Coy v. Renico (414 F. Supp. 2d 744, 2006)

OPINION AND ORDER DENYING PETITIONER’S APPLICATION FOR THE WRIT OF HABEAS CORPUS

ROSEN, District Judge.

Table of Contents

I.BACKGROUND...........................................................747

II.LEGAL STANDARD......................................................754

III.DISCUSSION..................................... 756

A. DNA Statistical Evidence Claim (Claim I) ....... 756

1. Clearly Established Law.................... 756

2. The Davis/Frye Standard................... 756

3. The State Court Proceedings................ 757

a. The First Trial and Appeal.............. 757

b. The Second Trial and Appeal............ 758

4. Analysis.................................. 761

B. Hearsay Evidence Claim (Claim II).............. 763

1. Admission of the Evidence under Rule 803(3) . 763

2. Confrontation Clause....................... 764

a. Clearly Established Law................ 764

b. Analysis.............................. 765

c. Impact of Crawford v. Washington....... 772

C. Right to Present Defense Claims (Claims III & IV) 774

1. Clearly Established Law.................... 774

2. Jordan McKee Testimony (Claim III)........ 775

3. DNA Testing of Darnell Riddle (Claim IV) ... 776

D. Sentencing Claim (Claim V).................... 778

1. Clearly Established Law.................... 778

2. Analysis.................................. 780

IV.ORDER 780

I. BACKGROUND

Petitioner Laurence Deane Coy, II, is a state prisoner, currently confined at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner was charged in state court with first degree murder, Mich. Comp. Laws § 750.316. On December 29, 1998, petitioner was convicted of the lesser offense of second degree murder, Mich. Comp. Laws § 750.317, following a jury trial in the Calhoun County Circuit Court. On January 29, 1999, petitioner was sentenced to a term of 40-60 years’ imprisonment. Petitioner appealed as of right to the Michigan Court of Appeals. On- November 17, 2000, the Michigan Court of Appeals reversed petitioner’s conviction, concluding that the trial court erred in admitting DNA evidence without accompanying statistical evidence regarding the likelihood of a match between the sample and petitioner. See People v. Coy, 243 Mich. App. 283, 286-314, 620 N.W.2d 888, 891-904(2000) (“Coy I”).

Prior to retrial, an evidentiary hearing was held by the trial court to determine the admissibility of statistical evidence concerning the DNA analysis. The trial court ruled the evidence admissible. The extensive trial testimony leading to petitioner’s conviction was accurately summarized in petitioner’s brief on appeal to the Michigan Court of Appeals:

The prosecution’s theory in the case was that Mr. Coy was involved in a sexual relationship with the decedent, Ms. Davidson, and visited her at the apartment she shared with Christina McKee on the night of January 4, 1998. Ms. McKee left for work early on that evening. She was permitted to testify, over a defense hearsay objection, that prior to her leaving for work Ms. Davidson asked her to page Mr. Coy, as there was no working phone in the apartment, and remind him that he was supposed to come to the apartment that night. (T, 8/8 II, 96-98). She indicated that she was aware of the relationship between Ms. Davidson and Mr. Coy. Ms. McKee acknowledged that she did not attempt to call or page Mr. Coy as requested, and did not speak to him that evening. (T, 8/8 II, 99,163).

Ms. McKee’s two young sons, Joshua and Jordan, along with Ms. Davidson’s son, were at the apartment with Ms. Davidson when Ms. McKee left for work. She testified that while at work, she was called by her brother, Darnell Riddle, and asked by him to take him shopping after they both got off work (he worked at a different location) for sheets for his new bed. (T, 8/8 II, 100). Ms. McKee testified she initially refused to do so, since she did not get off work until very late at night, but later decided to take him to a store and picked him up at his residence, and then went to a store. (T, 8/8 II, 102-105). A store surveillance video was introduced at trial showing Ms. McKee and Mr. Riddle at the store at approximately 2:45 am.

Ms. McKee testified that when she returned home to the apartment, at approximately 3:30 am on the 5th, she became concerned because the front door to the apartment was unlocked. (T, 8/8 II, 108). She stated she went inside and first checked on the children, who were fine, and then went to Ms. Davidson’s bedroom. There she saw Ms. Davidson’s body lying on the floor, with a considerable amount of blood on the body and in parts of the room. (T, 8/8 II, 112-116). Ms. McKee then took the children from the apartment and had a neighbor call the police.

Ms. McKee testified that when she got home that night she noticed a set of headphones connected to the stereo, and indicated that the headphones were ones Mr. Coy had brought to the apartment because neighbors had complained about loud music. (T, 8/8 II, 110-111). She also testified that there was an ashtray containing the remains of a marijuana cigarette, evidence of incense having been burned, and ashtrays with Newport and Newport Light cigarette butts. (T, 8/8 II, 120-128, 174-176). According to McKee, none of these items were there when she left for work. She asserted that Mr. Coy would smoke marijuana at the apartment, and had previously burned incense there (T, 8/8 II, 123-127). She agreed, however, that she told the police that neither Mr. Coy nor Ms. Davidson smoked cigarettes. (T, 8/9 I, 10-11). Ms. McKee later acknowledged that after the death she did use Ms. Davidson’s identification to attempt to get cable service. (T, 8/9 I, 4).

Ms. McKee stated that when she first spoke to the police, she gave them the names of Andre Settler, a maintenance man at the apartment complex, and Kareem Thrash (who was the father of Ms. Davidson’s child), along with several other men, as possible suspects in the case, but did not mention Mr. Coy. (T, 8/8/ II, 138; 8/9 I, 14-16). She indicated that Mr. Settler had come to their apartment several times without notice or being invited, that Ms. Davidson had referred to him as the “maintenance man from Hell,” and that he had gotten upset at one time because Ms. Davidson was with Mr. Coy. (T, 8/8 II, 188-189). Ms. McKee testified that during the morning of the 5th, after she spoke to the police, she went to see Mr. Coy where he was working and told him of Ms. Davidson’s death. According to the witness, when she asked him if he had come over to the apartment the prior night, he stated that he had not and that he had been stranded at his sister’s house. (T, 8/8 II, 135-136). However, during the cross-examination when shown a record of her interview with the police on January 12, she acknowledged that she only assumed he had been at his sister’s house, and admitted he had not said that to her. (T, 8/9 I, 20). Ms. McKee testified she did not recall seeing any cuts on Mr. Coy’s hands, or bandages, when she spoke to him on the 5th. (T, 8/8 II, 164).

The medical examiner testified that Ms. Davidson died from several stab wounds to the back. (T, 8/14 II, 76-77). The body showed evidence of numerous stab wounds, some of which were characterized by the medical examiner as defensive wounds, and evidence of bruising on the face. There was no physical evidence of any forced sexual penetration. (T, 8/14 II, 97-98).. When shown a knife blade that was found by the police on Ms. Davidson’s bed, the doctor was of the opinion that this knife could have caused the stab wounds. (T, 8/14 II, 58-59). The toxicology report on the body showed evidence that Ms. Davidson had recently ingested marijuana. (T, 8/14 II, 98-100). He could not determine the time of death to any degree of certainty. (T, 8/14 II, 109-110).

The prosecution presented a great deal of testimony from police officers and emergency personnel who responded to the apartment. There was no evidence of any forced entry into the apartment. A sliding door to a balcony was found open, but no footprints or other evidence was found either outside the balcony or on the porch indicating that someone had entered the apartment

through that door (it was raining and the ground was wet that night). (T, 8/16 I, 28-30). A knife block containing a set of steak knifes very similar to the handleless blade found on the bed was located in the kitchen, with some of the slots for knives being empty. Samples of blood stains were collected from various items in the apartment, most significantly from the knife blade on the bed and from a door handle to Ms. Davidson’s bedroom. Those samples were submitted for analysis. No fingerprints identifiable as coming from Mr. Coy were found anywhere in the apartment. (T, 8/10 II, 27, 34-34). The police located what they believed were blood stains on the outside door to the apartment building. Later, they searched through Ms. Davidson’s car, which Ms. McKee had been driving on the night of the offense, and saw indications of possible blood stains on one of the floor mats of the car. All of the car’s floor mats had been put into the trunk of the car. Neither the marijuana cigarette butt or the regular cigarette butts were ever tested for the possibility of DNA from saliva. The police never sought a warrant to search Mr. Coy’s residence for clothing he would have been wearing that night to see if it had any blood stains.

The police were told by Ms. McKee of potential suspects in the case, including a man named Andre Settler, who lived in a different building in the apartment complex. (T, 8/17, 21). When the police went to check on him that night, they noticed what appeared to be a blood stain on the outside of the building, but did not collect any of that stain for analysis due to the officer’s opinion that the stain was too dry to have been put on the building that night. (T, 8/17, 21-22). Mr. Settler and his girlfriend were spoken to by the police that night, their apartment was searched, and marijuana was located hidden in his apartment, but he was not arrested. (T, 8/17, 22-24, 50-51). In the apartment the police found cigarettes of the same brands that were found in the ashtray at Ms. Davidson’s apartment. (T, 8/17, 52).

During the autopsy the medical examiner took slides from Ms. Davidson’s vagina which later were found to contain sperm cells. The expert witnesses differed on how long such cells could have survived within Ms. Davidson in the condition they were found, with the medical examiner testifying] he had found such cells in a body after 19 to 20 days. (T, 8/14 II, 107-108).

The prosecution was permitted to call Jordan and Joshua McKee as witnesses at the trial. Neither boy had testified at the initial trial. Prior to the selection of the jury, the defense moved for an adjournment, or in the alternative for an order barring testimony from Jordan, on the grounds that the defense had been unable to locate a witness named Pam Perry to testify as an impeachment witness. (T, 8/7, 3-6). According to the defense, Ms. Perry had been a neighbor of Ms. Davidson and Ms. McKee in 1998, and had overheard Jordan, on the night of the offense, tell family members that his “daddy” could have committed the offense. (T, 8/7, 16-17). Ms. Perry also did not testify at the initial trial, as defense counsel pointed out her only relevant testimony would be to this statement and since Jordan, who was four years old in 1998, did not testify at that trial, there was no grounds to call for her potential impeachment. After taking the request to adjourn under advisement, and ordering the prosecution to assist the defense in seeking to locate and subpoena Ms. Perry for this trial, and at several points hearing of the efforts made to locate here, Judge Sindt denied the defense motions either to strike Jordan’s testimony or grant a mistrial. (T, 8/7, 21-25, 45-46; 8/8 II, 3-4; 8/9 II, 25-26; 8/22, 3-13).

Jordan testified that he heard and saw a man come to the apartment that night, and heard Ms. Davidson screaming. According to Jordan, he could identify the man as Mr. Coy, primarily due to the black coat with a circle on the back the man was wearing, which he said was the same jacket Mr. Coy had been wearing during a visit to the apartment earlier that day. (T 8/9 II, 33-36). Jordan also testified that the man arrived at the apartment at around 8:00 pm, just as he was going to bed. (T, 8/9 II, 39). He agreed that he had not seen anyone’s face that night. (T, 8/9 II, 43). Joshua, who is four years older than Jordan, also testified at the retrial, but had no real memory of that night, and did not make any identification. (T, 8/16 II, 67-72).

A police detective later testified that while Ms. McKee initially gave her a list of possible suspects in the case, including Mr. Settler and Kareem Thrash, who is the father of Ms. Davidson’s child, she did not place Mr. Coy on that list and never told the officer that her son had identified Mr. Coy as being in the apartment that night. (T, 8/17, 61, 69-70). Ms. [McKee] first mentioned Mr. Coy as a suspect several days after the incident. When Jordan was interviewed by the police in January, 1998, he did not identify Mr. Coy has having been in the apartment. (T, 8/17, 69).

The DNA comparison testing evidence came in during the testimony of Megan Clement from Lab Corp. The sperm cells taken from Ms. Davidson were found to be consistent with the profile of Mr. Coy’s DNA, with the witness indicating that there was a 1 in 543,000,000 chance of an African-American male being selected at random and matching this profile. (T, 8/15 I, 13-19). In regards to the mixed samples found on the knife, the witness testified that neither Ms. Davidson nor Mr. Coy could be excluded as possible sources of the mixed DNA in these samples, and that there was a 1 in 1210 chance in the African-American population that a random person would be included within the group who could have contributed a portion of the DNA, that this meant that 99.17 percent of the African-American population would be excluded, and that the ratio on the likelihood that the mixed sample came from Ms. Davidson and Mr. Coy as compared to Ms. Davidson and a random individual was 164,000 times, based on the African-American population. (T, 8/15 I, 26-35, 44-50). As to the mixed sample from the door knob, the results were based on only a partial profile, as that sample did not have sufficiently reportable results on the same number of loci on the DNA. (T, 8/15 I, 38-39). For that sample, the probability of inclusion as to the African-American population was 1 in 319, and the likelihood ratio was 3100 times (T, 8/15 I, 42-48). Ms. Clement testified that comparison of the known samples obtained from Christina McKee, Andre Settler, and Kareem Thrash excluded all of the them [sic] as possible sources of the mixed DNA samples. (T, 8/15 I, 53, 58-63). The witness acknowledged that it could not be proven that the DNA alleged to be that of Mr. Coy was deposited by way of his blood, as compared to any other source of his DNA (skin cells, saliva, etc.). (T, 8/15 II, 9).

Evidence was presented that when Mr. Coy was first questioned by the police on the afternoon of January 7, 1998, he had two cuts on his right hand. The prosecution asserted to the jury that Mr. Coy cut himself with the knife blade while stabbing Ms. Davidson, resulting in his blood as well as hers being on the knife and door knob and explaining his DNA in the mixed sample on those items. The prosecution presented testimony form Dr. Thomas Maier, who treated Mr. Coy for the cuts to his hand at the emergency room on January 6, at around 5:30 pm. (T, 8/16 I, 9). Mr. Coy told the doctor he had cut his hand on some broken glass. (T, 8/16 I, 11). Dr. Maier testified that the cuts could have been made with a knife, but also could have been caused by any sharp object, including broken glass. (T, 8/16,12, 16). He further testified that the cuts appeared to him to be fresh, that he probably would not have sutured the wounds, which he did, had they appeared to him to have been more than 12 hours old, and acknowledged at the first trial stating they appeared to be no older than 24 hours. (T, 8/16 1,12,15-17).

The principal defense theory in the case was alibi. Mr. Coy is the father of two children with a woman named Camille Napilot, who on that date lived in a different building in the same apartment complex as Ms. Davidson. He testified that he commonly would babysit with his children while their mother was at work. On Sunday, January 4, he went to Ms. Napilot’s apartment around 11:00 in the morning to babysit while she worked. (T, 8/21 I, 109). He took the children downstairs to Ms. Napilot’s parents’ apartment for most of the day, watching football games with her father. Ms. Na-pilot arrived home after work, and Defendant stayed briefly at her apartment talking with her until he left at around 9:45 pm to walk to where he was then living, which was several miles away. (T, 8/211,109-111).

Mr. Coy admitted that he had been in a sexual relationship with Ms. Davidson, and would at times stop by her apartment after babysitting for his children. He stated that if the lights were on in her apartment when he left Ms. Napilot’s, he would on occasion stop by to see Ms. Davidson. (T, 8/21 I, 111-113, 114). On January 4, however, as he walked through the parking lot he looked up at Ms. Davidson’s apartment, and seeing that the lights were off proceeded on to go home, arriving home around 10:30 or 10:45 pm. (T, 8/21 I, 112-113). He denied he had any prior intent to stop in to see Ms. Davidson after he was through babysitting on the 4th. (T, 8/21 I, 112). He testified he spoke to the woman with whom he was then living, Melissa Lewis, and later went to see her mother, and then they went to sleep. (T, 8/21 I, 117-118). He and Ms. Lewis woke up at around 3:00 am to go to work. They both worked at the Franklin Neighborhood Center. (T, 8/21 I, 119). While at work that day part of his job was to wash dishes using bleach. He denied that his hand was cut when he was at work on the 4th, stating that had he had the cuts it would have been very uncomfortable to do his job given the use of bleach.

Mr. Coy testified he first heard about Ms. Davidson’s death the next day, when Ms. McKee told him. (T, 8/21 I, 122). He agreed he had been in Ms. Davidson’s apartment and in her bedroom in the past, and that he had probably touched many things in the apartment, including her silverware. (T, 8/21 I, 119-120). He denied that he smokes cigarettes. (T, 8/211,120).

On the 6th, he had an appointment with his probation officer at around 3:00 pm. While at that appointment he had to submit a urine test for the presence of controlled substances. (T, 8/21 I, 123-126).

He testified that after his appointment he returned home, and was cleaning out an old car of his when he cut his hand on some broken glass that was in a trash barrel he was using. (T, 8/21 I, 126-128). He got Ms. Lewis’s sister to drive him to the emergency room for treatment of these cuts, as he did not have a working car.

Mr. Coy admitted that when he was interviewed by the police he told them he had only engaged in oral sex with Ms. Davidson, rather than any vaginal intercourse, explaining that he did not want either Ms. Lewis or Ms. Napilot to discover that he had been having intercourse with Ms. Davidson. (T, 8/21 I, 115-116). He stated he had last had intercourse with Ms. Davidson on the Thursday of that week. (T, 8/21 I, 115). He had been to the apartment on Friday, and admitted people were smoking marijuana at the apartment that night, but denied he had engaged in any of the smoking. (T, 8/21 I, 117). He denied owning a black coat with a circle on the back. (T, 8/21 1,132-133).

Mr. Coy denied killing Ms. Davidson, or having any knowledge of who committed the offense. (T, 8/21 I, 109). When he was interviewed by the police on January 7, he volunteered to give them a blood sample if they wanted, and they checked him for any scratches or bruises on his body, finding none. (T, 8/21 I, 131-132,135).

Mr. Coy’s testimony was corroborated by several defense witnesses. Ms. Na-pilot and her parents, Richard and Leah Holloway, testified that he was babysitting on the 4th, that he was at her parent’s [sic] apartment until around 9:45 pm, and that he then left to walk home. (T, 8/21 I, 12-22, 37-41, 43-45). Ms. Lewis testified that he arrived home around 10:45 pm, went with her briefly to visit her mother, and they then went to bed. (T, 8/21 I, 50-53). She stated Defendant was acting normally when he got home that night, and did not have any cuts on his hands. (T, 8/21 I, 51). Ms. Lewis stated Defendant was wearing a red and white coat that day. (T, 8/21 I, 63). They woke up at 3:00 am to go to their jobs at the Franklin Center. (T, 8/211, 53).

Ms. Lewis testified that her brother, Terry Lewis, is the father of Jordan McKee. (T, 8/21 I, 59). She indicated that the day after Ms. Davidson’s death she spoke with Jordan, and he told her that a man who “stayed with my mom” killed Ms. Davidson, and that the man had covered himself up at the time. (T, 8/21 I, 60). She stated that Jordan could not give her any name for that man. (T, 8/211, 60).

Steven Blanchard, Mr. Coy’s probation officer, testified that at the appointment on the 6th he did not see any cuts on Mr. Coy’s hands, and that his urine drop test for controlled substances was clean. (T, 8/17, 4-6). He stated that this test would have picked up the presence of marijuana afterproducts in Mr. Coy’s urine had he smoked marijuana on the 4th. (T, 8/17, 6).

Pam Palmer, Mr. Coy’s supervisor at his job, testified that he did work on the 5th, did wash dishes, and was not wearing any gloves. She stated she did not see any cuts on his hand, nor did she believe he could have washed the dishes without significant pain had his hand been cut. (T,. 8/15, 17-21). Similar testimony was presented from a co-worker, Wendelle White.

Rosie and ■ Elizabeth Lewis testified they were in the area when Mr. Coy cut his hand on the broken glass, and saw that the wounds were bleeding at that time. (T, 8/21 I, 88-91, 95-96). Rosie Lewis drove him to [the] hospital after they wrapped his hand in a towel to stop the flow of blood. (T, 8/211, 90).

In addition to these witnesses, the defense presented testimony from Emily Whitehead, Darnell Riddle’s parole officer, who indicated that Mr. Riddle was then on parole from a conviction for assault with intent to do great bodily harm, that hd tested positive for the use of marijuana on January 13,' 1998, and that he later absconded from his parole. (T, 8/211, 81-83).

The jury deliberated in the case over five days (August 22, 23, 24, 27, 28). They returned to court on the 27th, indicating they were deadlocked. Judge Sindt reinstructed the jury on the process of deliberations, and ordered them to attempt to reach a verdict. (T, 8/27, 3-5). The jury returned the guilty verdict on the included offense of voluntary manslaughter at 4:49 pm. on the 28th. (T8/28,3). \ ■

Def.-Appellant’s Br. on Appeal, in People v. Coy, No. 238112 (Mich.Ct.App.), at 3-14.

On August 28, 2001, petitioner was convicted by the jury of the lesser included offense of voluntary manslaughter, Mich. Comp. Laws § 750.321. On October 8, 2001, petitioner was sentenced as a third habitual offender, Mich. Comp. Laws § 769.11, to a term of 20-30 years’ imprisonment.

Following his conviction, petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:

I. THE TRIAL COURT REVERSIBLY ERRED IN OVERRULING THE DEFENSE MOTION TO SUPPRESS THE RESULTS OF DNA TESTING OF THE MIXED SAMPLES, AS THE STATISTICAL ANALYSIS EVIDENCE WAS NOT SHOWN TO BE SUFFICIENTLY RELIABLE TO PRESENT TO THE JURY.

II. DEFENDANT WAS DENIED A FAIR TRIAL WHERE THE TRIAL COURT, OVER A TIMELY DEFENSE OBJECTION, PERMITTED CHRISTINA McKEE TO TESTIFY TO AN ALLEGED OUT-OF-COURT STATEMENT OF JENNIFER DAVIDSON UNDER THE STATE OF MIND EXCEPTION OF MRE 803(3), WHERE MS. DAVIDSON’S STATE OF MIND WAS NOT RELEVANT AND WHERE THE PROSECUTOR THEN USED THE STATEMENT AS SUBSTANTIVE PROOF OF MR. COY’S INTENT.

III. THE TRIAL COURT REVERSIBLY ERRED IN OVERRULING THE DEFENSE MOTIONS TO EITHER BAR THE TESTIMONY OF JORDAN McKEE OR FOR MISTRIAL WHERE THE DEFENSE WAS UNABLE TO LOCATE A WITNESS FOR THE RETRIAL THAT COULD HAVE TESTIFIED TO A PRIOR INCONSISTENT STATEMENT FROM JORDAN McKEE.

IV. THE TRIAL COURT REVERSIBLY ERRED IN DENYING THE DEFENSE MOTION TO ADJOURN THE TRIAL TO ALLOW FOR THE COMPLETION OF DNA TESTING CONCERNING DARNELL RIDDLE.

V. DEFENDANT IS ENTITLED TO BE RESENTENCED AS HIS SENTENCE OF TWENTY TO THIRTY YEARS FOR VOLUNTARY MANSLAUGHTER, AS A THIRD FELONY OFFENDER, WAS DISPROPORTIONATELY SEVERE.

The court of appeals found no merit to petitioner’s claims, and affirmed his conviction and sentence. See People v. Coy, 258 Mich.App. 1, 669 N.W.2d 831 (2003) (per curiam) {“Coy II”). Petitioner, proceeding pro se, sought leave to appeal these issues to the .Michigan Supreme Court. The Supreme Court denied petitioner’s application for leave to appeal in a standard order. See People v. Coy, 469 Mich. 1029, 679 N.W.2d 65 (2004).

Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on August 13, 2004. As grounds for the writ of habeas corpus, he raises the five claims that he raised on his direct appeal. Respondent filed his answer on February 24, 2005. He contends that petitioner’s second claim is barred by petitioner’s procedural default, and that petitioner’s remaining claims do not entitle petitioner to habeas relief.

II. LEGAL STANDARD

Because petitioner’s application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing:

(d) 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).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also, Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). “A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.’ ” Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495); see also, Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Bell, 535 U.S. at 694, 122 S.Ct. 1843. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495); see also, Bell, 535 U.S. at 694, 122 S.Ct. 1843. However, “[i]n order for a federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The state court’s application must have been ‘objectively unreasonable.’ ” Wiggins, 539 U.S. at 520-21, 123 S.Ct. 2527 (citations omitted); see also, Williams, 529 U.S. at 409, 120 S.Ct. 1495.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of whether the state court’s decision comports with “clearly established federal law as determined by the Supreme Court.” Thus, “ § 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. Further, the “phrase ‘refers to the holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.’ In other words, ‘clearly established Federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495).

Although “clearly established Federal law as determined by the Supreme Court” is the benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not require citation of [Supreme Court] cases — indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the re-suit of the state-court decision contradicts them.” Early, 537 U.S. at 8, 123 S.Ct. 362; see also, Mitchell, 540 U.S. at 16, 124 S.Ct. 7. Further, although the requirements of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court’s resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n. 3 (1st Cir.2000); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D.Mich.2002) (Tar-now, J.).

III. DISCUSSION

A. DNA Statistical Evidence Claim (Claim I)

Petitioner’s first two habeas claims challenge the introduction of certain evidence at his trial. The Court concludes that petitioner is not entitled to habeas relief on these claims.

1. Clearly Established Law

Unless a violation of a state’s evidentiary rule results in the denial of fundamental fairness, an issue concerning the admissibility of evidence does not rise to the level of a constitutional violation. See Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir.1988); Davis v. Jabe, 824 F.2d 483, 487 (6th Cir.1987). “[A] federal habeas court has nothing whatsoever to do with reviewing a state court ruling on the admissibility of evidence under state law. State evidentiary law simply has no effect on [a court’s] review of the constitutionality of a trial, unless it is asserted that the state law itself violates the Constitution.” Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir.1993). As the Sixth Circuit has noted, “[e]rrors by a state court in the admission of evidence are not cognizable in habeas proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.” Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir.1994); see also, Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (federal habeas courts have no authority to interfere with perceived errors in state law unless the petitioner is denied fundamental fairness in the trial process).

In short, “[o]nly when the evidentiary ruling impinges on a specific constitutional protection or is so prejudicial that it amounts to a denial of due process may a federal court grant a habeas corpus remedy.” Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir.1999); see also, Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir.2001). Where a specific constitutional right — such as the right to confront witnesses or to present a defense — is not implicated, federal habeas relief is available only if the allegedly erroneously admitted evidence “is almost totally unreliable and ... the factfinder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings.” Barefoot v. Estelle, 463 U.S. 880, 899, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). This general rule regarding the limited cognizability of evidentiary claims on federal habeas review applies equally to claims based on the allegedly improper admission of scientific evidence. See, e.g., Norris v. Schotten, 146 F.3d 314, 335 (6th Cir.1998); Spencer v. Murray, 18 F.3d 237, 239 (4th Cir.1994); Arnold v. Wyrick, 646 F.2d 1225, 1228 (8th Cir.1981); Albanese v. McGinnis, 823 F.Supp. 521, 553 (N.D.Ill.1993).

2. The Davis/Frye Standard

Before addressing the factual and legal issues surrounding petitioner’s claim, it is appropriate to describe the standard pursuant to which the Michigan courts evaluate scientific evidence of the type at issue here. At the time of petitioner’s conviction, the Michigan courts applied the oft-used, and oft-criticized, framework established in Frye v. United States, 298 F. 1013 (D.C.Cir.1923).

In Frye, the court established what came to be known as the “general acceptance” test for determining whether new or novel scientific techniques may be admitted into evidence. The court explained:

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Frye, 293 F. at 1014 (emphasis added). Although not explicitly “adopting” the Frye standard, the Michigan Supreme Court employed a similar analysis in People v. Davis, 343 Mich. 348, 370-72, 72 N.W.2d 269, 281-82 (1955), and the Michigan courts have interpreted Davis as adopting the Frye rule. See People v. Young, 418 Mich. 1, 17-20, 340 N.W.2d 805, 812-13 (1983); People v. Haywood, 209 Mich.App. 217, 221, 530 N.W.2d 497, 499-500 (1995). Under the Davis/Frye rule, as it is known, novel scientific evidence is inadmissible unless the proponent of the evidence demonstrates that it has been generally accepted in the relevant scientific community. See Haywood, 209 Mich.App. at 221, 530 N.W.2d at 500.

3. The State Court Proceedings a. The First Trial and Appeal

At the first trial, the prosecution presented the testimony of Anita Matthews, a forensic serologist and the associate director of forensic identity testing at Laboratory Corporation of America (“Lab Corp.”). With respect to the mixed samples found on the knife and doorknob, Matthews testified that the DNA profile of the samples was consistent with the DNA having come from the victim and petitioner. See Coy I, 243 Mich.App. at 293, 620 N.W.2d at 894. However, while Matthews testified that it was possible to calculate a statistical estimate of the likelihood of finding the same DNA characteristics in another individual, she testified that “Lab Corp. performed no statistical interpretation of the results it achieved regarding the mixed DNA samples recovered from the knife blade and the doorknob because ‘our laboratory policy is we do not calculate statistical estimates for mixed samples.’” Id. at 294, 620 N.W.2d at 894.

On appeal from petitioner’s first conviction, the Michigan Court of Appeals concluded that the admission of this DNA evidence, without any accompanying statistical interpretation, amounted to plain error. The court concluded that “Matthews’ testimony regarding the consistency of defendant’s DNA with the mixed sample lifted from the knife blade and the doorknob is inadequate by itself to meaningfully inform the jury concerning the likelihood of defendant’s identity as the DNA donor.” Id. at 295, 620 N.W.2d at 895. Adopting the reasoning of the Delaware Supreme Court, the court of appeals explained that statistical likelihood evidence beyond the simple evidence of match is necessary

“because, even though two human genomes may vary at approximately three million sites, the DNA typing analysis currently employed examines only a few sites for variation in the DNA sequence. The theory is that, besides identical twins, no two individuals will have entire DNA sequences which are identical. The DNA prints which result from the current FBI procedure may not be unique since the entire DNA molecule is not analyzed. Since two unrelated individuals may have identical DNA patterns from the fragments examined in a particular analysis, the potential exists for a match to be mistakenly found. For this reason, statistical interpretation regarding the probability of a coincidental match or the likelihood that two unrelated individuals have the same DNA type is necessary.”

Id. (quoting Nelson v. State, 628 A.2d 69, 75-76 (Del.1993)). After examining the case law from other jurisdictions, the Michigan Court of Appeals concluded that the DNA evidence would not assist the trier of fact without some accompanying statistical analysis regarding the likelihood of a match, and thus was inadmissible under Rule 702. See id. at 301, 620 N.W.2d 888, 620 N.W.2d at 898. The court, however, did “emphasize that we do not now declare or delineate the appropriate articulations for expressing the extent or meaning of a potential match, but merely hold that some qualitative or quantitative interpretation must accompany evidence of the potential match.” Id. at 302, 620 N.W.2d at 899. Concluding that the plain error affected the jury’s verdict, the Michigan Court of Appeals reversed petitioner’s conviction and remanded the case for a new trial.

b. The Second Trial and Appeal

Prior to retrial, the trial court held an extensive evidentiary hearing on the admissibility of the prosecution’s statistical analyses of the mixed DNA samples found on the knife and doorknob. At the hearing, and at retrial, the prosecution’s principal scientific witness was Megan Clement, a Technical Director at Lab Corp. The Michigan Court of Appeals extensively described the testimony presented by the prosecution at the evidentiary hearing:

The trial court recognized Clement as an expert, and she testified concerning Lab Corp’s use of proficiency testing to ensure reliable DNA results. It was determined that the sample taken from the knife blade had DNA from more than one contributor because multiple loci showed three characteristics. Neither defendant nor the victim could be excluded as contributors because characteristics of the mixed sample on the knife blade were contributed by either defendant or the victim. Thus, no evidence existed that anyone other than defendant and the victim contributed to the mixed sample.

Testing of the mixed sample found on the victim’s bedroom doorknob produced reportable results at five loci. The doorknob sample, like the knife blade sample, clearly contained a mixture of DNA from more than one person. The DNA profiles of the victim and defendant were compared against the profile from the doorknob. Neither the victim nor defendant could be excluded as contributors. Again, the characteristics in the doorknob sample were shared by the victim or defendant. Therefore, like the sample from the knife blade, the evidence pointed to only two contributors.

Before the end of the year 2000, Lab Corp did not calculate statistical ratios for mixed sample DNA. In July 2000, the DNA Advisory Board endorsed two methods for calculating statistical ratios for mixed samples: the likelihood ratio and the probability of exclusion or probability of inclusion calculation. The FBI had developed a computer program using accepted statistical methods to replace handwritten probability calculations used with samples containing mixed DNA contributions.

Clement testified that Lab Corp followed the recommendation of the DNA Advisory Board and used the FBI computer program to calculate the probability of inclusion or exclusion statistical ratios regarding the mixed sample found on the knife blade. Clement testified that the combined probability of selecting an unrelated individual who could be included as a contributor to the mixture was 1 in 1,210 for the African-American population, 1 in 952 for the Caucasian population, 1 in 1,115 for the Southeastern Hispanic population, and 1 in 916 for the Southwestern Hispanic population. Clement further testified that the combined probability of exclusion was that 99.17 percent of the African-American population would be excluded as contributors to the mixture of DNA found on the knife blade. Hand calculations confirmed the accuracy of the computer calculations.

A likelihood ratio was also calculated for the mixed sample obtained from the knife blade. The sample from the knife blade was 164,000 times more likely to be a mixture of the victim’s and defendant’s DNA than to be a mixture of the victim’s and an unknown African-American person’s DNA, 868,000 times more likely to be a mixture of the victim’s and defendant’s DNA than to be a mixture of the victim’s and an unknown Caucasian person’s DNA, 1.03 million times more likely to be a mixture of the victim’s and defendant’s DNA than to be a mixture of the victim’s and an unknown Southeastern Hispanic person’s DNA, and 944,000 times more likely to be a mixture of the victim’s and defendant’s DNA than to be a mixture of the victim’s and an unknown Southwestern Hispanic person’s DNA.

Clement also testified concerning the probability of inclusion or exclusion with respect to the doorknob sample. The probability of randomly selecting an unrelated individual who could be included as a contributor was 1 in 319 for the African-American population, 1 in 260 for the Caucasian population, 1 in 444 for the Southeastern Hispanic population, and 1 in 350 for the Southwestern Hispanic population. The combined probability of exclusion supported the conclusion that 99.68 percent of the African-American population would be excluded as potential contributors to the mixed DNA.

The likelihood ratio method was also used for statistical calculations regarding the mixed sample on the doorknob. Two alternative hypotheses were used. One was that the mixture derived from the victim and defendant, and the other was that it came from the victim and an unknown contributor. The sample from the doorknob was 3,100 times more likely to be a mixture of the victim’s and defendant’s DNA than a mixture of the victim’s and an unknown African-American’s DNA. It was 1,870 times more likely to be a mixture of the victim’s and defendant’s DNA than a mixture of the victim’s and an unknown Caucasian person’s DNA, and was 11,700 times more likely to be from the victim and the defendant than from the victim’s and an unknown Southeastern Hispanic person, and was 6,720 times more likely to be a mixture of the victim’s and defendant’s DNA than a mixture of the victim’s and an unknown Southwestern Hispanic person.

Clement testified very specifically that two databases are used to calculate statistics and explained each carefully. Clement also testified that the statistical calculations at issue are not novel or new and are used in many areas other than forensics. While Clement agreed that the use of these statistical estimates was new to forensic laboratories, she explained that statisticians have used these statistical estimates for years to report statistics for mixture calculations. Because the forensic science community has endorsed them, laboratories now embrace statistical calculations for mixed contributor samples. The FBI’s computer program has also been accepted by the scientific community and approved by statisticians and human geneticists. Clement testified that the two calculations used to calculate the statistics in this case are generally accepted in the scientific community in the field of statistics.

Dr. Frederick Bieber, a medical geneticist employed by the Harvard Medical School and the Brigham and Young Women’s Hospital, also testified as an expert at the evidentiary hearing. Bieber explained likelihood ratios, their acceptance, reliability, and how they are used in many areas of science other than forensic DNA or forensic genetics. Bieber was on the DNA Advisory Board when it published its strong endorsement of the statistical calculations for mixed samples and which the director of the FBI approved for use in statistical estimation in forensic DNA work. The Michigan State Police has adopted one of the two calculations as an interim protocol for mixed DNA samples. Bieber believed that between twenty and thirty states were using the combined probability of exclusion/inclusion calculation for mixed DNA samples at the time of trial.

After Bieber testified, defendant waived his right to either present evidence or to obtain his own expert. After the parties presented their arguments to the court about the validity of the statistical evidence, the trial court denied defendant’s motion to suppress, ruling that the prosecution’s evidence at the hearing supported the admission of the statistics and was adequate to meet the Davis-Frye test and the requirements of this Court’s prior opinion. The trial court concluded that the admissibility of DNA evidence and statistical evidence concerning DNA has been established throughout Michigan and the courts in this country.

Coy II, 258 Mich.App. at 5-9, 669 N.W.2d at 886-38. At trial, Clement testified concerning the statistical analyses consistently with her testimony at the evidentiary hearing. See Trial Tr., dated 8/15/01 (Vol. I), at 13-48. She also testified that Christina McKee, Andre Settler, and Kareem Thrash were all excluded as possible contributors to the mixed DNA sample. See id. at 53, 58-63.

On appeal, petitioner argued that the statistical analyses employed by Clement had not gained general acceptance in the scientific community, and thus that the statistical evidence was inadmissible under the Davis/Frye test. The court of appeals rejected this argument. The court concluded that the statistical analyses used by Clement involved “no novel scientific techniques or principles ... such that a Davis-Frye analysis was necessary.” Coy II, 258 Mich.App. at 10-11, 669 N.W.2d at 838. The court explained that the Michigan courts have accepted polymerase chain reaction (PCR) testing to obtain DNA profiles, and noted that its prior opinion was premised on the recognition that statistical evidence is integral to an analysis of DNA evidence. See id. at 11, 669 N.W.2d at 838-39. Examining other cases decided by the court of appeals, the court concluded that “[t]his Court has continued to reject Davis-Frye challenges to statistical analysis of DNA evidence, finding such arguments are relevant to the weight of the evidence, not its admissibility.” Id. (discussing and citing People v. Holtzer, 255 Mich.App. 478, 491, 660 N.W.2d 405, 412 (2003); People v. Leonard, 224 Mich. App. 569, 591, 569 N.W.2d 663, 673 (1997); People v. Chandler, 211 Mich.App. 604, 611, 536 N.W.2d 799, 803 (1995)).

4. Analysis

Petitioner contends that he was denied a fair trial by the introduction of the statistical evidence regarding the match between the DNA from the mixed samples and petitioner’s DNA. As noted above, the question is not whether the admission of this evidence was improper under the Davis/Frye rule, or whether the evidence was inadmissible on some other state law basis. Rather, the only issue for this Court on habeas review is whether the admission of the evidence denied defendant a fair trial; that is, whether the evidence was “almost totally unreliable” such that “the factfinder and the adversary system w[ould] not be competent to uncover, recognize, and take due account of its shortcomings.” Barefoot v. Estelle, 463 U.S. 880, 899, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Petitioner has failed to meet this burden.

Petitioner does not contend that the underlying DNA profiling obtained by use of the PCR method was so unreliable as to deny him a fair trial, nor could he. The courts have repeatedly held that the PCR method rests on a sufficiently reliable basis to be admitted under Federal Rule of Evidence 702 or state analogues. See, e.g., United States v. Trala, 386 F.3d 536, 541-42 (3d Cir.2004); United States v. Boswell, 270 F.3d 1200, 1204-05 (8th Cir.2001); United States v. Shea, 159 F.3d 37, 41 (1st Cir.1998); United States v. Gaines, 979 F.Supp. 1429, 1433 n. 4 (S.D.Fla.1997) (citing decisions of over 20 state appellate courts). Indeed, several courts, including the Michigan courts, have concluded that “the reliability of the PCR method of DNA analysis is sufficiently well established to permit the courts ... to take judicial notice of it[.]” United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996); see also, Coy I, 243 Mich.App. at 291-92, 620 N.W.2d at 893-94.

Petitioner does argue, however, that the statistical evidence supporting the underlying DNA profile evidence was not sufficiently reliable to be admitted at his trial. This argument is without merit. At the evidentiary hearing, Dr. Bieber testified that the statistical analyses were based on methods of statistical analysis that are well accepted in medical areas other than DNA forensic analysis, and which have been accepted as reliable in the scientific ■ community. See Evidentiary Hr’g Tr., dated 5/3/01, at 27-30. Dr. Bieber and Clement both testified that the statistical conclusions were reached by application of the Federal Bureau of Investigation’s POPS Stat program, which is a program that performs the mathematical calculations based on these underlying statistical techniques. See id. at 45; Evidentiary Hr’g Tr., dated 3/2/01, at 37-38.

Petitioner has pointed to nothing to suggest that either the likelihood ratios or the inclusion/exclusion probabilities computed by Lab Corp. are, as a general matter, sufficiently unreliable that their admission violated petitioner’s right to a fair trial. These techniques were developed in accord with the National Research Council’s 1996 Evaluation, of Forensic DNA Evidence (usually cited in the case law and literature as NRC II). The courts have routinely found that statistical analyses performed pursuant to the standards set forth in NRC II are reliable and generally accepted, both as to probability statistics, see Gaines, 979 F.Supp. at 1434; United States v. Shea, 957 F.Supp. 331, 343 (D.N.H.1997), affd 159 F.3d 37 (1st Cir. 1998); People v. Reeves, 91 Cal.App.4th 14, 109 Cal.Rptr.2d 728, 747-48 (.2001), and likelihood rations, see State v. Garcia, 197 Ariz. 79, 3 P.3d 999, 1003-04 (1999). More generally, the courts have recognized that “[statistical probabilities are basic to DNA analysis and their use has been widely researched and discussed.” United States v. Davis, 40 F.3d 1069, 1075 (10th Cir. 1994); see also, United States v. Chischilly, 30 F.3d 1144, 1153 (9th Cir.1994); United States v. Bonds, 12 F.3d 540, 557, 565-66 (6th Cir.1994);. Reid v. Page, 47 F.Supp.2d 1008, 1012-13 (C.D.Ill.1999); State v. Loftus, 573 N.W.2d 167, 174-75 (S.D.1997).

That leaves petitioner to argue that the application of the statistical techniques used in his case, although sufficiently reliable in the general sense, were insufficiently reliable as applied to the mixed DNA samples. Here, too, petitioner’s claim fails. Both the testing and statistical techniques applied to mixed DNA samples are merely extensions of the generally accepted and generally reliable techniques applied to single source DNA samples. Thus, the testing and statistical techniques have consistently been upheld by the courts when applied to mixed DNA samples. See, e.g., Gaines, 979 F.Supp. at 1439; Garcia, 3 P.3d at 1001, 1003-04; People v. Smith, 107 Cal.App.4th 646, 132 Cal.Rptr.2d 230, 249-50 (2003); Wynn v. State, 791 So.2d 1258, 1259 (Fla.Ct.App. 2001); Commonwealth v. McNickles, 434 Mass. 839, 753 N.E.2d 131, 139 (2001); Commonwealth v. Rocha, 57 Mass.App.Ct. 550, 784 N.E.2d 651, 657-58 (2003); State v. Ayers, 315 Mont. 395, 68 P.3d 768, 776-77 (2003). Indeed, “[ljikelihood ratios are particularly useful ... for trace evidence samples that contain DNA from more than one person.” David H. Kaye and George F. Sensabaugh, Jr., Reference Guide on DNA Evidence, in Federal Judicial Center, Reference Manual on Scientific Evidence 534 & n. 220 (2d ed.2000) (citing NRC II, at 129).

To be sure, these methods of DNA testing and statistical analysis have not been universally embraced, and have been subject to extensive criticism. See, e.g., William C. Thompson, Accepting Lower Standards: The National Research Council’s Second Report on Forensic DNA Evidence, 37 Jurimetrics J. 405 (1997); Richard Lempert, After the DNA Wars: Skirmishing with NRC II, 37 Jurimetrics J. 439 (1997); David J. Baldwin, Errors & Misunderstandings in the Second NRC Report, 37 Jurimetrics J. 469 (1997). Such scientific debate, however, does not itself require the exclusion of scientific evidence. Even the most long-standing and well-established scientific principles are subject to debate and revision; Einstein’s General Theory of Relativity upset three hundred years of understanding of Newtonian mechanics, and after a century of successfully describing the workings of the universe Einstein’s theory continues to be hotly debated among scientists. As the Supreme Court has explained, there are “no certainties in science.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786.

In short, scientific orthodoxy is required neither for admission of evidence under the Due Process Clause nor for its admission under Rule 702. Here, the DNA evidence and the related statistical analyses were based on reliable and well accepted techniques, and the evidence was subject to extensive cross-examination by petitioner’s counsel. It was up to the jury to give the evidence the weight it considered due, and the evidence was not so “totally unreliable” that the jury “w[ould] not be competent to uncover, recognize, and take due account of its shortcomings.” Barefoot, 463 U.S. at 899, 103 S.Ct. 3383. Thus, petitioner was not denied a fair trial by the admission of this evidence, and therefore he is not entitled to habeas relief on this claim.

B. Hearsay Evidence Claim (Claim II)

In his second claim, petitioner contends that he was denied a fair trial by the admission of hearsay evidence. At trial the prosecutor, over defense objection, elicited the following testimony from Christina McKee:

Q: Ms. McKee, again, prior to your leaving the apartment that day to go to work, you had a conversation with Jenny Davidson pertaining to the Defendant.

A: Yes.

Q: What was it?

A: She had asked me to page Deane— I mean Laurence Coy — when I got to work because she had made plans with him earlier for him to come over after he got done babysitting, and asked me to page him just to remind him.

Trial Tr., dated 8/8/01 (Vol. II), at 98. The Court concludes that petitioner is not entitled to habeas relief on this claim.

1. Admission of the Evidence under Rule 803(3)

The trial court admitted the evidence concerning Davidson’s statement to Christina McKee under the state of mind exception to the hearsay rule, which provides that a statement is not excluded by the hearsay rule if it is “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)[J” Mich. R. Evid. 803(3). The Michigan Court of Appeals rejected petitioner’s claim that this evidence was not properly admitted because the victim’s state of mind was not at issue. Noting that “the victim’s statement of future intent or plan to meet with defendant on the night of her murder falls within the plain meaning of the rule,” Coy II, 258 Mich.App. at 14, 669 N.W.2d at 840, the court explained that such statements are admissible if relevant to some issue in the case, even if the declarant’s state of mind itself was not at issue. The court explained that the Michigan Supreme Court, in People v. Fisher, 449 Mich. 441, 537 N.W.2d 577 (1995), held admissible statements made by a murder victim even thought the victim’s state of mind was not at issue, because the statements were relevant to issues involved in the case, particularly the defendant’s motive and premeditation. See Coy II, 258 Mich.App. at 14, 669 N.W.2d at 840 (discussing Fisher, 449 Mich, at 447-50, 537 N.W.2d at 580-81). The court of appeals also noted that in People v. King, 215 Mich.App. 301, 544 N.W.2d 765 (1996), the court “specifically rejected the defendant’s argument ... that the victim’s state of mind must be ‘at issue’ because [the Michigan] Supreme Court in Fisher, supra, did not take that approach.” Coy II, 258 Mich.App. at 15-16, 669 N.W.2d at 841 (citing King, 215 Mich.App. at 309, 544 N.W.2d at 770).

Petitioner cannot show that he was denied a fair trial by the admission of this evidence, because the evidence was properly admitted under state law and was relevant to the issues involved in the trial. As the Michigan Court of Appeals explained, contrary to petitioner’s argument relevant state of mind evidence is admissible under Rule 803(3) even if the declarant’s state of mind itself is not at issue in the case. See People v. Ortiz, 249 Mich. App. 297, 307-10, 642 N.W.2d 417, 423-25 (2002); People v. Riggs, 223 Mich.App. 662, 704-05, 568 N.W.2d 101, 119 (1997); King, 215 Mich.App. at 309, 544 N.W.2d at 770. Further, contrary to petitioner’s argument he was not denied a fair trial when the prosecutor used this evidence as substantive evidence of guilt. “Where one of the exceptions in the rules of evidence applies, hearsay is admissible as substantive evidence.” People v. Norris, No. 248784, 2004 WL 2238593, at *4 (Mich.Ct. App. Oct.5, 2004) (per curiam); see also, People v. Poole, 444 Mich. 151, 159, 506 N.W.2d 505, 509 (1993); cf. Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1311 n. 10 (8th Cir.1993). Accordingly, the Court should conclude that petitioner is not entitled to habeas relief on this claim.

2. Confrontation Clause

Petitioner also contends that the introduction of this hearsay evidence violated his Sixth Amendment right to confront the witnesses against him. Petitioner is not entitled to habeas relief on this claim.

a. Clearly Established Law

The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Confrontation Clause is applicable to the states through the Fourteenth Amendment’s Due Process Clause. See Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). At the time of petitioner’s trial and direct appeal, the standard governing the admissibility of hearsay statements under the Confrontation Clause was that set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Roberts, the Court explained that the underlying purpose of the Confrontation Clause is similar to that of the hearsay rule, ie., to exclude unreliable, out-of-court statements in criminal proceedings. Thus, the Court reasoned:

In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in