Quinn HAMILTON, Petitioner-Appellant, v. Jack MORGAN, Warden, Respondent-Appellee, 474 F.3d 854

MOORE, J. (pp. 862-69), delivered a separate dissenting opinion. OPINION SILER, Circuit Judge. Petitioner Quinn Hamilton appeals the district court’s grant of

summary judgment in favor of Respondent Warden Jack Morgan (hereinafter “the State”) on his habeas corpus petition, pursuant to 28 U.S.C. § 2254, seeking relief from a state court conviction for armed robbery and evading arrest. Because the decision of the Tennessee courts to allow prior testimony of a witness deemed unavailable for trial was neither “contrary to” nor “an unreasonable application of’ federal law, we affirm the denial of Hamilton’s writ. I. Background In February 1997, Quan Shelton reported to Nashville police that two men robbed him of a gold necklace and $550 in cash.

Detective Shellie Malone, investigating the crime, met with Shelton and took descriptions of the alleged perpetrators. Using those descriptions, she generated from a police database photographs of black males. Shelton failed to identify the older suspect but identified juvenile Mario Woodard. Police subsequently arrested Woodard, who agreed to cooperate. He identified Quinn Hamilton as the other suspect. Based on that information, Detective Malone again met with Shelton and showed him a photographic line-up of six men, which included a photograph of Hamilton. Shelton “immediately” identified Hamilton.

At Hamilton’s preliminary hearing, Shelton testified that he was walking down the street alone when two men accosted him. He stated that a younger man was on a bicycle, but that an older man approached him, put a gun to his stomach, and removed his gold necklace. The older man then reached into Shelton’s pockets, demanded money, and threatened to kill Shelton. Shelton had $550 in cash, which the older man took. Shelton identified Hamilton as the older man, and Woodard as the younger. He also stated that he had joined the armed services and would be reporting for basic training in August 1997.

Later, at a suppression hearing, Shelton testified that, from a photographic lineup, he identified Hamilton as the man who robbed him and that Detective Malone did nothing to indicate Hamilton’s photograph as the man who robbed him. He further identified Hamilton in the courtroom. Hamilton’s attorney was present at both hearings and cross-examined Shelton. In January 2000, a few days before Hamilton’s first trial date, the State filed a motion seeking to declare Shelton unavailable and requesting the court to allow his prior testimony to be admitted at trial.

In support of its motion, the State filed a letter dated January 6, 2000, from Captain Elizabeth W. Watson, Shelton’s company commander. The letter stated that Shelton was at that time stationed in Germany, but had twice been AWOL. For that reason, Captain Watson declined to support his attendance at Hamilton’s trial. In response to the State’s motion, the trial court ordered a transcript of Shelton’s suppression hearing testimony to be prepared. The trial was continued until May 22, 2000.

On April 14, 2000, the State filed a second motion to have Shelton declared unavailable and requesting that his prior testimony be admitted. Attached to this motion was another letter from Captain Watson stating that Shelton would be deploying to Kosovo for six months on April 28, 2000, and that he would be unavailable for trial. The trial court granted this motion and ruled that the State would be able to introduce Shelton’s testimony at the preliminary hearing and at the suppression hearing as substantive evidence at Hamilton’s trial. Again Hamilton’s trial was continued.

A few days before the new trial date of January 8, 2001, the State filed a third motion to declare Shelton unavailable. In relevant part, this motion stated that: 6. Around the beginning of November [2000], Mr. Shelton returned to Germany from Kosovo. He immediately began having discipline problems including being absent-without-leave. 7. From conversations'with Mr. Shelton’s commander prior to the Christmas holidays, the State learned that Mr. Shelton would not be allowed to travel and in fact, did not wish to travel. 8. On January 2, 2001, the State learned that the situation had changed. Mr.

Shelton was willing to travel if he could go through Atlanta, Georgia. His commander stated that he would be allowed to travel, but it was too late for any flights through Atlanta. Since that date, the State has been unable to contact Mr. Shelton. The State respectfully submits that Mr. Shelton is beyond the reach of Tennessee’s subpoena power. Only .by his full cooperation and mature decisions and behavior on his

part could the logistical problem of getting Mr. Shelton to Nashville for this trial be solved. Because of his location and behavior, the problem remains unsolved. The State of Tennessee still wishes to prosecute [the Defendant] and asks that the Court grant this motion. The State presented no documents or evidence in support of the motion. Nonetheless, the trial court granted the State’s motion and admitted Shelton’s prior testimony at trial. On January 8, 2001, Hamilton was tried in Tennessee state court on four charges, including the armed robbery of Shelton.

The State introduced transcripts of Shelton’s prior testimony. Woodard testified that he saw Hamilton holding a gun and saw him rob Shelton. Woodard testified that he was “sure” Hamilton was the robber and denied any participation. Detective Malone testified regarding the police investigation and the results of the photographic line-ups.- The jury returned a guilty verdict on two of the four charges— evading arrest and the armed robbery of Shelton. The court sentenced Hamilton to seven and nineteen years, respectively, to run consecutively, for a total sentence of twenty-six years.

Hamilton timely appealed his- armed robbery conviction, arguing that he was deprived of his federal Sixth Amendment right of confrontation when the trial court declared Shelton unavailable and admitted his prior testimony. The Tennessee Court of Criminal Appeals (TCCA) denied relief. Subsequently, the Tennessee Supreme Court summarily dismissed Hamilton’s petition. Hamilton then filed a habeas petition under 28 U.S.C. § 2254 in the district court, raising the same Confrontation Clause claim.

The district court granted Hamilton permission to serve certain interrogatories and requests for production on the State regarding the “unavailability” question and later to amend the record. The district court denied the petition for habeas corpus, but it granted Hamilton a certificate of appealability on the Confrontation Clause issue. II. Analysis A. Standard of Review We review the legal conclusions of the district court sitting in habeas de novo and the factual findings of both the state trial and appellate courts for clear error. Brumley v.

Wingard, 269 F.3d 629, 637-38 (6th Cir.2001) (internal citations omitted). Because Hamilton’s habeas petition was filed after April 24, 1996, our review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), 1996, Pub.L. No., 104-132, 110 Stat. 1214 (1996). See Calvert v. Wilson, 288 F.3d 823, 827 (6th Cir.2002).

AEDPA provides that a federal court may not grant a petition for writ of habeas corpus unless the state court adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law” as determined by the Supreme Court. Id.; 28 U.S.C. § 2254(d). The issues of the unavailability of the witness and the reasonableness of the State’s efforts to produce the witness are parts of the Confrontation Clause under the Sixth Amendment.

Although our court does not have a published opinion on the standard of review for such a question, other circuits have held that these questions are mixed questions of law and fact and reviewed de novo. See, e.g., Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir.1999)(en banc); McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir.1999). We, therefore, adopt that standard. B. The State’s Efforts to Procure Witness Shelton for Trial Were Reasonable The threshold issue for consideration is Hamilton’s complaint that the State did not make a good faith effort to obtain Shelton for trial.

Hamilton primarily points to the State’s third motion to declare Shelton unavailable, which was based on the prosecutor’s conversations with Shelton’s commander revealing that Shelton would not be allowed to travel due to discipline problems and that Shelton did not desire to travel, and to information developed on January 2, 2001, that Shelton was willing to travel to the United States, but only if he were routed through Atlanta. The Confrontation Clause of the Sixth Amendment strives to ensure that a criminal defendant may have a jury assess the prosecution’s witnesses “face to face.” Mattox v.

United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895); U.S. Const, amend. VI. (“[I]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”). Thus, the prosecution may not substitute former testimony for live testimony unless the government first demonstrates that the witness remains unavailable for trial proceedings. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The unavailability exception contains two requirements. First, the exception mandates that the witness’s testimony was given at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. Crawford, 541 U.S. at 54, 124 S.Ct. 1354 (“[T]he common law in 1791 conditioned admissibility of an absent witness’s examination on ... a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates [that] limitation[ ].”).

Second, a witness cannot be deemed unavailable for purposes of the exception unless the government has made a good faith effort to obtain her presence at the trial proceedings. Roberts, 448 U.S. at 74, 100 S.Ct. 2531. Roberts further refined the good faith standard, explaining that good faith efforts are context-specific: The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists ... “good faith” demands nothing of the prosecution.

But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. The lengths to which a prosecution must go to produce a witness is a question of reasonableness. The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evi-dentiary proponents, the prosecution bears the burden of establishing this predicate. Id. at 74-75, 100 S.Ct. 2531 (internal citations and quotations omitted).

If the desired witness is beyond the subpoena power of the trial state but an established procedure of voluntary cooperation exists, then the government must go to reasonable lengths to utilize that procedure to locate, contact, and arrange to reasonably transport the witness. Barber v. Page, 390 U.S. 719, 720, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), considered the constitutionality of the trial court’s admittance of preliminary hearing testimony of a witness who at the time of trial was incarcerated in a federal prison in Texas.

The state in Barber made no efforts to procure the witness for trial after ascertaining that he was in a federal prison outside Oklahoma, the prosecuting state. Id. at 723, 88 S.Ct. 1318. Although the previously accepted rule was that confrontation is unnecessary if a witness — outside the jurisdiction of the trial court — could not be compelled to trial, the Court discredited that view. Id.

It noted that a federal statute grants federal courts the power to issue writs ad testificandum at the request of state prosecutors, and that the United States Bureau of Prisons permits federal prisoners to testify in state court criminal proceedings pursuant to writs ad testifi-candum issued out of state courts. Id. at 724, 88 S.Ct. 1318. The state prosecution’s failure to pursue the witness was unreasonable, because “the possibility of a refusal is not the equivalent of asking and receiving a rebuff.” Id. (internal citations and quotations omitted).

Thus Barber held that “a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the pros-ecutorial authorities have made a good-faith effort to obtain his presence at trial.” Id. at 724-25, 88 S.Ct. 1318; see also Brumley, 269 F.3d at 641 (finding a lack of good faith where the prosecution failed to utilize the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings to secure a witness housed in prison in a different state).

If, however, the witness is beyond the subpoena power of the prosecuting state and no established means of communication and voluntary cooperation exist for procuring the witness, the government arguably need not even seek a rebuff. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). In Mancusi, a victim who testified at the first trial left the country and became a permanent resident of Sweden. At the.second trial, the state issued a subpoena to the victim’s last known address in Texas.

Mancusi compared the availability of procedures and policies detailed in Barber allowing state prosecutorial authorities to compel the attendance of witnesses residing in other states with the lack of availability of such procedures for witnesses living in other countries. Id. at 212, 92 S.Ct. 2308. Because no such procedures existed, the Court stated that “Tennessee ... was powerless to compel his attendance ... either through its own process or through established procedures.” Id. Considered in toto, the relevant evidence supports a finding of reasonableness with respect to the prosecution’s efforts.

First, Hamilton does not identify any previously established means of procuring Shelton to testify at trial, unlike the statutory procedures available to the state in Barber and Brumley. In contrast to the witness in Barber, Shelton was serving in the army overseas; he was not incarcerated in a federal prison in a different state. Therefore the available statutory procedures for securing incarcerated witnesses for trials in other states do not apply to Shelton.

Moreover, besides the “procedure” of contacting Shelton’s commanding officer in Germany and requesting Shelton’s presence at trial, neither Hamilton nor the State identifies any predetermined policies or procedures that the State could — or should — have utilized to bring Shelton to Tennessee for Hamilton’s trial. Second, the State worked diligently to produce Shelton, right up until the time of trial. On January 2, 2001, the prosecution learned that Shelton was willing to travel if he could go through Atlanta, Georgia.

However, Shelton’s commander advised that it was too late to arrange any flights for Shelton from Germany through Atlanta in the days remaining before trial. Hamilton insists that the State unreasonably abandoned its efforts to arrange Shelton’s presence after Shelton agreed to travel to the United States.

He avers that rather than investigating commercial flights and travel plans that would include a layover in Atlanta, the State “gave up.” He argues that a number of possible explanations that the State might offer for failing to produce Shelton at trial — inter alia, that the expense of last-minute international travel was prohibitive, that Shelton’s condition on flying through Atlanta constituted a rejection of the State’s offer, or that the prosecutor was not responsible for the lateness of his efforts because he had been informed previously that Shelton would not be able or willing to travel to trial — are excuses concocted to obscure the State’s failure to take the steps necessary to protect Hamilton’s constitutional rights.

However, this argument lacks a factual basis and thus amounts to no more than mere speculation. Indeed, the record reflects that the State did not abandon its efforts; rather, the State continued to attempt to reach Shelton throughout the week leading up to Hamilton’s trial but was unable to speak with him before the trial date. Moreover, the motion by the State averred that it was too late to arrange “any flights through Atlanta” prior to trial.

As the TCCA found, the State’s efforts here were reasonable, based in part on the steps taken to secure Shelton months in advance of the trial. , Those efforts were thwarted: first, by Captain Watson’s refusal to permit Shelton to travel to the United States to testify due to his previous discipline problems and absences without leave; and second, by Shelton’s deployment to Kosovo for six months. The State’s first two motions to declare Shelton unavailable were accompanied by letters from Shelton’s commanding officer indicating the difficulties with securing his presence at trial.

This evidence buttresses the State’s position, despite the absence of evidence submitted to the trial court in support of its third and final motion to admit Shelton’s prior testimony. See United States v. Sindona, 636 F.2d 792, 804 (2d Cir.1980) (“Although it would have been preferable to present the court with affidavits, the fact that trial counsel for the Government presented the factual situation orally is not fatal. It is proper for the court to accept, in its discretion, the representations of counsel with respect to the availability of a witness.”).

For these reasons, the TCCA correctly concluded that the State went to reasonable lengths to secure Shelton’s presence at Hamilton’s trial. C. The State Appellate Court Did Not Err in Finding the State’s Efforts Reasonable Hamilton next argues that the TCCA erred in ruling that the State satisfied its obligations of good faith and reasonableness in attempting to arrange for Shelton’s trial appearance.

He complains that the TCCA summarily concluded that Shelton was unavailable because his commanding officer asserted he would return to Germany after his tour of duty in Koso-vo, and because Germany was beyond the subpoena power of the , Tennessee criminal courts. Hamilton asserts that this conclusion runs “contrary to” the law as established by Barber and Roberts because, in his view, there was an established procedure for procuring Shelton’s voluntary cooperation. As discussed above, however, no established procedure akin to those of Barber and Roberts existed in this case.

The prosecutor, on his own, initiated contact with Shelton and his commanding officer in Germany to obtain their cooperation, which was not forthcoming. Rather, the findings of the TCCA are germane to the issue of unavailability because they relate to the absence of an established procedure for obtaining Shelton’s cooperation. The district court properly found that the TCCA’s decision was not contrary to nor an unreasonable application of the governing federal law, even considering the supplemental information added to the record before the district court. AFFIRMED. .

These facts were taken from the State's third motion to declare the witness unavailable and to use his former testimony at trial. The dissent relates several more detailed facts, which have been discovered through the interrogatories before the district court on the petition for a writ of habeas corpus. Although the recitation of some of the facts by the dissent are not erroneous, they were not facts which were known to the Tennessee courts when they made their decisions.

Some of the facts which subsequently were produced in the district court through the interrogatories are of some use in buttressing Hamilton's case, and other facts are useful in supporting the position of the State that it proceeded in good faith. For example, the motion to declare the witness unavailable did not relate that the prosecutor had spoken to Shelton on January 2, 2001, although the interrogatoiy indicates that the prosecutor had talked to Shelton on that date.

However, the interrogatory also shows that the prosecutor attempted to reach Shelton through the rest of the week up to the time of the trial, but was unsuccessful in doing so. Likewise, the prosecutor indicated in his interrogatory that he attempted to reach Shelton's commander through the rest of the week but was unable to talk to him before the trial. . This fact was developed through the interrogatories in the district court.

The Tennessee trial court apparently did not know that the State had continued to try to reach Shelton and his commander between January 2, 2001, and the trial date, January 8, 2001. .The dissent correctly quotes the decision of the TCCA when it said: “Proof of the witness’s unavailability must consist of more than the prosecutor’s own statements to the court.” Nevertheless, the TCCA considered the prosecutor’s statements in his motion to declare the witness unavailable plus previous statements and letters which had been filed on the prior dates on which the trial was set.

It was up to the Tennessee courts to determine the type of proof or statements required to carry the State’s burden of proof under the criteria from Ohio v. Roberts, 448 U.S. 56, 75, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The dissent criticizes the TCCA for not having followed the burden of proof requirement from Roberts. Although the TCCA did not cite that case, nevertheless, upon a full reading of the opinion, it is clear that the court properly placed the burden on the prosecution to show the unavailability of Shelton. .

In Roberts, the prosecution issued five subpoenas to the desired witness at her parents' home, located within the state of Ohio. 448 U.S. at 75, 100 S.Ct. 2531. .

At oral argument, counsel for the defendant noted that the Walsh Act of 1964, 28 U.S.C. § 1783, literally permits a United States court to order the issuance of a subpoena to a necessary witness in a foreign country: A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner. 28 U.S.C. § 1783(a).

However, the applicability of this act was not raised prior to oral argument; thus, we deem the issue waived. See Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir.1996) ("We normally decline to consider issues not raised in the appellant's opening brief.”) (internal quotations and citation omitted).