medical-malpractice-defense

QUESTIONS PRESENTED FOR REVIEW 1. To convict, the statute required the medical provider to be engaging in “sexual contact” which was “medically recognized as unethical or unacceptable”. The | prosecution failed to find and file a medical expert to testify, and Heiney had multiple experts available and willing to testify that the examination was ; “medically recognized” as both “ethical and acceptable”, and not “sexual”. Trial ; counsel tried but failed, because the filing was ruled untimely, to file notice of | Heiney’s medical expert witness. Did the United States Court of Appeals for the : Sixth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that improperly reviewed the merits in contradiction to this Court's precedent when it denied Heiney a COA to obtain merits review of his claim that his trial counsel was constitutionally ineffective for failing to file a notice of expert medical witness timely? 2. The principal issue raised on direct appeal was that the evidence was insufficient to convict without any medical expert testimony on the part of the prosecution that the treatment was “sexual” contact that was “medically... recognized as unethical or unacceptable”. Did the United States Court of Appeals for the Sixth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard in contradiction to this Court's precedent when it denied Heiney a COA to obtain merits review of his claim that his appellate counsel was constitutionally ineffective for failing to raise the claim that trial counsel was ineffective for its failure to file on time Heiney’s medical expert witness notice before the court’s deadline? . v 3. The State had numerous Brady violations including withholding undisclosed deals with Heiney’s adversarial witnesses as well as the state’s interviews with medical experts that indicated Heiney’s conduct was medically recognized as oe : both acceptable and ethical. The State Courts put, the already determined by ee this Court unconstitutional burden of discoverability on Heiney, by stating that Heiney was responsible for discovering the Brady materials at the time of trial because the materials existed during his trial, even though Heiney was unaware of the undisclosed deals with witnesses as well as the medical professionals’ interviews existence. Did the United States Court of Appeals for the Sixth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that also improperly reviewed the merits in. .. . contradiction to this Court's precedent when it denied Heiney a COA to obtain merits review of his claim that Brady violations resulted ina constitutionally SO unfair trial? ; 4. The Sixth Circuit Court of Appeals accepted that the Baisden exception, that ; “common knowledge” could circumvent the State statutory requirement for expert “medically recognized” testimony, was a matter of State law determination and in turn not for Federal Habeas review. This ignored that the State Court of Appeals acknowledged there was no “common knowledge” about the conduct in question (hence eliminating the Baisden exception), however, ; then the State Court of Appeals violated the confrontation clause by using medical expert testimony, which was not presented at Heiney’s trial, froma | completely unrelated case to Heiney’s case (both in presentation of medical a problems and in the medical specialty examining the patient) to fulfill the ; “medically recognized” portion of the statute to uphold the convictions. This | confrontation clause violation is a Constitutional violation available for habeas review and is not just a matter of State law interpretation. Did the United States Court of Appeals for the Sixth Circuit use the wrong facts and impose an improper and unduly burdensome Certificate of Appealability (COA) standard which improperly reviewed the merits in contradiction to this Court's precedents when it denied Hei