                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 06a0253n.06
                                Filed: April 7, 2006

                                                          No. 04-2062

                                  UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT


DWAYNE HUDSON,                                                           )
                                                                         )
                 Petitioner-Appellant,                                   )
                                                                         ) On Appeal from the United States
v.                                                                       ) District Court for the Western
                                                                         ) District of Michigan
MARY BERGHUIS,                                                           )
                                                                         )
                 Respondent-Appellee.                                            )


Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and WEBER, District Judge.*


PER CURIAM.

       Petitioner-Appellant Dwayne Hudson appeals a district court judgment denying his petition

for writ of habeas corpus. The parties have waived oral argument pursuant to Sixth Circuit Rule

34(j). Upon review, this panel unanimously agrees that oral argument is unnecessary. Fed. R. App.

P. 34(a).

                                                                  I.

       In denying Hudson’s habeas petition, the district court adopted the magistrate judge’s report

and recommendation, which set forth findings of fact consistent with those of the state appellate

court and those restated below.


       *
        The Honorable Herman J. Weber, Senior United States District Judge for the Southern District of Ohio, sitting by designation.
       Hudson was convicted by a jury in the Wayne County Circuit Court of second-degree

murder, felonious driving, and operating a motor vehicle while his license was suspended or

revoked. On October 12, 2000, the trial court sentenced Hudson to imprisonment of twenty to forty

years for the murder conviction, two years for the felonious driving conviction, and up to one year

for the operating a motor vehicle with a suspended or revoked license conviction. Hudson later was

re-sentenced to imprisonment of fourteen to twenty-five years for the second-degree murder

conviction.

       The state prosecution arose from an April 27, 1999, car accident in Detroit. A car occupied

by Hudson and another black male ran a red light and struck a second car occupied by Thomas and

Carole Larimore. Mr. Larimore sustained serious injuries and Mrs. Larimore was killed in the

accident. The accident followed police pursuit of the car occupied by the two men. The prosecution

conceded that Hudson was in the passenger seat of the car when it first was stopped by police, but

maintained that Hudson changed places with the driver sometime between the initial stop by the

police and the fatal accident. The defense theory was essentially that Hudson was always the

passenger, not the driver of the car that caused the accident.

       Thomas Larimore testified that at about 8:00 p.m. on April 27, 1999, he and his wife, Carole

Larimore, were driving east on Seven Mile Road toward Berg Road. Mr. Larimore was driving their

Crown Victoria and Mrs. Larimore was in the front passenger seat. As Mr. Larimore drove through

a green light at the intersection at Seven Mile and Berg, another vehicle ran the light and broadsided

the Larimore’s car on the passenger side. Just before the impact, Mr. Larimore saw police cars in

the intersection. Mr. Larimore began to brake, but it was too late to prevent him from entering the

intersection. The vehicle that struck the Larimores was traveling at a high rate of speed and


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launched them across the intersection into a utility pole. Mr. Larimore did not see the vehicle that

struck them. Immediately after the accident, Mr. Larimore could see Mrs. Larimore lying outside

the passenger door. Mr. Larimore spent ten days at Grace Hospital, where he was treated for

fractured ribs, a bruised heart, a bruised liver, a lacerated spleen, and cuts and bruises. Mrs.

Larimore died instantly from multiple injuries sustained in the car accident. The medical examiner

described Mrs. Larimore’s injuries as “high velocity” or “high impact.”

       Stephen Rice testified that he was washing his car at a car wash at the corner of Seven Mile

and Berg when the collision occurred. When he heard the impact, Rice looked up and saw two cars,

airborne, coming toward him. Rice believed that the cars involved were a gray Oldsmobile and a

burgundy Crown Victoria. The Oldsmobile landed in the lot of the car wash and the Crown Victoria

came to rest in the street by the corner. Rice saw an individual climb out of the passenger window

of the Oldsmobile and run eastbound on Seven Mile toward the last bay of the car wash. A short

time later, Rice heard the car wash patron in the last bay yelling, “He stole my car, he has my child.”

Rice could see that there was another person in the Oldsmobile, but did not get a good look at the

person because there were several police officers around the car.

       Ivan Belew, a Detroit police officer, testified that at about 8:00 p.m. on April 27, 2000, he

responded to a call concerning a person with a weapon in Rouge Park. Belew and his partner were

driving an unmarked car. The officers turned on their emergency light and siren in an attempt to pull

over a four-door sedan that looked like an Oldsmobile or “something like that.” Belew got out of

his vehicle and approached the passenger side of the car. When he got to the rear door on the

passenger side, Belew saw a light-complexioned black male in the front passenger seat of the

vehicle, whom he identified as Hudson. Belew saw one other person in the driver’s seat, whom he

described as a dark-complexioned man wearing a skull cap. Belew saw Hudson throw something



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that looked like a gun into the glove box. After that, the vehicle sped off.

       Officer Belew testified that he and his partner followed the vehicle onto Plymouth Road and

then northbound on Evergreen. In order to keep the car in their sight, the officers were traveling 40

to 60 miles per hour in a residential neighborhood with a 25 mph speed limit. After the car turned

westbound on Eaton, Officer Belew and his partner were instructed to give up their high-speed

pursuit for safety reasons. Up to that point, the officer had never lost sight of the car since the

pursuit began. Other units continued to monitor the direction of the car at normal speeds, without

the use of lights or sirens. Officer Belew and his partner saw the vehicle three or four minutes later

at the intersection of Seven Mile and Berg, after it was involved in the accident. During the interim,

the car was out of their sight. Belew and his partner continued through the intersection when they

heard over the radio that one of the suspects got into another vehicle.

       Two marked police units in the area assisted in monitoring the vehicle after the initial speed

pursuit was terminated. Officer Michael Benton testified that he and his partner, Jeremy Rule,

observed a car fitting the description given by Officer Belew in the area of Lahser and Five Mile,

heading westbound on Five Mile. Benton could see that there were two black males in the car.

After the officers saw the car at Lahser and Five Mile, they lost sight of the car for a period of time.

The officers did not chase the vehicle, but continued to follow at a distance, maintaining a normal

speed in anticipation that the occupants would stop the car and attempt to flee on foot. Because the

officers were trying to conceal themselves from the occupants of the car, there were many short

periods of time when the officers could not see the car. The officers eventually lost sight of the car

and did not see it again until after it was involved in the accident at Berg and Seven Mile. Officer

Benton observed Hudson in the driver’s seat of the car, trapped behind the steering wheel. Hudson

was conscious, but disoriented from the accident. Benton observed a crack in the driver’s side of



                                                   5
the windshield. The fire department removed Hudson from the car and he was taken to the hospital.

       Officer Brian Boykin testified that he and his partner, Jeffrey Williams, observed the

suspects’ car heading westbound on Grand River. The officers were about four blocks behind the

car when it turned north off Grand River onto Berg. Officer Benton’s unit was in front of Officer

Boykin’s unit on Grand River, but turned one block east on Beaverland. Officers Boykin and

Williams continued to follow the car north on Berg at a normal rate of speed. The two police units

met again at the intersection of Curtis and Berg and Officer Benton’s unit proceeded first onto Berg.

After the accident, Officer Boykin observed a light-complexioned black male trapped behind the

steering wheel.

       Police Sergeant Dale Greenleaf and Officer Elmer McFadden testified regarding their

investigation of the accident. Both vehicles involved in the accident sustained heavy damage. The

driver’s door of the gray Buick was crushed so that it would not open, the windshield was heavily

damaged, and the dashboard was pushed back and downward toward the driver’s seat. McFadden

testified that the gray Buick involved in the accident was registered to and insured by Hudson. At

the time of the accident, Hudson’s driver’s license was suspended. McFadden testified that he was

unable to obtain the report of the private EMS unit that transported Hudson to the hospital.

According to McFadden, Hudson’s car was impounded and McFadden had placed a hold on it so

that it would not be destroyed, but the car could not be located at the time of trial.

       McFadden testified that he requested and obtained a tape of the police radio dispatch during

the relevant time period. McFadden did not know how the tape was prepared or whether it had been

edited. The prosecutor objected to the admission of the tape on the grounds that the transmissions

ran together in a way that could mislead the jury. After listening to the tape outside the presence of

the jury, the trial court overruled the prosecutor’s objection, but informed the jury that the tape had



                                                  6
been edited. Thereafter, the tape was played for the jury.

       After the close of proofs, the defense moved to dismiss on the ground that the prosecutor

failed to produce complete and accurate discovery. Defense counsel specifically argued that the

prosecutor failed to (1) provide a complete, unedited transcript or copy of the police dispatch tape;

(2) provide a copy of the report of the EMS that transported Hudson to the hospital; and (3) preserve

the subject vehicle for inspection. With regard to the dispatch tape, defense counsel argued that an

unedited tape would have shown that there was a continuous chase such that the vehicle was not out

of sight long enough for the driver and passenger to change places. Defense counsel further argued

that the EMS report would have indicated Hudson’s actual location in the vehicle. The hospital

records refer to EMS bringing in an “unrestrained passenger.” With regard to the vehicle itself,

defense counsel argued that Hudson did not have any head injuries that would have been consistent

with the damage to the front windshield. Because the vehicle could not be located at the time of

trial, the defense investigator was unable to examine the windshield for blood or other evidence that

might show that Hudson was not the driver. The trial court concluded that there was no due process

violation and denied the motion.

       At the conclusion of trial on September 15, 2000, the jury found Hudson guilty as charged

of second-degree murder, felonious driving, and operating a motor vehicle while license suspended

or revoked.

       Hudson’s direct appeal set forth four issues, including the two later raised in his habeas corpus

petition. The Michigan Court of Appeals remanded his case for re-sentencing on the second-degree

murder conviction, but affirmed his convictions. The Michigan Supreme Court denied Hudson’s

application for leave to appeal to that court. The claims preserved and presented for purposes of




                                                  7
Hudson’s habeas petition1 are (1) that he was denied his constitutional rights to due process and to

a fair trial by the prosecutor’s failure to preserve and disclose certain potentially exculpatory evidence

that Hudson requested, and (2) that he was denied his constitutional right to a fair trial by the trial

court’s refusal to provide a requested jury instruction regarding the significance of flight.

                                                          II.

         In reviewing a district court’s denial of a petition for a writ of habeas corpus under 28 U.S.C.

§ 2254, this court considers all legal conclusions de novo. Armstrong v. Morgan, 372 F.3d 778, 781

(6th Cir.), cert. denied, 543 U.S. 982 (2004). A federal court may grant a habeas corpus petition only

when it concludes that the state adjudication of the federal 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)(1), or "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)(2). A state court decision is “contrary

to” Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by

[the Supreme] Court on a question of law,” or “if the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives at” an opposite result.

Williams v. Taylor, 529 U.S. 362, 405 (2000). In analyzing a state court decision under that standard,

this court “may only look to Supreme Court precedent as of the time of the state court’s decision.”

Fowler v. Collins, 253 F.3d 244, 249 (6th Cir. 2001)(citing Williams, 529 U.S. at 411).




           1
            Hudson’s final brief identifies his stated issues as violations of both the United States and Michigan
constitutions. Federal habeas review, however, is limited to claimed violations “of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a). As such, habeas relief is not available for perceived errors of state law,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and this court will not address those alleged errors.

                                                           8
                                                  III.

        Hudson’s final brief does not challenge in any material respect the findings of fact as stated

above, and our de novo review confirms that Hudson’s conviction was not premised on an

unreasonable determination of the facts. Turning our analysis to the legal issues before us, we are

persuaded that the district court correctly applied the law as it relates to both issues raised by

Hudson’s petition.

        Regarding his claims stemming from the prosecution’s failure to produce potentially

exculpatory evidence, Hudson is unable to demonstrate that any such failure constituted a federal

constitutional violation. Under existing Supreme Court precedent, “suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady

v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court has identified three components of a true

Brady violation, as follows: “The evidence at issue must be favorable to the accused, either because

it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,

281-82 (1999). Prejudice is established by showing that “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have been different.”

Id. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A “different result” follows,

however, when dealing with the failure of a state “to preserve evidentiary material of which no more

can be said than that it could have been subjected to tests, the results of which might have exonerated

the defendant.” Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Failure to preserve such “potentially

useful evidence” does not violate the Due Process Clause “unless a criminal defendant can show bad

faith on the part of the police.” Id. at 58.


                                                   9
       Applying this well-established law to the undisputed facts of this case, we conclude that no

federal constitutional violation occurred. With respect to the missing EMS report, the record reflects

that such evidence would have been prepared by the private EMS which transported Hudson to the

hospital, would not have been in the State’s possession or control, and thus would have been equally

accessible by Hudson directly. As the State of Michigan did not “suppress” such evidence, Hudson

cannot establish the second component of a Brady violation. See Strickler, 527 U.S. at 281-82.

Similarly, although Hudson contends that the missing vehicle could have been subjected to testing

that might have produced exculpatory evidence suggesting a different driver, Hudson has not shown

“bad faith on the part of the police” in failing to produce the car at trial. See Youngblood, 488 U.S.

at 57-58. The State’s failure to preserve that “potentially useful evidence” therefore also does not

constitute a federal due process violation. Id.

       We now turn to the final portion of Hudson’s first claim – the absence of a complete, unedited

transcript or copy of the police dispatch tape. We again conclude that no federal constitutional

violation occurred.

       The Michigan court analyzed this claim under the framework set forth in People v. Lester,

591 N.W.2d 267 (Mich. App. 1999). Lester, in turn, relies on Brady. Id. at 276. The claim,

however, is not a Brady claim. Hudson makes no allegation that the prosecutor had access to, but

failed to produce, an unedited copy of the dispatch tape; therefore, Brady is not implicated. Instead,

Hudson complains of the police department’s failure to preserve an unedited copy. As a result, his

claim must be analyzed under Youngblood.




                                                  10
       Under Youngblood, Hudson must show that the police acted in bad faith by failing to preserve

the unedited tape. 488 U.S. at 58. Hudson has not borne his burden. The record does not reflect who

edited the tape, how it was edited, or why it was edited. In fact, the record contains no definitive

statement by any witness that the tape was edited at all. Rather, the parties rely on the state trial

court’s observation that “it’s obvious to the court, from the whirling sounds that are representative

in the tape, that the tape has in fact been edited.” This statement alone is not sufficient to satisfy

Hudson’s evidentiary burden. Because Hudson has not shown bad faith on the part of the police, we

cannot grant him relief on the basis of the state trial court’s admission of the tape.

       Furthermore, Hudson has not demonstrated prejudice as a result of the tape’s admission, and,

therefore, even if we viewed this claim as a Brady claim, we would find it without merit.

Significantly, it was the prosecution rather than the defense that opposed the introduction of the tape

at trial, arguing that the shortened time frame represented on an edited tape would create the

impression that Hudson had less opportunity than what actually transpired to move from the

passenger’s seat to the driver’s seat. In light of the possibility that the tape, if edited, created an

impression more favorable to Hudson than an unedited version would have, it remains arguable

whether an unedited tape would have had any exculpatory value. Even assuming that an unedited

tape might have had some exculpatory effect, however, we do not find it reasonably probable that

“the result of the proceeding would have been different” had the State produced such a tape. See

Strickler, 527 U.S. at 280. The jury heard testimony that Hudson originally was seen in the passenger

seat, and that the vehicle was observed or monitored by police for most of the few minutes that

elapsed between that observation and the fatal accident. Even an unedited version of the tape that

confirmed the short time span would have been cumulative of testimony already presented, in

contrast to evidence that Hudson was found wedged behind the steering wheel after the accident,


                                                  11
while the other occupant was able to flee through the passenger window. Absent prejudice, Hudson

cannot establish a Brady violation.

          Hudson likewise is unable to demonstrate any federal constitutional violation arising from the

trial court’s failure to give the requested jury instruction on flight. A claim that a trial court failed

to give a jury instruction is not cognizable on federal habeas review unless the omission “so infected

the entire trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145,

156-57 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The record demonstrates that

although the trial judge declined to give the requested instruction, the jury nonetheless heard

testimony about how the vehicle’s second occupant fled from the scene following the accident.

Hudson’s trial counsel also argued to the jury that such flight indicated that individual’s guilt as the

driver of the vehicle. Even the instruction requested by Hudson would have given the jury equivocal

guidance at best, suggesting only that flight could be the product of “panic, mistake, or fear,” or

“consciousness of guilt.” Because the jury was permitted to consider both evidence and argument

supporting the defense theory that the fleeing occupant had been the driver of the car, the possibility

that the jury could have reached a different verdict if a flight instruction also had been give is “too

speculative to justify the conclusion that constitutional error was committed.” Henderson, 431 U.S.

at 157.

          We therefore affirm the district court judgment denying Hudson’s petition for writ of habeas

corpus.




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