RULING ON 28 U.S.C. § 2254
DONALD E. O'BRIEN, Senior Judge.
This matter is before the Court on Petitioner Dion Scott Miller's [hereinafter Mr. Miller], 28 U.S.C. § 2254 Petition. After a bench trial, a judge convicted Mr. Miller in the Iowa District Court for Webster County of first degree burglary in violation of I.C.A. § 713.1 (2007). See State v. Miller , 767 N.W.2d 421 (Table) (Iowa Ct. App. 2009). He is currently incarcerated in the Fort Dodge Correctional Facility in Fort Dodge, Iowa.
I. FACTUAL BACKGROUND
As recounted in Miller , 767 N.W.2d 421 (Table) at 1-3) the following facts were clear from the trial testimony: Over a period of about six years, Mr. Miller had a relationship with Renysha Newsome. In August 2007, Newsome broke off the relationship, and at some point began a relationship with Mr. Miller's half-brother, Marcus Hill [hereinafter Mr. Hill]. The following month, Mr. Miller sent a number of threatening text messages to Newsome's cellphone, such as: "U said dat [expletive] u dead"; "u dead"; "N if u eva say nothing to me I will kill ur trifling ass."
Very early in the morning of October 3, 2007, Ms. Newsome received a couple of text messages from Miller asking about her whereabouts: "Where u at, " and "U ain't home [expletive] do wat u do." Ms. Newsome decided to leave her car at the bar they were at and ride with Mr. Hill to his home. Ms. Newsome intentionally did not drive to Mr. Hill's house because she was concerned about parking her car in front of the house where Mr. Miller could see it.
Around 3:00 a.m., Mr. Miller also arrived at Mr. Hill's house. Mr. Hill and Ms. Newsome heard a knock on the front door. Ms. Newsome asked Mr. Hill not to answer the front door, but Mr. Hill said it would be okay to answer it. Mr. Hill instructed Ms. Newsome to go into the bedroom and shut the door. Ms. Newsome did so. Ms. Newsome could not see what was going on in the front room, but heard grumbling and bumping going on "maybe like someone was wrestling." Mr. Miller then opened the bedroom door and came in. He grabbed Newsome by the hair and began punching her. He hit Newsome all over her face. Hill tried to get Mr. Miller off of Ms. Newsome, repeatedly telling Miller to "get the [expletive] out." Mr. Hill also told Newsome to call the police. The beating continued even after Mr. Hill told Mr. Miller to get out.
Eventually, Mr. Hill got a hold on Mr. Miller, enabling Ms. Newsome to escape. Newsome ran out of the house into the nearby woods, and listened as Mr. Hill and Mr. Miller argued and Hill continued to tell Mr. Miller to get out. Eventually, Mr. Miller left the house. Newsome remained hidden in the woods while Mr. Miller drove his car back and forth, apparently looking for Newsome. Mr. Miller then sought refuge at a friend's house not far from Mr. Hill's home. Subsequently, Newsome sought medical attention and contacted the police.
As part of their investigation, Iowa Division of Criminal Investigation arranged for Newsome's cousin, Valerie Newsome, to call Mr. Miller on a recorded line. In the call, Mr. Miller said that Mr. Hill:
...didn't want to let me in the house, "cause I sat out there and beat on the door, beat on the door because I was... I was peep[ing torn] all night and I said I knew what was going on... [W]hen I [said] please open the door, I'm like the police, police now the police is on me. He, and he, I'm trying to walk in the house, he tried a football [tackle] and [expletive]...
Ms. Newsome did not actually see Mr. Miller enter the house on October 3, because she was hiding in the bedroom, but she later told the police that Mr. Hill had "let him in." In a recorded interview with Officer Larry Hedlund of the Division of Criminal Investigation on the evening of October 3, Mr. Hill stated that Mr. Miller "came pounding on our door... so I let him in." Mr. Hill denied tackling Mr. Miller but said that Mr. Miller "pushed" past him.
II. PROCEDURAL HISTORY
Mr. Miller went to trial on December 11, 2007, after waiving his right to a jury. At the commencement of trial, Miller's counsel gave a brief opening statement. He explained that Hill was "on the lamb" because of a probation violation and would not be testifying. However, Mr. Miller's counsel stated that Hill had given a recorded statement to the effect that he had "let [Miller] in." Mr. Miller's counsel made it clear that this statement was an important part of his client's defense and that he intended to rely upon it at trial.
Ms. Newsome testified at trial along with several law enforcement officials. The contest at trial was not over whether Mr. Miller had assaulted Ms. Newsome, but whether he had entered Hill's home without a right, license, or privilege to do so. See I.C.A. § 713.1 (2007). Mr. Miller's counsel tried repeatedly to introduce evidence of Mr. Hill's recorded statement that he had "let [Miller] in." However, the State objected on hearsay grounds, and the district court sustained the State's objections.
When the testimony finished around mid-day, Mr. Miller's counsel asked that the court wait until 1:00 p.m. to see if Mr. Hill would appear. (The mother of Mr. Miller and Mr. Hill had appeared and testified.). The court agreed to this recess, but Mr. Hill did not arrive. At that point, Mr. Miller's counsel moved for a mistrial. The district court asked if a motion to continue had been filed, but Mr. Miller's counsel indicated that he was asking for a new trial rather than a continuance. The district court denied the motion for a mistrial. Subsequently, the court found Mr. Miller guilty of first-degree burglary in violation of I.C.A. §§ 713.1 and 713.3(1)(c). The Court denied Miller's motion for a new trial.
Mr. Miller then appealed his conviction. See Miller , 767 N.W.2d 421 (Table) at 1-5. Mr. Miller argued that:
the district court should have admitted evidence of Hill's out-of-court statement that he "let him [Miller] in." Miller does not dispute that the statement is hearsay, but maintains it should have been admitted under the residual exception set forth in Iowa Rule of Evidence 5.803(24) and 5.804(5)....
Id. The Iowa Court of Appeals concluded that the district court was within its discretion to exclude the hearsay testimony, stating that:
[a] district court has no discretion to deny the admission of hearsay that falls within a hearsay exception, and no discretion to admit hearsay if it is not covered by an exception. Id .; State v. Dullard , 668 N.W.2d 585, 589 (Iowa 2003).
Essentially, the rule sets forth five requirements that must be met before evidence can be admitted under the residual exception: (1) trustworthiness; (2) materiality; (3) necessity; (4) notice; and (5) service of the interests of justice. State v. Rojas , 524 N.W.2d 659, 662-63 (Iowa 1994); State v. Kone , 557 N.W.2d 97, 100 (Iowa Ct. App. 1996). The district court is to make findings on each of these criteria, and each must be satisfied before the evidence can be admitted. State v. Weaver , 554 N.W.2d 240, 247 (Iowa 1996), overruled on other grounds by State v. Hallum , 585 N.W.2d 249, 254 (Iowa 1998); Kone , 557 N.W.2d at 100-01. Here the district court found that the criteria of materiality, notice, and service of the interests of justice had been met. However, it determined the statement to be insufficiently trustworthy. This factual finding is entitled to deference, and should be upheld if supported by substantial evidence. State v. Cagley , 638 N.W.2d 678, 681-82 (Iowa 2001)...We believe the district court's finding on the trustworthiness requirement was supported by substantial evidence....Hill's statement was not made under oath. Hill was also Miller's half-brother. Moreover, the recorded interview as a whole suggests that Hill may have been somewhat downplaying the incident. For example, Hill said, "I don't know if [Miller] was really hitting her" until Officer Hedland responded, "Well, somebody hit her, she's got cuts and bruises, " at which point Hill replied, "Yeah, that's what I was gonna say, like you said, she got a lot of cuts, so he must a been hitting, you know." Similarly, in the interview, Hill denied having an understanding why Miller would care if Hill was with Newsome. Accordingly, we sustain the district court's determination that Hill's out-of-court statement did not meet the trustworthiness element of the residual hearsay exception. We also note, as did the district court, that Miller apparently made no attempt to subpoena Hill for trial, nor did Miller move for a continuance to try to locate Hill when essentially invited to do so by the district court.
Miller , 767 N.W.2d 421 (Table) at 2-3. Mr. Miller made several other arguments pro se, which the Court of Appeals ...