Peak v. Webb

465 (6th Cir.2011) that was 241, (quoting acknowledges “argu where he he 632 245 F.3d ably sought have an 420, 432, require[d] ... evi Taylor, 529 v. Williams hearing previously pre claims (2000)). dentiary on 1479, 146 L.Ed.2d S.Ct. court, in state but then attempts sented” explained “[dili Supreme Court has on argue fully that “it is not clear the require in the case that usual gence will status the in this case that of record Mr. minimum, an seek evi prisoner, Keeling would been entitled to a have hearing court in the man in state dentiary hearing, requested.” had been even one Williams, prescribed by ner state law.” motion for reconsideration of Keeling’s 437, 120 1479. 529 U.S. at relief, post-conviction sentence/motion exception Keeling’s of ineffec With the 20, filed on June the Hamilton claim, appellate of counsel tive assistance Pleas, did County Court of Common not petition in grounds Keeling’s for relief request evidentiary hearing. As a re an adjudicated on merits sult, Keeling clear initial fails to hurdle result, light As a in of Ohio courts. state 2254(e)(2) posed by section for his ineffec Pinholster, are we limited Cullen v. claim, appellate tive of assistance counsel record, and the district court state court request evidentiary because he did not an evidentiary hold failing in an did not err Bowling hearing state court. v. Cf. these See Jackson v. hearing on claims. (6th Parker, 344 F.3d 511-12 Cir. 620, 624, 2011 Lafler, Fed.Appx. WL 2003) (finding met petitioner burden (6th 21, 2011); *4 Cir. Dec. basis developing factual of claim im Howes, 663 F.3d 823-24 Robinson 2254(e)(2) posed by section where he “re (6th Cir.2011). peatedly sought evidentiary hearing an court”). state Keeling’s Because ineffective as adjudi not of counsel claim was sistance V. court, cated on the merits state reasons, foregoing For we affirm grant evidentia court could not an district judgment of the district court. require ry hearing on claim unless the 2254(e)(2) § were satis ments of 28 U.S.C. Robinson, 663 F.3d at

fied. See 823. argue not new consti

Keeling does that a applied rule to his claim of ineffec

tutional counsel, appellate tive assistance PEAK, Anthony Petitioner- Michael 2254(e)(2)(A)(i), § U.S.C. factu Appellant, previously claim predicate al with the exercise due undiscoverable WEBB, Respondent-Appellee. Patti 2254(e)(2)(A)(ii), diligence, 28 U.S.C. 09-5977. No. he must demonstrate he therefore basis for develop factual attempted Appeals, Court of United States requisite with the his claims state court Sixth Circuit. Pinholster, S.Ct. at diligence. See Argued: 2011. Nov. an Keeling request 4. did evi n. Decided Filed: March court, hearing in state nor did he dentiary Rehearing Rehearing En Banc* statutory pursue the methods that state April Denied 2012.** evidentiary basis for an provide would essentially Keeling in state court. hearing brief, in his this fact in a footnote

concedes ** * grant rehearing for partic- Judge Clay Judge would Moore recused herself from ipation ruling. stated in his dissent. in this reasons

OPINION BOGGS, Judge. Circuit Peak, first-degree Michael convicted life prison, in murder sentenced District Court petitioned United States corpus. argued writ of habeas He for a rights had that his Confrontation Clause government violated trial when been his tape recording co-defen- played without affirma- dant’s custodial statement calling co-defendant a wit- tively as ness, objection. The court over Peak’s petition, Peak appeals denied the now may the trial court Though that denial. well have violated Peak’s constitutional objec- it sustain rights when failed to tion, say, we cannot as the jurists requires, now that fairminded could disagree opinion with our when the co- defendant was in the courtroom and avail- (cross-) testify able to and be examined. Nicols, Squire, J.C. ARGUED: Howard fact, justices four In such fairminded (US) LLP, Cleveland, & Dempsey Sanders Kentucky Supreme disagree. Court did Ohio, Ferguson, Todd Appellant. for D. Therefore, compelled we are AFFIRM. General, Kentucky Attorney of the Office Frankfort, Kentucky, ON Appellee. for Nicols, Steven A.

BRIEF: Howard J.C. I (US) & Delchin, Squire, Dempsey Sanders Bearden, Meeks, Leann Patrick Ohio, LLP, Cleveland, Appellant. for mur- charged and Michael were with D. Office of the Ferguson, Todd dering, robbing, conspiring to murder General, Frankfort, Kentucky, Attorney Kentucky, Peak v. person. an unidentified Peak, Appellee. Anthony Michael for (Ky.2006).1 in- The S.W.3d City, Kentucky, pro Central se. Peak, Meeks, vestigation and Bearden MERRITT, BOGGS, and Before: told Mack- began when Bearden Charles CLAY, Judges. Circuit cocaine, em, a man to whom she sold had been in a Mack- she involved murder. BOGGS, J., opinion delivered exchange story police em told MERRITT, court, J., joined, which immunity from prosecution. MERRITT, 474-75), delivering (pp. also J. CLAY, J. case lack of separate concurring opinion. was notable 475-87), separate or witnesses. No blood (pp. physical delivered a evidence fingerprints found at the scene. dissenting opinion. Knew, TIMES, Apr. Forgot, but N.Y. years identified six later Never 1. The victim was then, 2008, http://www.nytimes.eom/2008/04/21/us/ Miguel Until he was called Garcia. Male, (describing 21land.html?pagewanted=all FA-99- Juan Doe or Unidentified Case identity). Berry, No One search for 09. See Dan A Name and Face Garcia’s weapon way was never found. find a out of the house so that The murder she only witnesses were three co- escape. She testified that no one three, themselves. Of the conspirators her, behind that she believed only testimony testified. Her next, Bearden Mike came in and that Meeks did not primarily of the facts re- was the version come the house. stated that She she upon lied at trial.2 did not see Peak when went she into the house. She stated that she “wound up” testimony According Bearden’s at tri- walking into a bathroom was trying al, victim, whom she she met open a window bathroom when she “Mike,” at a knew as social occasion heard two shots. She testified that she Louisville, they togeth- where used cocaine cursing heard calling Peak and then event, er. At another social Mike told Meeks, dead, yelling: “He’s not he’s still Bearden that he wanted to sell a kilo of standing, and he’s coming towards me.” learning cocaine. After that Mike was bathroom, cocaine, Peak, a She trying kilogram to sell then left and ran into Meeks, Peak, to conspired and Bearden kill Mike who said: and get “Get Meeks him in order Peak alleg- to take cocaine.3 in here.” Meeks, edly “Yeah, you get said to the gun Bearden further testified when it shooting.” and I’ll do the She testified out, later, light was getting hours Meeks night give that the next she Meeks saw came and outside told her come in to Peak gun. a Bearden testified that at that help clean blood. up She testified that she point, she worried that the men were actu- “everywhere” saw blood she did ally to kill planning Mike. not see Mike’s body. Bearden testified night, nights The next two after the that, they when finished cleaning, killing victim, three had first discussed they country drove into out and Peak Bearden, Peak, and Meeks drove to a got out of the car to out gun. throw together.4

farmhouse Meeks told Bearden However, Bearden stated that she did not to call Mike and tell was a buyer him there gun any see the at point. She merely for the cocaine. Bearden testified that she stated that Peak get said: “We need to rid thought gun Meeks also a at had this gun.” of the point, both so that men were armed. She her, testimony, Peak Later her Bearden you testified that told “When talked walk you telling police in Mike’s about you, “everything” and behind better as get way out soon you’re going get they as showed photos her Peak yourself.” shot an questioning. Bearden testified that Meeks at initial She she, Meeks, when took the victim arrived at them to where had gun allegedly inside, she hoping farmhouse went to been farmhouse, discarded and to the 2. partially Bearden's facts were corroborated 3. Bearden seems to have known Meeks Cissell, through testimony a mutual of Mike friend when she who did not was graduate school. She stated she did participate present in and was not night they know Peak until the first murder, discussed helped but who Peak and Meeks killing Specifically, Mike. she stated that she move body the victim’s after hours the mur- night met Peak the she discussed the victim Cissell, der was committed. one of Peak’s Meeks, with Peak that she and had sex friends, best testified that Peak Meeks night. later that same approached had him in advance of the mur- killing der stealing about a man and his co- statement, taped played In his which caine. subject appeal, trial and of this Meeks said that he used to live farmhouse. taped interrogation, In her it a redact- been testimo- created which had “burnt.” had signed that she ny, Bearden verified ed version to skirt the statements that that if she testified prosecutors deal violate Meeks’s self- would they not seek the truthfully However, would death thought incrimination. Meeks against her. penalty this version made him more appear even have been the shooter. Because he did Bearden, direct examination of After not want this redacted version to be attorney moved severance and Peak’s played, waived Amend- Meeks his Fifth mistrial, was “wearing because Bearden rights ment the state play so hats,” serving as she was both a two Meeks tape. unredacted was available prose- and as -witness for the defendant be called as a witness trial. Peak had cution, had been allowed and because she any not had prior to cross- during prosecu- to be in the courtroom examine statement, Meeks. gave opening which her tion’s him hearing benefit of characterize “the objected government’s intro- testimony immediately getting before her confession, taped argu- duction of Meeks’s Meeks also moved the witness stand.” on ing tape that playing calling without These severance the trials. motions for Meeks to the stand at the vio- same time were denied. lated right Peak’s Sixth Amendment cross-examination, During Bearden was confront the witnesses him. He to be a witness with some- demonstrated objections also moved for a mistrial. His credibility. sterling less than She what objec- were In overruling overruled. his drug she agreed that was a dealer. She tions, any stated that party the court contradictory impeached was with state- Meeks, now call as his Fifth Amendment being about ments that she had made rights waived. had been Meeks, primarily of not of frightened forty-five-minute The then tape was that she did not actu- Peak. She admitted played, during testimony Detective ally gun, she had said initial- see when Police, Griffin of the State who gun. ly gave that Meeks Peak the She tape, had arrested Meeks. On the Meeks she never blood on Peak or stated saw was stated that Peak shooter. also killing. Meeks after She stated played Meeks’s was twice more statement pregnant with Peak’s that she became during government’s clos- during trial: Finally, an child and had abortion. Bear- and, argument, ing jury’s request, at the poly- admitted she had failed a den in during tape stated deliberations. The impris- took while graph exam she relevant part: oned. [Mike, [wjalked Leann, and I] establishing direct evidence door the house [of where victim as the in this murder came

Peak shooter thing I Leanne killed]. Next know taped from Meeks’s unsworn confession.5 Tony—Tony out from a jumped undisputedly This confession was made [sic]— doorway[,] pulled gun[,] and Leanne custody, in while Meeks was after police screamed, trial, I I gunshot. At ran. heard a arrest. Meeks asserted his ran I heard ran. both outside. right Fifth Amendment not to incriminate We inside, I more shots. came back play gun himself. Because the state wanted to review, (there two) provided our tapes were were intro- record but were 5. These they transcript. at trial as Exhibit 53A quoted duced Commonwealth from the so are record tapes transcribed in the and 53B. laying on declarant is at trial to present individual defend found the ” ground on the ground explain (quoting face down it.’ Id. at Crawford Tony standing pretty of blood with pool Washington, 59 n. him hollering (2004)). top much over [sic] Be- proceeded to screaming. go Then I call cause Peak had the I outside heard Leanne back because to, Meeks as a witness and chose not I outside. scream. went She was reasoned, court he “waived his I screaming, go out. back in- freaking confrontation.” Ibid. Tony’s pretty freaking much out side. justices dissented, Three stating ... And ... over what he’s done. then they trial believed the court had erred the drugs worried about where are. overruling objections to a “clear violation” drugs. Leanne’s Finds Gets car. Clause, they of the Confrontation and that it river. past Drives Throws the grant would new trial. Id. at 551. gun the river.6 The dissent on language relied Crawford’s stated, “I any- also didn’t kill Meeks “[wjhere is at testimonial evidence

body” gun thought and “I was for issue, the Sixth Amendment what demands Tony’s protection.” required: unavailability the common law trial, jury At the end convict- prior opportunity and a cross-exami- murder, Peak of first-degree ed intentional 550 (quoting Crawford, nation.” Id. at robbery, murder, conspiracy to commit 1354). 541 U.S. at Meeks’s tampering physical evidence. He testimonial, undeniably statement was prison was sentenced to life in without the explicitly held “police inter- Crawford possibility probation parole or for twen- rogations” Crawford, were testimonial. ty-five years. Meeks was convicted of Therefore, 541 U.S. at 124 S.Ct. 1354. murder, first-degree robbery, wanton con- reasoned, the dissent had trial court murder, spiracy to and tampering commit allowed testimonial evidence to present- be physical He evidence. was sentenced ed where the declarant was both available prison life in possibility without the prior and where had not there been a probation parole twenty-five years. for Peak for to cross-examine Peak, 197 S.W.3d at plead- 540. Bearden him, a both require- violation of Crawford murder, guilty robbery, conspir- ed Peak, ments. 197 S.W.3d at 550. twenty-year acy received a sentence. disputed plurality’s dissent decision that Peak his rights. waived confrontation appealed Peak his conviction. His ap- argued It job was that it is of a crimi- peal consolidated with Meeks’s. Ibid. nal cure majority Kentucky A defendant to the trial court’s er- Supreme Court, comprised justices, Calling ror. Ibid. Meeks during of four Peak’s affirmed conviction, only three-justice adequate Peak’s a case-in-chief not an was substi- plurality joined cross-examination, tute opinion.7 plurality for immediate later, days reasoned that the Confrontation Clause dissent there would reasoned — “ not bar a long immediacy does statement as not be ‘the cross-examination tape 6. Meeks’s shouting yet. statement on the Peak differs dra- that Mike was not dead matically quick, from while Bearden's version of Meeks makes the incident sound had the running events. Meeks Bearden Bearden’s version three at the farm- recalls im- outside; mediately house for at least three or four hours. being she recalled inside the house when she heard shots fired. Meeks’s screaming version leaves out the Justice Roach concurred in the result. that the decision of the Kentucky be reminded of what mined jurors would contrary heard. Court was not to Craw- they had progeny, and its because the district ford after Su- month One that “the court determined Constitution Peak opinion published, preme Court actually require does not in the rehearing a Ken- petition filed to call a witness to the stand in its case-in- argued Court. He tucky satisfy chief Confrontation Clause. in this majority opinion Court’s “[t]he Rather, simply requires the Constitution the issue and overlooks case misconceives the witness must made be available controlling upholding prosecu- law in for cross-examination.” The court rea- and use of the unre- tion’s introduction ability soned “Peak’s have called co- nontestifying confession of dacted Meeks is fatal to his Confrontation Clause petition The court denied the defendant.” argument. Placing prose- a burden on the Peak, rehearing. See 197 S.W.8d cution to do more than make the witness (noting caption). the denial the case ... goes beyond available what the Su- petitioned next the United States Peak preme dealing cases with the Con- for a of certiorari. Supreme Court writ required.”10 frontation Clause have after re- petition The Court denied the con- response on the case after questing appealed the district court’s denial ference. 549 U.S. petition of his to this court. We affirm. (2007). exhausted state-court reme- Having his II dies, for a writ of petition Peak filed The Sixth Amendment Confrontation court, raising corpus

habeas district states: “In all criminal prosecu Clause of his single ground that admission tions, enjoy the accused shall ... at trial violated taped Meeks’s statement to be confronted with the witnesses rights under the Confrontation Clause.8 him.” against U.S. CONST. amend. VI. petition The district court denied his Washington v. that held where granted appealability. a certificate of The Crawford issue, court, “testimonial evidence is at ... noting by in forth the standards set Sixth Amendment demands what the com the Antiterrorism and Effective Death (AEDPA) 1996,9 Penalty required: unavailability Act of deter- mon law and a (2) point history, Up 8. to this case resulted in a decision that was based on proceeded through had counsel. He filed his an unreasonable determination of the facts petition corpus pro for habeas se. light presented of the evidence that was proceeding. in the State court part: 9. AEDPAstates in relevant 28 U.S.C. 2254. (d) application corpus An for writ of habeas person custody pursuant on behalf of a decision, making the district court 10. judgment of a State court shall not be case, Bailey explicitly relied on a Sixth Circuit granted respect any with claim that was Pitcher, (6th Cir.2004). Fed.Appx. v. adjudicated on the merits in State court However, this case was decided before Craw- proceedings adjudication unless the of the any determination and is irrelevant in ford claim— Kentucky Supreme whether Court was (1) contrary resulted in a decision that was contrary clearly law established federal to, or involved an unreasonable question of, law, when the federal law in is clearly established Federal as deter- Crawford’s holding on the of a criminal defendant by mined Court of the United States; or to confront the witnesses him. final, for cross-examination.” cision became not after. prior opportunity See 362, 380, Crawford, Taylor, 541 U.S. S.Ct. Williams 529 U.S. (2000) (“It S.Ct. 146 L.Ed.2d 389 is rights under the Confronta Peak’s clear that AEDPA perfectly Teag- codifies govern at issue when the tion Clause were Lane, ue [v. taped played ment Meeks’s statement. (1989) to the extent that ] Supreme Court has held that “wit “ ” Teague requires federal habeas courts to testimony.’ are those who ‘bear nesses” deny contingent relief that is on a rule of 51, 124 Crawford, 541 U.S. at S.Ct. 1354 clearly law not established at the time the (quoting N. Webster, An American Dic final.”). state conviction became tionary English Language (1828)). “testimony” is defined The Court held “ Further, Court has or affirmation solemn declaration ‘[a] very recently abundantly made purpose establishing clear made for the or Further, proving granted by fact.’” Ibid. the review AEDPA even some is equivalent[s]” that “functional Court held than plain more constricted AEDPA’s lan testimony, specifically including of in-court guage already suggests. long As as “fair- examinations, custodial are the core class jurists disagree minded could on the cor statements, noting of testimonial further decision,” rectness the state court’s then by police taken officers “[statements precluded relief is under AEDPA. Har - interrogations ... the course are Richter, rington U.S. -, testimonial under even a narrow stan (2011) (internal 770, 786, 178 L.Ed.2d 624 51-52, 1354; dard.” Id. at see omitted). quotation marks A habeas court 53, 124 (“interroga also id. at S.Ct. 1354 arguments “must determine what or theo- squarely tions law enforcement fall supported ries sup- could have ... hearsay]”). within Meeks’s [testimonial decision; ported[] the state court’s fall recorded statement did under the Con then it must ask it possible whether is frontation Clause—his statement was jurists fairminded disagree during made a custodial examination and arguments those or theories are inconsis- bore witness Peak. tent with the holding prior in a decision of Therefore, this Court.” Ibid. if it possi- Next, we must consider whether jurist ble for fairminded to believe that gov trial court’s decision to allow the the state comports court’s rationale play ernment to Meeks’s recorded state holding in Crawford, then we must ment during testimony of Detective deny standard, relief. a very high This is enough Griffin was an error clear to per freely acknowledges. which Court See mit may only relief under AEDPA. We (“If meet, ibid. this standard is difficult to grant habeas relief to Peak if we that find be.”). that is because it meant is to to, the trial “contrary court’s decision was of, or involved an unreasonable requires unavailability

clearly law, Federal established as deter Crawford prior opportunity and a by cross-examine Supreme mined Court of the United for the of testimonial hearsay. States” or use Craw “was based on an unreasonable 68, 124 ford, at determination of the S.Ct. 1354. When light facts trial, presented played evidence that was Meeks’s statement was at the State 2254(d). court proceeding.” Meeks was available and there has been no U.S.C. question The law in must clearly prior opportunity have been for Peak to cross-exam Clearly, established the time the state-court ine him. de- Peak was not “con- Meeks, trial, Meeks’s able to called at that playing with then be not fronted” on put violated witness be the stand for immediate statement Crawford. , See cross-examination. Crawford The crux of the issue is whether (“Testimonial 59, 124 U.S. at S.Ct. 1354 to be called is making a witness available statements of absent witnesses trial from confrontation, in or whether confrontation only have been admitted where the declar take the requires the witness to stead unavailable, ant is where the time, very according to Su stand at the prior defendant has had a opportunity to clearly precedent that was preme Court cross-examine”) added); (emphasis id. at became established when Peak’s conviction (“[T]he 53-54, 124 S.Ct. 1354 Framers an whether open question final.11 It is not have allowed admission of testi would to actu requires confrontation witness monial statements a witness who did not points, At some ally take stand. appear at trial unless he was unavailable equate confrontation seems Crawford added). testify.”) (emphasis So there cross-examination, which would re question to be a seems of whether confron quire put the state to Meeks on the stand tation opportunity demands the to cross- See, e.g., tape played. when the examine the declarant who has been called Crawford, 541 U.S. S.Ct. 1354 by prosecution, merely that (the reliability “commands ... Clause declarant is available at trial to be called in a particular be assessed manner: (cross-)examined. requires This case testing in the crucible of cross-examina question. an answer this The one Su (describ tion.”); 68, 124 id. at S.Ct. 1354 preme discussing Court case this aspect of of a ing as a violation admission testi that was prior decided Crawford petitioner “had monial statement when finality of Peak’s conviction dispel does not her”) no to cross-examine Davis, uncertainty. See 547 U.S. at added). Supreme Another (emphasis (“In 822, 126 Crawford, we held prior case decided to Peak’s case Court Confrontation bars ad [the Clause] final becoming implied also confronta mission of testimonial statements of a wit ability to requires tion cross-examine. trial....”) appear ness who did not Washington, Davis v. See added) (citation (emphasis and internal 822 n. 165 L.Ed.2d omitted). quotation marks (2006) (“The Framers were no more will not, simply had at the time Peak’s ing exempt from cross-examination vol final, clearly conviction became held that testimony open- unteered or answers to ability to immediately cross-examine is questions they exempt than were to ended required by the Confrontation Clause. interrogation.”). answers to detailed However, believe, lan- It also unreasonable as did contains to. Crawford justices guage suggests that confrontation re- at least three on the Court, quires only that the witness be made avail- as well as the trial-court 2101(c) petition (incorporating by 11. A conviction becomes final when a 28 U.S.C. refer- 13(1), Supreme denied the time ence United for certiorari is or when for States Court Rule Therefore, (3)). filing petition elapses. petition a for certiorari Allen v. a because filed 2878, denied, Hardy, rehearing petition 258 n. 106 S.Ct. and the was he (1986). 24, 2006, days August petition 92 L.Ed.2d for a writ had 90 from when 199 A his denied, judgment, petition petition of certiorari from a state criminal to file a for cer- so, therefore, any party petition when has filed a for rehear- tiorari. He did not do and court, ing within in the state must be filed conviction became final on November days petition rehearing Sup.Ct. after the is denied. 2006. See U.S. R. 30. MERRITT, only requires Judge, concurring. Circuit that confrontation judge, available in the be made that declarant agree Judge Boggs’ opinion I with to call for a criminal defendant courtroom in problem case on the AEDPA because argued It can be case. during his own - Fisher, v. Greene the recent case of ability equivalent is to cross-ex this U.S. -, 38, 181 132 S.Ct. L.Ed.2d 336 can, defendant for exam amination. The (2011), Supreme a unanimous Court ob- question in employ leading questions ple, served that the AEDPA standard “is diffi- on direct examination ing a hostile witness meet, purpose cult to AED- because the in cross-examination. just as he could PA is to ensure that federal habeas relief 611(c); United States v. Fed. R. Evid. guard against functions as a mal- extreme (6th Hughes, Fed.Appx. Cir. in justice sys- functions the state criminal 2009). basically, the defendant has More tem, not as a means of error correc- ability had the to confront witness (Internal omitted.) quotation tion.” marks face-to-face, question the witness interpretation This of the AEDPA stan- statement while the about the testimonial appears grant dard much more defer- witness is under oath. ence to state decisions when we review opportu- We are not convinced them under AEDPA than the earlier inter- witness, Taylor, Williams nity opposed pretation to call a which was immediately opportunity to cross-examine worded in terms of “unreasonable” inter- witness, pretation satisfies the Confrontation and not in terms of However, reversing only Clause. we are convinced that “extreme malfunctions possibility justice there for fairminded dis- systems.” is the state criminal issue, clear, agreement on the and under past Court has itself in the com- strident,12 increasingly Court mented on the obscure nature of the lan- AEDPA, Murphy, Lindh v. precedent, required guage is all that is 320, 336, affirm. U.S. 117 S.Ct. 138 L.Ed.2d (1997). Court decisions have varied Ill significantly interpreting this unclear greater text between and lesser deference Because there is room for reasoned to state court decisions. The unanimous agreement with the conclusion of the Ken- Greene decision recent other cases that, tucky Supreme Court in the circum- have now come to an interpretation case, stances of this Confrontation gives AEDPA that much greater deference Clause does require interpretations to state court of the federal cross-examine as soon as an out-of-court constitution. introduced, respect statement we of AEDPA I agree Judge Boggs’ sugges- strictures and AFFIRM the also with petition. denial of Peak’s habeas tion on the merits of the confrontation - See, Fisher, -, e.g., transparently jurist Greene v. that no fairminded 38, 43-44, (2011) decision, agree 132 S.Ct. 181 L.Ed.2d 336 the Sixth Circuit's [its] ("[T]he purpose judgment [granting of AEDPA is to be re- relief] ensure habeas must versed.”); guard Harrington, federal habeas relief functions as a ("A (2011) against extreme malfunctions ... and not as a state court’s that a determination correction.”) (internal quota precludes means of error claim lacks merit federal habeas Dixon, - U.S. omitted); Bobby long jurists tion marks relief so as fairminded could dis- -, 26, 27, agree on the correctness of state court’s (2011) (“Because decision.”) curiam) (internal (per quotation it is not clear marks omit- ted). that the Ohio Court erred ... so trial, Bearden entered into an that a witness Prior to it is doubtful who question: agreement prosecution with- to ready in court for the defendant’s appears subjected possibility being draw the of her to meet the “un- can be said examination sentence, penalty exchange to a death of the test under available” element waiving her Fifth Amendment Sixth Amendment. testifying self-incrimination and alleged her At co-conspirators. CLAY, dissenting. Judge, Circuit trial, contended that intro- Bearden she Amendment Con- Peak’s Sixth Michael Meeks, to Peak and duced Garcia and she irrefutably right was vio- frontation Clause plan knew of murder Garcia and rob testimonial, co-conspirator’s when his lated him a large amount of cocaine. Howev- Peak hearsay accusing confession as the er, although provided she substantial assis- robbery of a triggerman ringleader crime, facilitating tance in she did not played jury was to the lieu and murder actually the crime would anticipate testimony. live co-conspirator’s of the occur. Bearden testified that Importantly, “may that while Peak well majority holds did not witness the murder. she While violation, a constitutional have” suffered Garcia, assumed that Peak killed she she Kentucky Supreme plurality de- admitted that she did not know whether contrary was not ruling cision otherwise present even when Garcia was (Maj. Op. law. clearly established federal Meeks, murdered and she saw 467.) with, Contrary majority’s holding, to the Peak, and not the firearm. plain language if the Sixth Amend- Peak and Meeks both invoked .their law, clearly ment is not established federal right against Amendment Fifth self-in- nothing then is. For this reason and the However, crimination. Meeks had previ- follow, I dissent. reasons ously .police submitted himself to interro- murder,

gation regarding the and the . . Background I. Factual interrogation was recorded. The prose- in- planned play cution the recorded Kentucky tried in Peak was trial; terrogation jury at the al- together alleged court with his two state though containing hearsay, it could be coconspirators, Patrick Meeks and Leann played against permitted by Meeks as Bearden, robbery and for the 1998 murder A(b)(l), of Evidence Rule drug Miguel of a dealer later identified as party as a admission. Peak, Meeks, and Bearden Garcia. be- During interrogation, recorded suspects came in the murder when Mike Meeks admitted that he was involved in Cissell, facing charges who was criminal on robbery and murder and offered de- matter, sought leniency by an unrelated planning tails related to the and execution informing the authorities that he had infor- However, expressly of the crimes. he de- unsolved murder. mation as Garcia’s Garcia, nied that he shot and instead ac- Peak, agreed testify against Cissell being triggerman cused Peak of Meeks, exchange for a and Bearden ringleader conspiracy. prosecution relating special deal with the sought to his involvement the crime. Cissell When the to admit helping dispose -interroga- the three into evidence Meeks’ recorded admitted to tion, objected. body expressly denied assist- Meeks and Peak both Garcia’s Peak, Bearden, that his(cid:127) statements were ing them in the murder. (cid:127)Meeks asserted fatigue, pleaded guilty. given and Meeks all made under duress and concerns, middle took this would resolve Meeks’ Peak interrogation place the 2:03am, (between reminded the trial court that the redaction 1:26 am and night 6:42am). benefit, Peak’s Meeks had been ordered for 6:08am and and between Meeks, so of his by the Meeks’ waiver Fifth tactics used contended the also Amendment did not cure the the viola- and investigators were coercive right. tion of Peak’s Amendment Sixth request despite continued interrogation objections Despite Peak’s numerous He that his attorney. argued thus for an motions exclude the unredacted state- be as unrelia- should excluded statements ment, trial, a new or for bifurcation of knowingly, they were not made ble since trials, the the trial court allowed admission voluntarily. The trial intelligently, interrogation implicating of the unredacted rejected argument. Meeks’ judge court Peak and refused the trials. to sever admis- prevent failed to the After Meeks interrogation Once the unredacted was argued that interrogation, Peak sion of the admissible, permit- court deemed the trial interrogation not be could the recorded prosecution play tape, ted the the in- him, played in totum because cluding Meeks’ implicating statements contemporane- Meeks’ many of confessions Peak, without prosecution calling the Peak, and the ously shifted the blame to Although Meeks to the stand. Meeks had vio- of these statements would admission right, waived his Fifth Amendment Amend- rights late Peak’s under Sixth prosecution never called Meeks interpreted by Bruton United ment, stand, none of the defendants called States, 391 U.S. Meeks, and not to testify Meeks decided (1968), L.Ed.2d 476 and Crawford behalf, conformity own on his with his Washington, original plan. tape Each time the was (2004). court The trial object played, continued to to the agreed that playing with Peak the record- violation of his under rights Sixth interrogation ed would violate Peak’s con- Clause, Bruton, Amendment Confrontation rights. trial court there- stitutional The trial court denied each Crawford. required prosecution fore redact objections. of Peak’s portions all of Meeks’ statement recorded Peak, implicated tape before the Meeks’ recorded statements implicating be admitted. played Peak were jury total three times. The first tape played was man- In accordance with the trial court’s jury during prosecution’s direct date, prosecution portions redacted of a prosecu- examination detective. The interrogation Meeks accused where tion played tape a second time during assisting However, Peak of crime. closing Finally, during statement. jury objected to the Meeks redacted version deliberations, the jury requested to hear tape, because he felt that the redacted the recorded again. jury statements only person version framed Meeks as the brought back into the courtroom and assigned involved in the murder thus once more listened to Meeks’ confession greater culpability him than he felt he implicating Peak. was the piece This Eventually, deserved. jury requested of evidence that hear prosecu- Meeks struck deal wherein the again. or see the entire unre- tion and play would admit dacted version of Meeks’ interrogation Meeks’ recorded statements cru- prosecution’s Meeks would waive his Fifth Amendment cial to the case Peak. right against Although First, only purported eye- self-incrimination. Meeks was the

477 murder, appealed Peak and Meeks their convic- provid- and thus he to the witness directly Kentucky Supreme it testimony that tions eyewitness sole ed the issues, Peak, he, Among Court. other Meeks ar- who shot Garcia. was gued interrogation that his recorded gave and Cissell testi- Although Bearden been, shooter, have excluded from that Peak was the should evidence mony implying because his there- shooting witnessed the unreliable of them statements neither knowingly, credibility impeached intelligently, of both was were not made Second, voluntarily he prosecu- requested and because throughout the trial. any physical lawyer. or forensic The Court re- tion did not admit jected arguments. Meeks’ linking whatsoever the murder evidence Peak to the location where the Peak or Peak the violation of his appealed Con ! Furthermore, transpired. events allegedly plurality jus A right. frontation Clause of by the of events offered wit- the versions basis, on that appeal tices denied his find between greatly, especially differed nesses ing no Clause error and Confrontation testimony and Meeks’ recorded Bearden’s error, stating that even there was an it statements. likely dissenting jus haimless. The disagreed egregious tices and found an aware that itself was prosecution violation of Peak’s Confrontation Clause recorded state- admission of Meeks’ right. This federal habeas action ensued. if not primary, Peak was the ments a conviction only, obtaining means of II. The Amendment’s Sixth Confron- statement, During closing against Peak. tation Clause argued that Meeks’ re- prosecution Purposes Peak statements A. The Confrontation

corded Heightened Peak of the Bruton enough themselves convict Clause also ad- charged crimes. Concerns fact that did jury that the vised Clause, under penned Our Confrontation question to’ the stand to not call Meeks the Sixth Amendment the United States recorded statements meant Meeks’ Constitution, guarantees accusations the truth of the recorded Peak attested to against a criminal defendant can be admit statements. only trial once the -accusers take the ted at the defendant. U.S. jury assigned great- stand and confront Ultimately, This rule back Peak. It convicted Peak Const. amend. VI. stretches culpability est murder, century English law and and convictéd to seventeenth intentional Iowa, empire. Coy mur- the Roman v. charge lesser of wanton even to Meeks of the Meeks received the same 487 U.S. der. Peak and (1988) (“[The murder L.Ed.2d 857 Confrontation respect to their

sentences life, parchment, to us on faded for without comes imprisonment Clause] convictions: traces back to the years. lineage with a possibility parole (in culture.” However, beginnings legal to ten of Western Meeks was sentenced murder, quotation marks omit conspiracy to commit ternal citation years for ted)); 43-45, twenty Crawford, 541 see Peak was sentenced whereas Illinois, 1354; 502 U.S. charge. They were also S.Ct. White years on that 361-62, 736, 116 L.Ed.2d 848 -years robbery for the sentenced to 20 (1992) J., (Thomas, concurring); Mattox years tampering for the charge and States, running all sentences concur- United charge, with (1895). main and es- “The 39 L.Ed. rently. is to se In the landmark case of Bruton v. Unit- of confrontation purpose sential States, opponent cure ed held that the Alaska, Davis v. 415 cross-examination.” credibility truth-telling concerns of the 1105, 308, 315-16, S.Ct. 39 L.Ed.2d 94 U.S. heightened Confrontation are when Clause (1974) (internal quotation citation and 347 the evidence that the seeks to omitted). right of a defendant marks testimonial, hearsay admit is a accusation “not confronted with his accuser is to be defendant, by the a co- against uttered gazing upon of the purpose idle the conspirator in the course of a confession. him, witness, upon by being gazed or of 132, (holding at 1620 that 391 U.S. 88 S.Ct. cross-examination, purpose for the of prejudice by cannot be dispelled “[t]his by cannot had the direct except which be cross-examination the codefendant does of and ob personal putting questions (internal not take the stand” citation omit 316, 94 taining immediate answers.” Id. at ted)); Crawford, see also 541 U.S. at 63- (internal quotation 1105 citation and S.Ct. 65, (refining 124 1354 of scope S.Ct. omitted). marks The Confrontation reiterating Confrontation Clause but prin to root out “the designed Clause was concerns in Bruton related to the admis parte using “ex examinations cipal evil” of accusation); Lil sion a co-conspirator’s the accused.” Michi as evidence - v, ly Virginia, 527 U.S. 116, 132, 119 S.Ct. gan Bryant, -, 131 S.Ct. U.S. (1999) (“[T]he 1887, (2011) 144 L.Ed.2d 117 truth- 1152, 1143, (quoting 179 L.Ed.2d 93 1354) 50, Crawford, 541 U.S. finding at 124 function S.Ct. Confrontation (internal omitted). quotation marks “The uniquely Clause is threatened when an testimony for live is be preference .... accomplice’s in sought confession is to be importance cause of the of cross-examina troduced a criminal defendant tion, greatest legal engine ‘the ever invent without the benefit of cross-examination.” ” White, discovery ed for the of truth.’ 502 Illinois, (quoting Lee v. 530, 541, 476 U.S. 356, 112 at 736 (quoting U.S. S.Ct. Califor 2056, (1986))); 106 S.Ct. 90 L.Ed.2d 514 Green, nia v. 149, 158, 90 399 U.S. Warren, Akins v. 508, Fed.Appx. (1970)). 1930, Specifically, 26 L.Ed.2d 489 (6th Cir.2010) (“A admissions, defendant’s “impress[es] confrontation [the witness] co-defendants, implicating his or her can- with the seriousness of the matter and joint not be introduced at a trial unless the guard[s] against by possibility the lie stand.”). confessing defendant takes the penalty perjury” of a “per well as The rule of “Bruton makes clear that the jury mits is to decide the defen protections of the Confrontation Clause dant’s fate to observe the demeanor' of the are at their zenith whenever ... prose- statement, making witness in his thus aid cution offers into non-testifying evidence a ing jury in assessing credibility.” his hearsay declarant’s confession that names Maryland Craig, 836, 845-46, 497 U.S. partner the accused as his in crime.” (1990) 3157, 110 S.Ct. Basinger, Jones v. 635 F.3d Mattox, (quoting U.S. (7th Cir.2011). This is so because “when Green, 399 U.S. at person one accuses another of a crime 1930) (internal quotation alterations under circumstances in which the declar- Davis, omitted); see also marks another, by ant to gain inculpating stands (noting S.Ct. 1105 that cross presumptively suspect the accusation is examination is “principal means subjected scrutiny and must be believability which the of a witness and the tested”). Lilly, truth of testimony are cross-examination.” Lee, preserve 476 U.S. at a defendant’s (quoting 119 S.Ct. 1887 Confrontation 2056). 541, 106 S.Ct. rights). Clause Because a defendant has to be Language B. The Plain Sixth accusers, prosecu confronted with his Amendment Places with the Prose- consequently tion has burden to con Calling cution the Burden of Accus- requires front the defendant. This ers to the Stand witness, prosecution subpoena 1. The Confrontation Clause Grants prosecution put accusing witness “Right” a Not a Defendants and stand, actually on and that the witness “Privilege” Mere testify. It obligation is not the defendant’s The Sixth Amendment commands: to present prosecution’s witnesses or prosecutions, In all criminal the accused to the prosecution’s cure errors. Bullcom ... enjoy right shall to be confront- 2718; ing, Taylor, 131 S.Ct. 484 U.S. at against him. ed with witnesses 410, 108 Recently, S.Ct. 646. the Supreme language Const. amend. VI. The U.S. premise Court affirmed this basic in Me by founding drafted our fathers and un Massachusetts, v. lendez-Diaz reiterating not be changed since could clearer. that the Confrontation requires Clause passive in the voice: right The is conferred prosecution subpoena to an available affi right a “to be confronted a defendant has ant if it chooses to introduce that affiant’s accusers, merely privi not with” parte against ex testimonial statement a Coy, “to confront” his accusers. lege See 305, 2527, defendant. 557 U.S. 129 S.Ct. 1017, 487 U.S. 108 S.Ct. 2798. “The (2009). 2533, 2542, 174 L.Ed.2d 314 Al language, ... em Confrontation Clause though the defendant also have sub voice, ploying passive imposes a bur affiant, poenaed the the Court held that production prosecution, den of on the carry defendant did not that burden: on the defense.” Thomas v. United (D.C.2006). States, 1, 914 A.2d “The Converting prosecution’s duty under rights defendant’s to be informed of the the Confrontation Clause into the defen- him, charges against to receive a speedy privilege dant’s under state law of the trial, public by jury, a be tried to be Compulsory Process Clause shifts the counsel, assisted be confronted consequences of adverse-witness no- designed with adverse witnesses are shows from the State to the accused. prosecution by regulating restrain fundamentally, More the Confrontation procedures by presents it which its case imposes a prose- Clause burden on the Illinois, Taylor the accused.” v. witnesses, cution to present not on 400, 410, 410 n. 108 S.Ct. bring the defendant those adverse (1988) added, (emphasis 98 L.Ed.2d 798 witnesses into court. omitted) (comparing internal citation this compelling Id. at 2540. I find no distinc- Clause, Compulsory with the Process _ present tion case between and Melen- which, hand[,] ... operates “on other Bringing dez-Diaz. the witness to the exclusively at the defendant’s initiative and if courthouse would mean little the witness provides pre him with affirmative aid in stand, obliged just was not also to take the defense”); senting his Bullcoming see - Mexico, -, putting the witness on the stand means New U.S. 131 S.Ct. (2011) 2705, 2718, 180 lawfully right little if the (holding L.Ed.2d 610 witness invokes that the privilege testify. bears burden to not to required: unavailability law post-dated the common Melendez-Diaz While prior opportunity decision issue for cross-examina- Kentucky Supreme Court (internal here, provide new or novel cita- quotation it did not tion.” marks and omitted)); the Confrontation Clause. Crawford, interpretation tion 541 U.S. at - Pinholster, -, U.S. See Cullen 124 S.Ct. 1354. held that Court has never Andrade, (2011) (citing Lockyer v. testimonial, prosecution may admit a 63, 71-72, 155 L.Ed.2d hearsay accusation the defendant (2003)) (explaining that the reason- pew is seated in a the declarant court decision is to be of a state ableness courtroom, allegedly back of the only against rules existed measured willing testify. has issued). In- at the time the decision similarly never held that a defendant stead, performed a “rather Melendez-Diaz waives his Confrontation Clause if he application of hold- straightforward [the] fails to call an available accuser to the ” merely ing in confirms the Crawford the prosecution’s stand and cure violation the Amendment plain language of Sixth right. of his Confrontation Clause There interpretation by the and its undisturbed way prosecution is one for the to admit but 129 S.Ct. at 2533. It has Supreme Court. testimonial, hearsay into evidence a accu- always been clear that the Sixth Amend- against sation a defendant: una- establish where the prosecution ment is not satisfied vailability of the declarant and show parte via ex presents its evidence testimo- prior opportunity the defendant had a to to nials and waits for defendant sub- cross-examine that witness. Melendez-Diaz) (as in poena the witness Moreover, if the defendant does (as or to call the witness to the stand is bring prosecution’s have the burden to here). The the case Confrontation Clause stand, witnesses to the the defendant can- requires prosecution that the call its avail- rights not be deemed to have waived his able witnesses to the stand to face the failing to do so. The does defendant defendant, simply making rather than duty prosecution’s not have the to cure the witnesses available for defendant to Importantly, Confrontation Clause errors. call. a defendant is deemed to have waived his Exception 2. The Crawford right by pleading Confrontation Clause guilty, stipulating to the admission of evi- has Our heretofore dence, error, to failing preserve procur- prosecution held that where the does not ing unavailability of a witness. See an put directly accuser on the stand to Allen, 337, 342-43, Illinois v. 397 U.S. defendant, may accuse the it admit tes- (1970); Boykin timonial, hearsay accusation Alabama, 238, 243, v. only exception: defendant under one (1969); 23 L.Ed.2d United States unavailable, where the declarant but Cheung, Ya 21- Fed.Appx. Chun prior opportunity the defendant has had a (6th Cir.2009); United States John- to cross-examine the declarant with re- (6th Cir.2006). son, 440 F.3d 845-46 gard to Bryant, the accusation. See (“We prosecution’s If a defendant must call the S.Ct. at 1153 therefore limited the witness, a “catch- he would be faced with Confrontation Clause’s reach to testimoni- 22,” al that in wherein he waives his Confrontation statements and held order for admissible, right prosecu- testimonial if he fails to call the evidence to be the Clause witness, Sixth Amendment demands what tion’s but he also waives his Con- witness, only calls the wit- call the of the right he version frontation Clause prosecution helpful that the finds facts ness. introduced; no compli- its case is there is Prerequisites 3. Constitutional requirements ance with the Con- Language of Support the Plain Clause, prosecution frontation and the Clause the Confrontation possibility avoids the that the witness will permit if we policy, effectively change As a matter of be cross-examined or cross-examination, accusations mere- story response to introduce prosecution having potential present witnesses ly by thereby jeopardize prosecution’s by producing rather than prosecution the courtroom case. The also avoids the re- purposes sponsibility being proponent them as actual witnesses confrontation, only has testimony. witness’ has to lose. gain and the defendant Indeed, case, the prosecution this situation, will be a defendant such likely did not call Meeks the stand hand, one he to make a choice. On forced disputed reliability because Meeks witness prosecution’s call the veracity of his recorded admissions and to ask permitted and be hostile witness likely accusations and would discredit the he would not have leading questions, but prosecution’s By evidence. purporting to immediately cross- had the resolve Confrontation Clause violation following prosecu- examine the witness by merely requiring Meeks accusation,1 and introduction of the tion’s to waive his Fifth Amendment possibility eliciting of he would risk stand, put not him on the the trial court testimony that would not oth- unfavorable to permitted prosecution introduce all In the alter- presented. erwise have been testimonial, hearsay evidence that it native, could decide to avoid the defendant hoped to but avoid the admit introduction by calling risks witness these contradictory any prose- evidence. him forgoing question to to permitted cution should not be resort to instances, many the defen- altogether. opportunistic manipulation. such “The calling will find that the witness is not dant may prose- Confrontation Clause make the risk, as Peak did. worth burdensome, criminals more cution of but prosecution’s approach, right by true of the to trial equally Under is provided is with an over- prosecution jury privilege and the self-incrimi- Melendez-Diaz, whelming advantage. If the defendant 129 at nation.” S.Ct. witness, prosecution avoids its calls the 2540. the Confrontation

responsibility under Right Against 4. Self-Incrimination by putting witness producing Clause of right Fifth and is alleviated of its A defendant’s Amendment him on the stand may self-incrimination also be im- provide to direct examination. burden However, by being forced to plicated chooses not to the defendant the defendant personal putting questions obtaining the witness is called If (internal citation cross-examination fol- immediate answers" and the defendant’s omitted)). lowed, quotation majority testimony presented would be marks requirement immediacy, satisfying the states that there is no Confrontation some immediate, (see Davis, ability requirement. U.S. at to cross-examine be See 415 Clause however, 473-74); 316, Maj. Op. it is notable (holding that the Confron- 94 S.Ct. 1105 "cross-examination, any legal majority not cited au- requires that the has tation Clause thority support except by the direct and that contention. which cannot be had

482 2254(d). Clearly established federal law incrimi expected iswho

call a witness to the holdings, opposed as in order for the defen “refers the defendant nate dicta, decisions Court’s] of his Confrontation of [the avail himself dant to the defendant Because of the time of the relevant state-court right. Clause witness, calling the Taylor, 529 U.S. party be the Williams v. would decision.” easily placed 1495, be 362, 412, could defendant 146 L.Ed.2d 389 120 S.Ct. jury, in front of the position, (2000). clearly untenable contrary A is decision proponent of the wit to be the appearing court law if “the state established federal incrimina testimony up which ends ness’ to that opposite arrives at a conclusion States v. Hub United ting the defendant. Supreme] Court on by [the reached 2037, 36-38, 147 bell, 27, 120 S.Ct. 530 U.S. if the state court decides question of law or (2000) right against (discussing L.Ed.2d on differently than this Court has a case self-incrimination); Schmerber Califor materially indistinguishable facts.” set of 1826, nia, 86 S.Ct. 384 U.S. 412-13, An unrea 120 S.Ct. 1495. Id. (1966). right Neither L.Ed.2d clearly established sonable nor the Confron against self-incrimination occurs where “the state court federal law subordinate to tation Clause governing legal prin the correct identifies can be forced other —such that a defendant decisions ciple [the Court’s] from right in order to assert relinquish one principle unreasonably applies States, the other. Simmons v. United See prisoner’s the facts of the case.” Id. 377, 394, 88 S.Ct. 19 L.Ed.2d Richter, 1495; Harrington v. 120 S.Ct. (1968) com (finding a defendant’s U.S. -, 770, 785, 178 131 S.Ct. - between his Fourth and pelled election (2011). ask whether L.Ed.2d 624 We to be “intoler rights Fifth Amendment jurists disagree” as to “fairminded able”); California, see also McGautha at 786 Harrington, the decision. 183, 213, U.S. Alvarado, 541 (quoting Yarborough v. (1971) (holding that “the L.Ed.2d 711 652, 664, compelling whether question threshold (2004)). that an We are reminded unrea- rights] constitutional the election [between from application sonable of law is different any extent impairs appreciable to an Williams, application an incorrect of law. involved”). policies rights behind the 410, 1495; Harring- 529 U.S. at ton, 131 S.Ct. at 785. Kentucky Plu- III. AEDPA and the rality Decision AEDPA B. Habeas Relief Under Generally AEDPA, A. in Peak’s Case is Warranted

The Antiterrorism and Effective Death right was Peak’s Confrontation Clause (AEDPA), Penalty Act 28 U.S.C. trial, At Peak’s unquestionably violated. 2254, § relief permits grant us to habeas admitted into evidence prosecution judgment “result- only where state court objection played three over Peak’s to, contrary in a that was or ed decision —and non-testifying, co-conspirator’s times—his of, involved an unreasonable hearsay implicating confession testimonial law, clearly federal as deter- established never triggerman. Meeks Peak as by Supreme mined Court of the United stand, in exception took the and the Craw- in a that was States” “resulted decision Meeks was apply did not because based on an unreasonable determination ford prior had not had a available and Peak light presented the facts in of the evidence him. to cross-examine This 28 U.S.C. proceeding.” the State court accusations violation is clear under mits witnesses’ untested constitutional straightforward application simplest, most calling defendant without Clause and of the Confrontation stand, despite witnesses to the the fact as outlined above. jurisprudence, Court that “the present [are] witnesses Lilly, 527 U.S. at 119 S.Ct. 1887 See prosecution’s courthouse under the sub- (“[T]he ac- nontestifying admission of poena” allegedly willing and are able and confession, which shifted re- complice’s *4, testify. Ky: Unpub. Id. at implicated the defendant sponsibility Kentucky LEXIS 128 at *10-11. The Su- ‘plainly triggerman, denie[s] as the preme Court went so far as to hold that right of cross-examination defendant possible conclusion” this situ- “[t]he secured the Confrontation Clause.’” ation is the defendant’s “[Confronta- Alabama, (quoting Douglas tion rights were violated.” Id. at Clause] 415, 419, 85 S.Ct. *5, Ky. Unpub. LEXIS 128 at *12. omitted)). (1965))(internal alteration the fact that While the relevant Coleman violation, Despite this incontrovertible nearly and Peak factual scenarios are iden- Kentucky Supreme plurality yielded tical but different results does not ruled that Peak’s Confrontation Clause necessarily establish un- unreasonableness rights not violated. The 2254(d)(2), § der it flag does a red “raise[ ] unreasonably applied Court thus possible ‘extreme malfunctions Amendment to Peak’s case and Sixth ” justice system.’ state criminal Rice unreasonably legal extended a principle White, (6th Cir.2011). 660 F.3d permits hearsay the use of testimonial prosecution Finally, when the is unable call its one our sister circuits recent- stand, Crawford, see witnesses ly applied to a habeas claim Crawford 42-43, to situations nearly identical to Peak’s claim. See where the is able to do so but Basinger, Jones v. 635 F.3d permitted chooses not to. It also the ad- (7th Cir.2011). Jones, during a defen- non-testifying accomplice’s mission of a murder, dant’s trial for robbery and Peak, implicating contrary confession testimonial, prosecution admitted a hear- Bruton, the rule in 391 U.S. at 88 say accusation of a declarant who had been S.Ct. 1620. Habeas relief is therefore subpoenaed by the prosecution and was warranted under standards set forth testify, calling available to without 2254(d)(1), interpreted by Williams witness to the stand. Id. The court found Harrington, progeny. and and their “no reasonable room for doubt” that the of Kentucky Supreme

Also indicative by Confrontation Clause was violated this Court’s unreasonable of the conduct and that habeas relief was war- Peak’s, Clause in is the Confrontation case error, ranted due to the state court’s clear Kentucky Supreme fact that Court “beyond any possibility for dis- fairminded recently itself reconsidered the issue and agreement,” in permitting such a violation. opposite came to the conclusion. See Cole- 1043, 1052. Id. at Commonwealth, man v. No. 2008-SC-72- sum, Kentucky Supreme Court MR, Ky. Unpub. 2009 WL plurality objectively was unreasonable in 2009). (Ky. LEXIS 128 Oct. The Ken- Amendment, application of its the Sixth tucky majority in Supreme Court Coleman contrary clearly its decision and was correctly held that there is a Confrontation prosecution Clause violation ad- established federal law. where Majori- language, standing alone and as used Specific Problems with C. Kentucky majority, ripped is from its context. Acceptance ty’s of the Su- in Plurality’s language at issue is as preme Decision Court Crawford follows: “the Framers would not have al- old rule that the Despite the centuries lowed admission of testimonial statements put its witnesses on the prosecution must appear did not at trial of witness who stand, majority suggests that it here testify, unless he unavailable to was for a was not unreasonable Su- had a prior opportunity the defendant had interpret preme plurality Court cross-examination,” Crawford, long Clause to mean so Confrontation 53-54, English “[the sitting witnesses are prosecution’s as the admissibility common conditioned law] in the of the courtroom and pew in a back an examination on una- absent witness’s they willing testify, are allege that vailability prior opportunity cross- right to be confronted with his defendant’s examine,” id. prosecu- is satisfied —even accusers statements witnesses ab- “[t]estimonial tion has admitted those witnesses’ untest- only sent from trial have been admitted ed, out-of-court accusations into evidence unavailable, where the declarant calling them to the stand. The without prior where the defendant has had a majority grant would the defendant cross-examine,” opportunity to id. at calling the privilege prosecution’s mere 124 S.Ct. 1354. The crucial be- difference stand, witnesses to the on his own initia- present tween the circumstances of the tive, right, language rather than the holding case and the is that in Crawford Amendment, of the “to be confronted Sixth statements, each of these the Supreme with” those witnesses. This is direct apply- Court frames the test as Crawford plain language contradiction to the ing prosecution to situations where the Sixth Amendment and our was unable to call the witnesses to the II, jurisprudence. Court’s See su- Section stand, not situations prosecution where the pra. was to call the able witness to the stand to, majority simply endeavors to chose not as in the instant explain case. Specifically, irrational decision. the ma-

jority Kentucky Supreme that the believes Furthermore, above, as discussed plurality’s decision not unrea- trial,” plain meaning “appear sonable, although points because “some context, Confrontation Clause must mean equate confronta- [of] seem[ ] brought that the accusers are to the stand Crawford cross-examination[,] ... tion with Craw- by merely and not language suggests also contains they are the courtroom. For a witness ford requires only that confrontation testify to be in the courtroom but not —or witness be made available to be called at for a witness take the stand but refuse to trial, put not that the witness be on the testify render meaningless the de- —would stand for immediate cross-examination.” sign of the to pre- Confrontation Clause 473.) (Maj. Op. proposition at This latter parte vent the evils of the use of ex exami- flatly Although Supreme is incorrect. Bryant, nations the defendant. jurisprudence language Court includes at 131 S.Ct. 1152. It would fail to address trial,” “appears Crawford, such as at see the need for the witness to in be sworn 53-54, 59, 1354; 541 U.S. at 124 impressed S.Ct. with the seriousness of the Davis, matter, cross-examination, 547 U.S. at 822 n. S.Ct. defendant’s (drawing language Crawford), jury’s ability from this and the to decide the witness’ Green, testify, at clarant would but the Chief Jus- 399 U.S. credibility first-hand. 1930; Craig, prior 845- statement 90 S.Ct. tice believed Moreover, the defen- 3157. 110 S.Ct. might be more reliable than the in-court prose- required be to cure dant cannot testimony. failing to call the witness cution’s error of Kentucky, Peak v. Commonwealth of calling the to the stand the defendant J., (Ky.2006) (Cooper, 550-51 S.W.3d asking a hostile witness and

witness as in in concurring part dissenting part). Supreme leading questions, because patently It unreasonable for the was thus language interpreted plain has Court justices Kentucky plurality in the to use providing Clause as of the Confrontation language at trial” footnote “present right privilege. and not a defendant reject plain' language nine to of the 410, Taylor, 484 U.S. at S.Ct. Sixth Amendment. problematic lan- allegedly The other Crawford, which the guage Majority IV. Concurrence explicitly relied Supreme plurality Court Misread Recent decision, similarly taken making its on Increasing Cases as the Level of context. Footnote nine of Justice out of Deference Under AEDPA majority opinion provides, “When Scalia’s for cross-examina- appears the declarant While it is clear that Peak has demon trial, tion at the Confrontation Clause strated his to habeas relief under at all on use of places no constraints the. interpretation even the strictest of AED- testimonial statements.... prior PA, that the judges it is also the case two not bar admission of state- Clause does majority incorrectly interpret here long present as the declarant is ment so cases, Harrington subsequent ed and two Crawford, 541 - explain trial to defend or it.” Fisher, -, Greene v. U.S. 9, 124 That 59 n. S.Ct. 1354. U.S. at foot- 38, (2011), Bobby L.Ed.2d 336 of a discussion of scenarios part note was - Dixon, -, 26, 181 where, actually-put on again, witness (2011) curiam), in- (per L.Ed.2d 328 testify, by the but the stand creasing AEDPA’s deference to state testimony was at reliability of his is- beyond originally required by courts Thus, “present language at trial” sue. Williams. interpretation a new provide did not Williams, Court inter- the admis- permits Amendment that Sixth 2254(d) § language of and out- preted the hearsay when the de- sion of testimonial objective stan- lined an reasonableness in the courtroom' merely clarant is seated 409, 120 1495. It dard. 529 U.S. at The reason- brought to the stand. noted that an “unreasonable” Kentucky Supreme Court’s dis- ing of the different from an “incorrect” federal law is persuasive: on this matter is sent application of federal law. Id. footnote], Scalia was Justice [In (cid:127) supra, discussed the Su- S.Ct. 1495. As expressed responding to concerns Court, in further ex- preme Williams dissenting Rehnquist’s Chief Justice 2254(d)(1) terms. by defining plained reliability of some out- that the opinion Williams, granted we habeas relief After replicat- “cannot be of-court statements situations, finding various in a number declarant testifies to ed even objectively courts’ decisions to be state Obviously, ... matters in court.” same contrary they because unreasonable and Chief Justice both Justice Scalia application an unreasonable that the de- to or involved Rehnquist assuming 486 See, of review and level of deference. See federal law. dard clearly established

of Rice, 249-51, Rice, at 242. 660 F.3d at 254. Our F.3d Circuit e.g., 660 See, doing e.g., has not been alone in so. another involved Harrington Jones, 1044; Vail, Ocampo 635 F.3d at v. Supreme Court. 131 by of AEDPA (9th Cir.2011); 649 F.3d 1098 Elmore v. Harrington cited at The Court S.Ct. 783. (4th Ozmint, Cir.2011); 661 F.3d 783 Guz interpretation Williams Corrections, Sec’y, Dep’t man v. 663 2254(d) that a state § and decided when (11th Cir.2011); Blystone F.3d 1336 v. unaccompanied by relief ex- court denies (3rd Cir.2011). Horn, 664 F.3d 397 Final standard in planation, the reasonableness ly, given the number of AEDPA cases 2254(d) applies still habeas review. by Supreme in recent decided Court explaining at 785. In the course Id. years, it is safe to assume that had the decision, language further cited the Court Supreme sought Court to raise the grant- AEDPA should be that relief under level of given Williams deference to be possibility no ed “where there is fairmind- judgments, state court it would have said jurists disagree the state ed - See, Fields, e.g., v. so. Howes U.S. conflicts with this court’s decision Court’s -, 1181, 1187, 17 132 S.Ct. 182 L.Ed.2d 786; Bobby, at also precedents.” Id. see (2012); Cullen, 1399; at 131 S.Ct. Har (same). 132 S.Ct. at 27 785; rington, 131 S.Ct. at Thaler v. majority interprets Harrington’s - -, 1171, Haynes, U.S. 130 S.Ct. jurists,” reference to “fairminded see 131 1173-74, 175 (2010); L.Ed.2d 1003 Wood setting higher as S.Ct. standard - Allen, -, 841, 849, U.S. objective than the reasonableness standard (2010); Spisak, L.Ed.2d 738 Smith v. But provided Williams. the “fairmind - -, 676, 681, 175 U.S. jurists” originates ed term from Yarbor (2010). In L.Ed.2d 595 none of these Alvarado, ough v. Supreme cases does the Court state that (2004), S.Ct. which overruled; indeed, in Williams is each of objective applies itself Williams’ unreason decisions, Supreme these Court contin- 665-66, standard. ableness ues to cite Williams’ mandates under Importantly, S.Ct. this Court AEDPA. explained, has without contradiction Court, ju majority’s the “fairminded misunderstanding of the just language way rist” another Harrington effect of and other recent phrasing objective analysis. erroneously unreasonableness cases affects its Parker, Wiggins standard. 423 Fed. interpreting Harrington’s ju- “fairminded (6th Cir.2011) Appx. (“Only new, language setting higher rists” review, ‘objectively state court’s decision was un majority standard for AEDPA reasonable,’ Parker, Sanborn v. 629 F.3d holds that because “four such fairminded (6th Cir.2010), only justices if in other jurists’ no disagree” words ‘fairminded could resolve did the Confrontation did, way violated, the case the the state courts Clause was not “com- we are - Richter, U.S. -, Harrington v. pelled” grant deference under AEDPA. 770, 786, 178 467.) (2011), words, may (Maj. Op. L.Ed.2d 624 In other because writ.”). grant we already presume justices We have we are to that the are fairminded, reasons, considered applied following majority AEDPA we must Harrington similarly and have continued to apply conclude their decisions are objective Williams’ unreasonableness stan- fairminded. majority erroneously

The to the 322 n. defers S.Ct. (1979). Kentucky justices’ status Supreme Court already It was existence Su- judges, as state court rather than their preme jurisprudence Court when Williams legal analysis. Though the AEDPA stan- was decided and does not alter Williams’ meet,” “difficult dard Harrington, is objective unreasonableness standard. See majority’s interpretation S.Ct. at Rice, 660 F.3d at 255. Nor does it set meet, impossible makes the standard new, higher standard, some as the concur- no habeas claim would reach our Court event, rence In appears suggest. any jurist unless a to be fairminded presumed interpretation state court’s of the Con- had not once already decided the issue frontation Clause in this case indeed Contrary defendant. Jones, an extreme malfunction. See majority’s argument, ju- the “fairminded F.3d at 1043. Harrington Bobby rist” references conclusion, Supreme subjec- suggest cannot be understood Court plurality’s uphold decision to or, worse, tive test com- reasonableness parte admission Meeks’ ex accusation plete judges. deference to state court Peak, without the prosecution call- majori- level of deference advocated ing Meeks to the despite ability stand ty subverts than rather illuminates the so, to do is both contrary to and an unrea- Supreme as it Court’s standard inasmuch sonable application of the Sixth Amend- essentially would render the Great ofWrit ment jurisprudence, completely meaningless. Habeas Corpus 2254(d)(1), § see 28 U.S.C. because our held, recently “[djespite great As we always has Constitution required pros- adjudica- deference accorded state court bring ecution to accusers to the stand to claims, AEDPA, course, tions of federal Const, face the accused. U.S. amend. VI. ‘stops imposing complete short of bar on majority has also misread recent relitigation federal already court of claims AEDPA jurisprudence to raise bar for Rice, rejected in proceedings.’” state federal habeas relief impossible to an F.3d at 251 (quoting Harrington, 131 S.Ct. height. I would therefore reverse and 786). statutory “Federal courts retain grant writ. authority, constitutional sus- absent writ, pension remedy Given the detentions United States by state protection authorities that violate Court’s steadfast of our federal coun- law, procedural so long try’s as the demands of Sixth Amendment Confrontation Rice, AEDPA are satisfied.” 660 F.3d at I am right, hopeful Clause the Su- preme Court will this matter consider on petition writ of certiorari. Finally, the concurrence upon fixates “extreme malfunctions” language (Con. 474). Op.

Greene.2 lan- That

guage is in Harrington also offered

was lifted from Justice Stevens’ concur-

rence in Virginia, Jackson v. reads, language 'guard against 2. That “We have said that extreme malfunctions in the to, 2254(d)] ‘contrary justice systems,’ [the standard state criminal and not as a of, Greene, involving an unreasonable means of error correction.” clearly (quoting Federal law’ Harrington, established is ‘difficult to S.Ct. at 43 meet,’ 786) (internal purpose quotation because the of AEDPA to alteration and marks omitted). ensure that federal habeas relief functions as

Case Details

Case Name: Peak v. Webb

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 14, 2012

Citation: 673 F.3d 465

Docket Number: 09-5977

Court Abbreviation: 6th Cir.