United States District Court, D. Alaska
MEMORANDUM DECISION
JAMES
K. SINGLETON, JR., Senior United States District Judge.
Bukurim
Miftari, a state prisoner represented by counsel, filed a
Petition for a Writ of Habeas Corpus with this Court pursuant
to 28 U.S.C. § 2254. Miftari is in the custody of the
Alaska Department of Corrections and incarcerated at Goose
Creek Correctional Center. Respondent has answered and moved
to dismiss, or in the alternative, for summary judgment.
Miftari has replied in opposition. Briefing is now complete,
and the case is before the undersigned judge for
adjudication.
I.
BACKGROUND/PRIOR PROCEEDINGS
Miftari
was charged with first-degree murder, second-degree murder,
kidnapping, and tampering physical evidence in connection
with the September 2012 death of his girlfriend, K.R. On
direct appeal of his conviction, the Alaska Court of Appeals
laid out the following facts underlying the charges against
Miftari, his motion for a continuance that is the focus of
his Petition, and the evidence presented at trial:
Background facts
On September 16, 2012, Kristen Reid and her friend Belen
Walker drove to a strip club in Anchorage to celebrate
Walker's birthday. Shortly after Walker and Reid sat
down, Miftari arrived. Reid had recently broken off her
dating relationship with Miftari.
Another of Reid's friends, Caren Bennett, was at the
strip club that night. She spoke with Miftari, who seemed
jealous that Reid was speaking to other men and sharing her
telephone number. Miftari asked Bennett, “[h]ave you
ever thought about shooting somebody that you love?”
Later, Bennett followed Reid to the women's restroom and
related this conversation to her. Reid told her, “I can
handle it, it's okay.” Reid showed Bennett
scratches on her neck and said they had been inflicted during
a fight with Miftari.
After Walker and Reid left the club around 2:00 a.m., they
stopped at a grocery store. By then Reid had ignored ten to
fifteen phone calls from Miftari. Once back at Walker's
home, Reid parked her vehicle around the corner so that
Miftari would not know she was there.
Miftari texted Reid that he was looking for her. Soon
thereafter, he arrived at Walker's house. He called out
Walker's name and asked if Reid was inside. When Reid
opened the door, Miftari racked the slide of a handgun,
apparently to chamber a bullet, and held the gun at his side.
Reid accused Miftari of harassing her, and Miftari responded
that he only wanted to speak with her. Leaving her shoes and
her cell phone behind, Reid followed Miftari to his vehicle,
a blue Chevy Tahoe.
At 5:54 a.m., police responded to a call about a blue Chevy
Tahoe that was stopped on Fairbanks Avenue in Anchorage. The
vehicle was registered to Miftari Auto Sales, a business
owned by Miftari's family. Police found bullet holes and
blood inside the vehicle. Reid was lying in a nearby ditch
with a gunshot wound to her face. She was transported to a
hospital, where she died a few days later.
Miftari's motion for a continuance
Two years before trial, the State subpoenaed records from AT
& T, Miftari's cell phone provider, and disclosed
these records to Miftari. Five months before trial, the State
filed a notice that it would call an expert identified only
as an AT & T cell phone tower witness, whose name would
be supplied later. (AT & T had a policy of only
designating an expert to respond to a State subpoena once the
trial date was definitively established.)
The State timely disclosed that the expert would explain the
interaction of Miftari's cell phone with various cell
phone towers around Anchorage: “He will review the cell
phone records that were provided [to Miftari] . . . and
explain to the jury how to interpret the data as to [a] cell
phone number, incoming calls, outgoing calls, duration of
calls and cell phone tower locations that picked up the call
signals.” Fifteen days before trial, the State notified
the defense that AT & T had named the engineer that it
would produce, Vincent Maduakor. Then, on the day before
trial, Miftari's defense attorney moved for a
forty-five-day continuance. The defense attorney argued that
the untimely disclosure of the engineer's name, the
State's failure to produce his curriculum vitae, and the
generality of the summary of the engineer's proposed
testimony violated Alaska Criminal Rule 16(b)(1)(B). Miftari
contended that the continuance would afford him time to
prepare a “vigorous cross-examination.” The judge
held a hearing regarding Miftari's motion. The prosecutor
argued that, contrary to its earlier categorization of the
engineer as an expert witness, the engineer was actually not
an expert, because he would merely interpret business records
(the cell phone tower data) without exercising professional
judgment.
The judge accepted this argument, analogizing the
engineer's testimony to that of a foreign language
interpreter. The judge accordingly denied Miftari's
motion for a continuance based on the State's tardy
disclosure of the expert's name.
Events at trial
At trial, the defense lawyer voir dired the engineer, who
agreed that his testimony was based on his engineering
expertise and was not just rote decryption of business data.
Hearing this, the judge acknowledged that the engineer
actually was an expert witness. Miftari's attorney then
renewed his request for a continuance based on the
prosecutor's earlier failure to timely disclose the
engineer's identity. When the judge asked how Miftari was
prejudiced by lack of notice, the defense attorney answered:
All we're saying is that . . . under the expert rules we
should have had more time with this technical information to
work with it and be prepared.
The prosecutor rejoined that the defense attorney had been
provided with the cell phone data two years previously. After
further discussion regarding the limited nature of the
engineer's ultimate conclusion-that Miftari's phone
was present at some indeterminate location within the area of
coverage of each cell phone tower that responded to the cell
phone's signal-the defense attorney did not continue to
argue that he needed a continuance in order to effectively
cross-examine the witness.
The judge ruled that he would limit any further testimony by
the engineer to fact-based testimony. Miftari later gave
notice that he would call a witness to rebut the cell phone
engineer's testimony. The State opposed this, arguing
that the defense attorney's proposed witness was a
late-noticed expert. The court ruled that it would allow a
defense witness to testify about how cell phone towers work
and how cell phones send ...