                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 17a0433n.06

                                             No. 16-2336


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                    Jul 24, 2017
ROBERT ANTHONY BOJAJ,                                      )                   DEBORAH S. HUNT, Clerk
                                                           )
       Petitioner-Appellant,                               )
                                                           )
v.                                                         )      ON APPEAL FROM THE
                                                           )      UNITED STATES DISTRICT
MARY BERGHUIS, Warden,                                     )      COURT FOR THE EASTERN
                                                           )      DISTRICT OF MICHIGAN
       Respondent-Appellee.                                )
                                                           )
                                                           )



BEFORE:        GIBBONS, ROGERS, and DONALD, Circuit Judges.

       ROGERS, Circuit Judge.          Robert Bojaj was convicted of second-degree murder in

Michigan after he rear-ended another car while intoxicated, killing the driver of the rear-ended

car. The state trial court allowed the prosecution to introduce data from an event data recorder in

Bojaj’s car at trial without first examining the reliability of the evidence, despite Bojaj’s request

for a Daubert hearing on the issue. Bojaj now seeks a writ of habeas corpus, arguing that the

state trial court’s error denied him due process by rendering his trial fundamentally unfair.

Because the Michigan Court of Appeals’ decision denying Bojaj’s constitutional claim on the

merits was neither contrary to nor an unreasonable application of clearly established Supreme

Court precedent, Bojaj is not entitled to relief.

       While intoxicated, Bojaj rear-ended another car with his Lexus sedan on a divided

highway at 1:30 a.m. on August 15, 2010, killing the woman who was driving the rear-ended car.
No. 16-2336, Bojaj v. Berghuis


People v. Bojaj, No. 303884, 2012 WL 12941199, at *2 (Mich. Ct. App. Nov. 27, 2012). A jury

convicted Bojaj of second-degree murder for the incident in a Michigan trial court. Id. at *1. At

trial, Bojaj did not dispute that he was driving while intoxicated when he caused the wreck. Id.

His blood alcohol measured .26, three times over the legal limit of .08, two hours after the crash.

The Government’s expert testified that this amounted to at least ten drinks for a man of Bojaj’s

size. However, Bojaj did dispute that he had the requisite mens rea for second-degree murder,

id., which in Michigan requires the defendant to have acted with at least “a high probability that

[his actions would] result in death and . . . with a base antisocial motive and with wanton

disregard for human life,” People v. Goecke, 579 N.W.2d 868, 880 (Mich. 1998).

       The prosecution sought to prove the requisite intent through lay and expert testimony

about Bojaj’s erratic driving and speed immediately before the wreck.          Four eyewitnesses

testified about Bojaj’s driving. Two, a married couple who were riding down the highway

together when Bojaj passed them, estimated that Bojaj was traveling 100 mph. The couple also

observed Bojaj hit the rumble strips on the highway’s left shoulder for three to five seconds

before quickly swerving across three lanes of traffic to the rumble strips on the right side of the

highway. Bojaj, 2012 WL 12941199, at *2. Another witness “described the Lexus as traveling

‘at a very high rate of speed’ and ‘swerving.’” Id. The fourth eyewitness did not estimate

Bojaj’s speed but saw Bojaj’s car swerving from the left to the right side of the highway and

hitting the rumble strips. Id.

       The prosecution’s remaining evidence involved data from an event data record (EDR) in

Bojaj’s Lexus and an expert crash re-constructionist’s evaluation using that data. The Michigan

Court of Appeals described this evidence in detail:

       After establishing these facts, the prosecutor presented the testimony of Mark
       Jakstis, a Design and Technical Analysis Manager at Toyota Motor Sales, U.S.A.

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       Jakstis described the Lexus’s EDR as “part of the airbag system,” with the
       capability of recording certain information during a “trigger event” such as a
       crash. The EDR stores information acquired milliseconds before an accident,
       including the vehicle’s speed, the engine speed, the accelerator pedal position, and
       the driver’s brake use. The last vehicle speed recorded by the EDR in defendant’s
       Lexus was 78.3 mph, which Jakstis described as “the maximum recordable speed
       for this vehicle.” The EDR reported that the accelerator was “in the mid
       position,” which meant that the driver was “pushing down on the accelerator a
       bit” and “still accelerating” at the time the EDR stopped recording data.
       According to Jakstis, the EDR reported that the Lexus’s brakes had not been
       applied.

       In addition to this information, Jakstis claimed that the EDR contained the
       Lexus’s “Delta–V,” which he defined as “the change in velocity of the vehicle
       during the crash.” Jakstis interpreted the delta-V data as consistent with a
       “34 mile an hour change in speed during this crash,” adding “and it’s still going
       up.” Under cross-examination Jakstis admitted that Toyota considered the EDR
       data system in defendant’s Lexus a “prototype tool,” and that the specific device
       was used only in Toyota vehicles. He conceded that Toyota designed the EDR
       “to look at the performance of an airbag system in a crash” rather than to aid law
       enforcement after an accident.

       Michigan State Police Sergeant Kevin Lucidi, a “traffic crash reconstructionist,”
       utilized the EDR data to formulate one of the two speed determinations he
       provided to the jury. Lucidi first calculated defendant’s speed at the time of the
       impact without resorting to the EDR data, instead basing his calculations on the
       “conservation of linear momentum formula.” This approach relies on “basic
       physics princip[le]s” predicated on physically-measurable components including
       the coefficient of friction, vehicle weights, the distance the vehicles traveled post-
       impact, and the speed of the victim’s vehicle. Because the speed of [the victim’s]
       vehicle at the time of impact was unknown, Lucidi assigned it three different
       speeds: 50, 60 and 70 mph. After plugging these numbers into an equation,
       Lucidi calculated speed ranges for the Lexus. He opined that based on this
       mathematical formula, the Lexus’ minimum speed at impact ranged from 82 to 98
       mph and that its maximum speed fell between 109 and 126 mph.

       Lucidi then described a second, independent methodology for calculating
       defendant’s speed which incorporated the delta-V supplied by the EDR.
       Applying the delta-V number testified to by Jakstis, Lucidi opined that if the
       [victim] was traveling between 50 and 60 mph at the time of impact, the Lexus’s
       maximum speed ranged from 117 to 126 mph. Thus, Lucidi concluded that the
       top number in the speed range—126 mph—was the same regardless of the
       formula he employed.

       The defense countered Lucidi’s opinions with the testimony of accident
       reconstructionist Larry Petersen. Petersen criticized several of the assumptions

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No. 16-2336, Bojaj v. Berghuis


        built into Lucidi’s calculations. For example, Petersen estimated that the front
        end of the Lexus contacted 50% of the rear of the [victim’s car], while Lucidi
        believed the overlap percentage to have been 80%. Petersen believed that the
        correct coefficient of friction differed from the figure Lucidi relied on, because
        the pavement likely was somewhat damp. Petersen described the manner in
        which these variables changed the ultimate speed calculations. In Petersen’s
        view, defendant’s vehicle was moving at a speed between 85 and 97 mph when
        the crash occurred.

Id. at *2–*3.

        Before trial, Bojaj had requested a Daubert hearing to challenge the foundation of

Lucidi’s accident-reconstruction testimony, which the trial court had denied.1 After the jury

returned a guilty verdict on the second-degree murder charge, Bojaj moved for a new trial,

arguing that the trial court’s admitting the EDR data without holding a Daubert hearing to rule

on the evidence’s reliability violated Bojaj’s due process rights by denying him a fair trial. Id. at

*3–*4. The trial court agreed and granted Bojaj’s request for a new trial. Id. In so ruling, the

court explained that before trial it did not understand the nature of Bojaj’s Daubert request but

that the EDR’s reliability was seriously questioned at trial—the read-out tool used to extract

information from the EDR is a prototype, Toyota warns that EDR data is not reliable unless

independently corroborated, and the EDR was developed to provide airbag statistics, not for

accident reconstruction. The court also noted: “This certainly isn’t some harmless error, as

well. . . . It’s not curable.”

        However, the Michigan Court of Appeals reversed the trial court’s decision. See Bojaj,

2012 WL 12941199, at *5. The state appellate court agreed that, “before allowing Lucidi to use

the data as a foundation for his testimony, the trial court was required to hold a Daubert

hearing.” Id. Although the court recognized that Bojaj had alleged a due process violation, it


1
  Michigan Rule of Evidence 702 incorporates the reliability standards announced by the Supreme Court in Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 408 (Mich.
2004).

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No. 16-2336, Bojaj v. Berghuis


labelled the trial court’s error “preserved nonconstitutional error.” Id. at *4, *5. The court of

appeals then explained that the error did not warrant a new trial because it was harmless:

        Even assuming that the EDR data was erroneously admitted, the exceedingly high
        speed at which defendant was driving immediately before the accident was
        independently corroborated by eyewitnesses and Lucidi’s conventional speed
        calculation. Admittedly, the delta-V and other evidence purportedly derived from
        the EDR carried the weight of advanced technology. But other powerful evidence
        demonstrated that defendant elected to drive after consuming an enormous
        amount of alcohol, operated his vehicle at a speed approximating 100 mph,
        repeatedly crossed multiple traffic lanes, and ignored the rumble strip’s audible
        warning that he was out of control. Given this evidence, any impropriety in
        admitting the EDR data did not undermine the reliability of the verdict.

Id. at *5. The Michigan Supreme Court denied Bojaj’s application for leave to appeal this

decision. See People v. Bojaj, No. 146805, 834 N.W.2d 502 (Mich. 2013).

        Bojaj then petitioned the district court for a writ of habeas corpus, arguing that the trial

court’s error violated the Fourteenth Amendment’s Due Process Clause by depriving him of a

fundamentally fair trial. The district court denied the petition. See Bojaj v. Berghuis, No. 14-

CV-12193, 2016 WL 4502438, at *9 (E.D. Mich. Aug. 29, 2016). The district court began its

analysis by examining whether the Michigan Court of Appeals adjudicated Bojaj’s due process

claim on the merits, which would subject Bojaj’s petition to AEDPA’s deferential standard of

review. See id. at *4. Although the district court left the question undecided, it indicated that de

novo review was likely appropriate:

        [I]t appears that the Michigan Court of Appeals simply cast the failure to hold a
        Daubert hearing as “nonconstitutional” error without ever saying why there was
        no due-process violation . . . . Perhaps an argument could be made that the
        Michigan Court of Appeals had—silently—concluded that the absence of a
        Daubert hearing “qualifie[d]” as nonconstitutional error because that error was
        not severe enough to rise to a constitutional due-process violation. Although the
        Court thinks this is a somewhat strained reading of the appellate court’s opinion,
        it is not an implausible one.

Id. (second alteration in original).



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       The district court then held, applying de novo review, that Bojaj’s due process argument

fails. The court cited Ege v. Yukins, 485 F.3d 364 (6th Cir. 2007), for the relevant constitutional

standard: “Whether the admission of prejudicial evidence constitutes a denial of fundamental

fairness turns upon whether the evidence is material in the sense of a crucial, critical highly

significant factor.” Bojaj, 2016 WL 4502438, at *4 (quoting Ege, 485 F.3d at 375). The trial

court’s admitting the EDR data without verifying its reliability did not create a constitutional

violation under this standard, the court reasoned, because even if the data were inadmissible, “a

number of factors . . . substantially reduced the prejudice of its admission.” Id. at *5. “First, the

jury heard how the delta-v might be unreliable.” Id. “Second, Bojaj was able to counter Lucidi

with his own expert.” Id. “Third, expert testimony was not the only evidence the jury heard

about Bojaj’s excessive speed. At least three eyewitnesses thought that Bojaj was driving in the

range of 100 mph.” Id. The district court also noted that excessive speed was not the only factor

present to prove the intent required for second-degree murder; the prosecutor argued to the jury

that Bojaj’s extreme level of intoxication and erratic driving, in addition to his speed, supported

the requisite mens rea. Id. Therefore, the district court held, because the EDR data was not so

prejudicial as to deprive Bojaj of a fundamentally fair trial, no constitutional violation occurred,

and there is no grounds for habeas relief. Bojaj now appeals.

       We review Bojaj’s due process claim under AEDPA deference, because the Michigan

Court of Appeals adjudicated the claim on the merits. Bojaj undoubtedly presented a due

process argument to the Michigan Court of Appeals, which recognized the constitutional

argument in its opinion then expressly treated the issue as “preserved nonconstitutional error,”

Bojaj, 2012 WL 12941199, at *4, *5. In such a situation, when a state court was faced with a

habeas petitioner’s constitutional argument but silently rejected it, “a federal habeas court must



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No. 16-2336, Bojaj v. Berghuis


presume” that the state court adjudicated the federal claim on the merits. Johnson v. Williams,

133 S. Ct. 1088, 1096 (2013); see Harrington v. Richter, 562 U.S. 86, 99–100 (2011). Bojaj

makes no argument to rebut the strong Harrington–Johnson presumption. Thus, the Michigan

Court of Appeals’ decision is subject to AEDPA deference under 28 U.S.C. § 2254(d).

       Applying AEDPA deference, the Michigan Court of Appeals did not err in its merits

adjudication that the trial court’s admitting the EDR data without holding a Daubert hearing did

not implicate the Due Process Clause. As Judge Boggs explained in a portion of his dissent in

Ege, “we have observed on a number of occasions that when a habeas claim is predicated on

evidentiary issues, relief depends on the existence of [Supreme Court] precedent establishing the

particular type of evidence at issue as violating the defendant’s due process rights.” Ege, 485

F.3d at 383 (Boggs, J., dissenting). For example, in Bugh v. Mitchell, 329 F.3d 496 (6th Cir.

2003), a petitioner argued that the state trial court had deprived him of a fundamentally fair trial

by admitting propensity evidence against him in the form of prior bad acts. We denied the

petitioner’s claim under AEDPA deference, reasoning that “no clearly established Supreme

Court precedent . . . holds that a state violates due process by permitting propensity evidence in

the form of other bad acts evidence.” Id. at 512; see also Maldonado v. Wilson, 416 F.3d 470

(6th Cir. 2005) (admission of polygraph results). In Bugh, how the propensity evidence affected

the petitioner’s trial did not matter to our AEDPA analysis. Here, we similarly focus AEDPA

deference on whether the trial court’s particular state-law evidentiary error implicates the

Constitution, not on how the error affected Bojaj’s trial.

       Because the Michigan Court of Appeals’ decision that the trial court’s error did not

render Bojaj’s trial fundamentally unfair is neither contrary to nor involves an unreasonable

application of clearly established Supreme Court precedent, Bojaj is not entitled to habeas relief.



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The Supreme Court has never held that admitting evidence of questionable reliability against a

criminal defendant without holding a Daubert hearing or similar procedure violates due process.

Furthermore, it was not objectively unreasonable for the Michigan Court of Appeals effectively

to decide that this type of error does not implicate due process. The Supreme Court did not set a

constitutional floor for the reliability of scientific evidence in Daubert, see Norris v. Schotten,

146 F.3d 314, 335 (6th Cir. 1998), and screening evidence through Daubert’s standards is not

constitutionally required. Rather, as the district court explained, “state rules of evidence are the

primary safeguard against unreliable expert testimony being put before the jury[,] and the Due

Process Clause serves as a distant backstop to these rules.” Bojaj, 2016 WL 4502438, at *6; see

Dowling v. United States, 493 U.S. 342, 352 (1990). Thus, the Michigan Court of Appeals was

not unreasonable to treat the trial court’s error in admitting the EDR data as solely a non-

constitutional issue.

       Even applying the case-specific approach from Ege that the district court employed,

Bojaj is not entitled to habeas relief. In Ege, we evaluated whether a criminal defendant was

denied due process by a state court’s erroneous admission of prejudicial evidence in a nuanced

way, by analyzing the extent to which the challenged evidence prejudiced the defendant’s

criminal trial. 485 F.3d 364; see Brown v. O’Dea, 227 F.3d 642 (6th Cir. 2000) (taking the same

approach). Ege explained that, if the challenged evidence, contrasted against the prosecution’s

properly admitted evidence and the defendant’s rebuttal evidence, was “a crucial, critical highly

significant factor” in bringing about a guilty verdict, the improperly admitted evidence creates a

due process violation. See Ege, 485 F.3d at 375. The dissenting opinion in Ege described that

the majority’s analysis was “at odds” with how this court had previously approached similar due

process challenges in Bugh and Maldonado. See id. at 383 (Boggs, J., dissenting). We need not



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No. 16-2336, Bojaj v. Berghuis


decide whether Ege marks a change in this court’s approach to analyzing when a state-law

evidentiary error creates a due process violation, however, because even following Ege, the trial

court’s error did not render Bojaj’s trial fundamentally unfair. Even assuming the EDR data and

Lucidi’s related testimony would have been excluded under Daubert, the evidence’s prejudice

was tempered for all the reasons listed by the district court: the jury heard about the data’s

unreliability, Bojaj rebutted Lucidi with his own accident reconstructionist, lay-witness

testimony confirmed that Bojaj was driving recklessly and speeding near 100 mph, and factors

other than Bojaj’s speed support the jury’s finding of the requisite mens rea for second-degree

murder.   Thus, under either a case-specific or categorical analysis, the Michigan Court of

Appeals did not err by denying Bojaj’s due process claim.

       Finally, Bojaj makes a strange argument that the doctrine of invited error precludes the

warden from arguing against his habeas petition. The argument clearly fails. Bojaj says that,

because the government had once argued that a Daubert hearing was not required, the

government could not later defend the position that, if a Daubert hearing was required, denial of

the hearing was harmless error. The invited-error doctrine prohibits a party from requesting a

particular position, and then later claiming that the same position is error.     See Harvis v.

Roadway Express, Inc., 923 F.2d 59, 61 (6th Cir. 1991). That did not happen here. Because the

government’s stance in this case has consistently been that no Daubert hearing was required and

that the EDR data was admissible, the doctrine does not apply. Nothing prevented the warden

from arguing that, even if the district court erred, the error either did not amount to a

constitutional violation or was harmless.

       The judgment of the district court is affirmed.




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