Miftari v. Houser

          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 ...