Mario Elizondo v. CATHERINE BAUMAN, Warden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0012n.06
No. 15-1831
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARIO ELIZONDO,
Petitioner - Appellant
v.
CATHERINE BAUMAN, Warden,
Respondent - Appellee
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
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.

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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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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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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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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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