001, held before

Dearborn District Judge Virginia Sobotka, Zamen testified under oath as a witness for the

prosecution. Because of malfunctioning recording equipment and the subsequent death of the court

reporter, only a partial transcript of her testimony is available. The partial transcript reveals that

Zamen testified that, at the time of the accident, she lived with her parents, the petitioner and the

petitioner’s wife and that, before his death, Waheed had asked her parents for permission to marry

her. Initially, her parents had approved the engagement, but later withdrew their approval.

Nonetheless, Zamen stayed in contact with Waheed, resulting in the petitioner’s visiting her at school

on October 3, 2001, the day of Waheed’s death, to discuss the impropriety of the relationship.

       While the transcript ends at this point, according to testimony later given at trial by Judge

Sobotka and two police officers who had attended the hearing, Zamen proceeded to testify that the

petitioner had advised her to end the relationship. Later on October 3, Zamen’s father discovered

her in her bedroom speaking on her cellular telephone with Waheed. An argument ensued in which

Zamen’s father struck her at least once. Once her father left the room, the petitioner confronted

Zamen again, threatening that he would kill Waheed and that her brother would kill her. Judge

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Sobotka testified that she had copied verbatim Zamen’s testimony on this point: According to her

notes, Zamen had stated that the petitioner had said: “You’ll see what I’ll do to deceased. He won’t

be alive. [Zamen’s brother] will kill you. . . . I will kill decease[d]. . . . Today you will see what I

will do. I will kill. And your brother will kill you.” (Trial Tr. 62-63, Oct. 9, 2002.)

       After the hearing, Zamen was taken into protective custody but escaped in December 2001.

Upon becoming aware of her disappearance in March or April 2002, the police conducted a search

for her, but Zamen still could not be located when the petitioner’s trial began in October 2002. In

light of her absence, the trial court allowed the partial transcript to be read to the jury and the

prosecution to call as witnesses Judge Sobotka and the two police officers, who recounted their

recollection of the remainder of Zamen’s testimony. Judge Sobotka–-who was not identified as a

judge when she testified—acknowledged that she had taken only two pages of notes during Zamen’s

testimony, which she described as not having lasted very long. Both officers acknowledged that they

had not taken any notes and were testifying from memory. On cross-examination, one of the officers

further stated that she could not remember which facts had been brought out during the direct

examination and which on cross-examination.

       Defense counsel did not call any witnesses who had been in the courtroom during the

preliminary examination, as none could be located who had a full recollection of the cross-

examination testimony. Counsel did call other witnesses, however, including one of Zamen’s sisters,

Rafah Al-Kasid, who testified that Zamen told her that Waheed had threatened to kill himself if she

would not marry him and that the police had coerced her to testify in the manner she did at the

preliminary examination. Other witnesses called by the defense testified that the petitioner was not

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involved in disciplining Zamen, that it would have been against the family’s religious beliefs for him

to have been left alone with her, and that he had not in fact been present at the house during the time

of the alleged fight between Zamen and her father.

       At the conclusion of the five-day trial, the jury found the petitioner guilty of second-degree

murder. On direct appeal, the petitioner argued that his right to confront the witnesses against him

had been violated by the admission of Zamen’s prior testimony. The Michigan Court of Appeals

rejected this argument and affirmed his conviction. People v. Al-Timimi, No. 245211, 2004 WL

1254271 (Mich. Ct. App. June 8, 2004) (unpublished). The Supreme Court of Michigan denied

leave to appeal on March 31, 2005, over the dissent of two justices. People v. Al-Timimi, No.

126725, 693 N.W.2d 822 (Mich. Mar. 31, 2005) (table). On October 6, 2005, the petitioner filed

for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan,

again arguing that his Confrontation Clause rights had been violated. On February 17, 2009, the

district court denied the petition but, on February 18, granted a certificate of appealability. We have

jurisdiction over the petitioner’s appeal under 28 U.S.C. §§ 1291 and 2253.

                                            ANALYSIS

       We review de novo a district court’s decision to grant or deny a petition for a writ of habeas

corpus. Joseph v. Coyle, 469 F.3d 441, 449 (6th Cir. 2007). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), we may grant a writ of habeas corpus with respect to a claim

adjudicated on the merits in state court proceedings if the state court’s decision “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). “Clearly established federal law”

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under AEDPA refers to the holdings, not the dicta, of the Supreme Court at the time of the state-

court decision at issue. Railey v. Webb, 540 F.3d 393, 413-14 (6th Cir. 2008) (citing Yarborough

v. Alvarado, 541 U.S. 652, 660-61 (2004)). A state-court decision is contrary to clearly established

federal law “if the state court applies a rule that contradicts the governing law set forth in [the

Supreme Court’s] cases” or “if the state court 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.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state-court decision is

an unreasonable application of clearly established federal law if it “correctly identifies the governing

legal rule but applies it unreasonably to the facts of a particular prisoner’s case,” id. at 407-08, or if

it “either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme

Court precedent to a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000).

        The petitioner argues that the admission of Zamen’s testimony from the preliminary

examination violates the Confrontation Clause of the Sixth Amendment to the United States

Constitution. The Supreme Court has made clear that the right to confrontation bars “admission of

testimonial statements of a witness who did not appear at trial unless he was unavailable to testify,

and the defendant had had a prior opportunity for cross-examination.” Davis v. Washington, 547

U.S. 813, 821 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). As the

petitioner argues, there is some question whether a preliminary hearing necessarily offers an

adequate prior opportunity for cross-examination for Confrontation Clause purposes. See Vasquez

v. Jones, 496 F.3d 564, 577 (6th Cir. 2007) (doubting whether “the opportunity to question a witness

at a preliminary examination hearing satisfies the pre-Crawford understanding of the Confrontation

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Clause’s guarantee of an opportunity for effective cross-examination”) (internal quotation marks

omitted); see also Prior Opportunity for Cross-Examination, Posting of Richard D. Friedman to The

Confrontation Blog, http://confrontationright.blogspot.com/2005/02/prior-opportunity-for-cross.html

(Feb. 11, 2005, 10:12 EST) (discussing potential timing and motivation problems that may make

prior opportunity for cross-examination inadequate).        Since the purpose of the preliminary

examination is only to determine whether probable cause exists to proceed to trial, defense counsel

may lack adequate motivation to conduct a thorough cross-examination, see Barber v. Page, 390

U.S. 719, 725 (1968) (noting in dicta that “[a] preliminary hearing is ordinarily a much less searching

exploration into the merits of a case than a trial, simply because its function is the more limited one

of determining whether probable cause exists to hold the accused for trial”), and may wish to avoid

tipping its hand to the prosecution by revealing the lines of questioning it plans to pursue. A second

problem is that the opportunity for cross-examination at the preliminary examination may come too

early in the proceedings to be useful to the defense. For example, at the time of the hearing in this

case, the petitioner’s counsel was unaware of the October 15, 2001 interview the police conducted

with Zamen and had not yet been given the interview notes by the prosecution—nondisclosure that,

had it occurred at the trial stage, may well have implicated the petitioner’s due process rights under

Brady v. Maryland, 373 U.S. 83 (1963) (requiring prosecution’s disclosure of material evidence

favorable to the accused).

       These potential problems notwithstanding, because this case is before us on collateral review,

we may grant habeas relief only if the petitioner has satisfied the high threshold established by

AEDPA. Reviewing the Supreme Court’s cases in this area, we cannot find that the trial court’s

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decision to admit the petitioner’s testimony was contrary to, or involved an unreasonable application

of clearly established federal law. It is true, as the petitioner argues, that the Supreme Court has

acknowledged that a preliminary hearing generally involves a less searching exploration into the

merits of a case than does a trial. See Barber, 390 U.S. at 725. But this statement was dicta, not

clearly established law for the purposes of AEDPA. See Railey, 540 F.3d at 413-14. Nor was it left

unqualified: The Barber Court went on to suggest that “there may be some justification for holding

that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demand

of the confrontation clause where the witness is shown to be actually unavailable.” 390 U.S. at 725-

26. Moreover, in its later decisions, the Court appears to have retreated from the doubts it expressed

in Barber by finding that the opportunity for cross-examination afforded at a preliminary

examination may satisfy the Confrontation Clause in at least some circumstances.

       For example, in California v. Green, 399 U.S. 149 (1970), the Court found no Sixth

Amendment violation where the trial court admitted a prior statement of a witness made at a

preliminary hearing. As the Court noted, the witness was under oath; the defendant “was represented

by counsel—the same counsel in fact who later represented him at the trial,” and “had every

opportunity to cross-examine [the witness] as to his statement;” and “the proceedings were

conducted before a judicial tribunal equipped to provide a judicial record of the hearings.” Id.

While the Court found that the case did not present an occasion “to map out a theory of the

Confrontation Clause,” id. at 162, it held that the circumstances of the particular preliminary hearing

at issue, “closely approximating those that surround the typical trial,” satisfied the Sixth

Amendment. Id. at 165; see also id. (“[W]e do not find the instant preliminary hearing significantly

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different from an actual trial to warrant distinguishing the two cases for purposes of the

Confrontation Clause.”).

       Similarly, in Ohio v. Roberts, 448 U.S. 56 (1980), the Court held that the admission of a prior

statement given at a preliminary hearing had sufficient “indicia of reliability” to satisfy the

Confrontation Clause. The Court noted that Green suggested that “the opportunity to cross-examine

at the preliminary hearing—even absent actual cross-examination—satisfies the Confrontation

Clause,” although counsel had, in fact, cross-examined the witness at the earlier proceeding. Id. at

70. The Court in Roberts declined to resolve whether the mere opportunity to cross-examine or de

minimis questioning actually would be constitutionally sufficient, since, like in Green, defense

counsel had “tested [the witness’s] testimony with the equivalent of significant cross-examination.”

Id. In addition, the same “accouterments of the preliminary hearing” that satisfied the Court in

Green were present. Id. at 73. Thus, “[s]ince there was an adequate opportunity to cross-examine

[the witness], and counsel . . . availed himself of that opportunity,” the Sixth Amendment was

satisfied. Id. (internal quotation marks omitted).

       While the Court subsequently rejected the “indicia of reliability” test in Crawford, it

approvingly cited the outcome of both Roberts and Green. See Crawford, 541 U.S. at 57-58. The

Crawford Court also affirmed the results in Barber and Motes v. United States, 178 U.S. 458 (1900),

where prior testimony given at a preliminary hearing was excluded because the government had not

established the unavailability of the witness, and in Pointer v. Texas, 380 U.S. 400 (1965), where

evidence was excluded because the defendant was not represented by counsel at the preliminary

hearing. See Crawford, 541 U.S. at 57. At the preliminary hearing in this case, as in Roberts and

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Green and unlike in Pointer, the petitioner was represented by counsel, who was afforded a full

opportunity to cross-examine the prosecution’s witnesses, without any apparent restriction by the

presiding judge, and availed himself of this opportunity to the extent that he saw fit. Unlike in

Barber and Motes, there is no indication that the government played a role in Zamen’s unavailability.

And no decision of the Court has suggested if or when the unavailability of potentially favorable

evidence may undermine the adequacy of an opportunity for cross-examination at a preliminary

examination. Accordingly, we cannot say that the trial court’s decision to admit the testimony from

the preliminary examination was contrary to, or an unreasonable application of clearly established

federal law.

       The petitioner also argues that, even if the fact of the testimony’s admission did not violate

the Confrontation Clause, the manner of its admission did. According to the petitioner, Green sets

out four minimal criteria that must be met to satisfy the Confrontation Clause: (1) the declarant was

under oath at the preliminary hearing; (2) the accused was represented at the preliminary hearing by

the same counsel who later represented him at trial; (3) the accused had every opportunity at the

preliminary hearing to cross-examine the declarant as to his statement; and (4) the proceedings at

the preliminary hearing were conducted before a judicial tribunal equipped to provide a judicial

record of the hearing. In the plaintiff’s view, the fourth purported criterion—that the testimony occur

before a tribunal equipped to provide a judicial record of the hearings—was undermined by the

unavailability of a verbatim record of the proceedings, rendering unconstitutional the recreation of

Zamen’s testimony at trial.



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       As the district court noted, however, the Court in Green clearly did not intend to set out “the

irreducible minimum requirements for prior testimony to pass muster under the Confrontation

Clause.” Al-Timimi v. Jackson, 608 F. Supp. 2d 833, 847 (E.D. Mich. 2009). Indeed, the Court

expressly disclaimed any intent “to map out a theory of the Confrontation Clause.” Green, 399 U.S.

at 162. More fundamentally, the Confrontation Clause simply is not implicated by the manner in

which prior testimony is reproduced at trial. As the Supreme Court stated in Crawford, “the

Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a

substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in

a particular manner: by testing in the crucible of cross-examination.” 541 U.S. at 61. Once the prior

opportunity for cross-examination is satisfied, so too is the Sixth Amendment. See id. at 55 (“We

do not read the historical sources to say that a prior opportunity to cross-examine was merely a

sufficient, rather than a necessary, condition for admissibility of testimonial statements. They

suggest that this requirement was dispositive, and not merely one of several ways to establish

reliability.”). Accordingly, the petitioner’s argument fails.

                                        V. CONCLUSION

       For the reasons above, we AFFIRM the district court’s denial of the petition for issuance of

a writ of habeas corpus.




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