Juarez v. Nelson , 127 F. App'x 401 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 29 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JAVIER JUAREZ,
Petitioner-Appellant,
v. No. 03-3266
(D.C. No. 02-CV-3125-JAR)
MICHAEL A. NELSON, Warden, El (D. Kan.)
Dorado Correctional Facility; PHILL
KLINE, Attorney General of Kansas,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner-appellant Javier Juarez appeals from the district court’s order
denying his petition for habeas relief filed under 28 U.S.C. § 2254 . We granted a
certificate of appealablility (COA) on a single issue: whether Mr. Juarez’s Sixth
Amendment right to confront his four-year-old victim at trial had been violated by
admission of her hearsay statements through the testimony of her mother and two
police officers, given the Supreme Court’s recent decision in Crawford v.
Washington , 541 U.S. 36 (2004). We exercise jurisdiction under 28 U.S.C.
§ 1291 and 28 U.S.C. § 2253, and affirm.
I
Following a jury trial, Mr. Juarez was convicted in Kansas state court of
aggravated criminal sodomy. His conviction was affirmed on direct appeal and
his subsequent state petition for post-conviction relief was denied. Mr. Juarez
brought a habeas petition in federal district court, asserting violation of his
Confrontation Clause rights. 1
The district court denied the petition.
II
Federal applications for writs of habeas corpus may only be entertained on
the ground that the applicant is “in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(d).
1
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.”
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An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
“When applying the[] deferential AEDPA standards, we review the district
court’s legal analysis of the state court decision de novo . . . bearing in mind that .
. . state court factual findings are presumptively correct and only to be rebutted by
clear and convincing evidence.” Saiz v. Ortiz, 392 F.3d 1166, 1176 (10th Cir.
2004) (internal quotation marks and citations omitted). “To determine the
applicable ‘clearly established’ law [under § 2254(d)], we look to Supreme Court
precedent as it existed when the state court reached its decision.” Brown v.
Uphoff , 381 F.3d 1219, 1224 n.4 (10th Cir. 2004), cert. denied , 125 S. Ct. 940(2005). When the Kansas appellate courts denied post-conviction relief, the
controlling and “clearly established” Supreme Court cases relating to the interplay
between rights under the Confrontation Clause and admission of hearsay evidence
were Ohio v. Roberts , 448 U.S. 56 (1980), and White v. Illinois , 502 U.S. 346(1992).
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III
On appeal, Mr. Juarez first contends that, under Roberts , in order to admit
the victim’s hearsay statements without violating the Confrontation Clause, the
victim had to be unavailable. Based on that contention, he argues that the state
trial court’s finding that the victim was unavailable for trial was an unreasonable
determination and unsupported with evidence under state law because no expert
testimony was presented on the issue. We disagree with Mr. Juarez’s preliminary
contention that a finding of unavailability was required by the Sixth Amendment.
Under Roberts , an out-of-court statement may be introduced against a
defendant without violating the Confrontation Clause if it bears guarantees of
trustworthiness such that “there is no material departure from the reason [for] the
general rule” requiring confrontation. Roberts , 448 U.S. at 65 (internal quotation
marks omitted). In White , the Supreme Court held that the Confrontation Clause
did not require proof of the unavailability for trial of a four-year-old sexual-abuse
victim in order to properly admit her hearsay statements. In so holding, the
Supreme Court recognized that “ Roberts contains language that might suggest that
the Confrontation Clause generally requires that a declarant be produced at trial
or be found unavailable before [her] out-of-court statement may be admitted into
evidence.” Id. at 347. The Supreme Court concluded, however, that such a
reading was too expansive and that “ Roberts [instead] stands for the proposition
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that unavailability analysis is a necessary part of the Confrontation Clause inquiry
only when the challenged out-of-court statements were made in the course of a
prior judicial proceeding.” Id. at 354.
There is no claim that the four-year-old victim’s statements in this case
were made in prior judicial proceedings. Mr. Juarez never challenged the
reliability of the victim’s hearsay statements. Therefore, Supreme Court
precedent at the time the state proceedings concluded did not require a showing of
her unavailability in order to admit her hearsay statements. Accordingly, the
Kansas appellate court’s holding that Mr. Juarez’s Confrontation Clause rights
were not violated is not contrary to, nor is it an unreasonable application of, the
Supreme Court law available at the time of the Kansas decision. Federal habeas
relief is thus unavailable under § 2254(d).
IV
In March 2004, the Supreme Court held that the Confrontation Clause
requires hearsay “testimonial evidence” 2
to be supported by both a showing of
“unavailability and a prior opportunity for cross-examination.” Crawford ,
541 U.S. at __, 124 S. Ct. at 1374. Because the Supreme Court’s decision in
Crawford abrogated, in part, the Court’s prior decision in Roberts , we granted
2
The Court described “testimonial evidence” to apply, “at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” Crawford , 541 U.S. at ___, 124 S. Ct. at 1374.
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COA and ordered supplemental briefing on whether Crawford impacts our
determination of Mr. Juarez’s claim. We conclude that it does not.
After we granted COA and the briefing was completed, we issued our
opinion in Brown v. Uphoff , 381 F.3d 1219 (10th Cir. 2004), cert. denied ,
125 S. Ct. 940 (2005). As mentioned earlier in this order and judgment, we noted
that we must apply the Supreme Court law existing at the time the state court
reached its decision when analyzing the right to federal habeas relief. See id . at
1224 n.4. Thus, although “it is clear that the analytical approach announced in
Crawford is a departure from that articulated in Roberts and its progeny,” and that
Crawford overruled the Roberts’ standards for analyzing a Confrontation Clause
claim when testimonial evidence is involved, id. at 1224, we may not consider
Crawford under the standard of review we must follow in § 2254(d). 3
Further, we also concluded in Brown that, although Crawford “announces a
new rule of constitutional law,” id. at 1226, it “is not a watershed decision and is,
therefore, not retroactively applicable to initial habeas petition[s],” id. at 1227.
3
Thus, although Respondent argues that Crawford is inapplicable because
the victim’s statements were not “testimonial” as defined in Crawford , we need
not analyze the issue because Crawford may not be considered in determining
whether the Kansas appellate court reasonably applied clearly-established
Supreme Court law in the case at bar.
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We AFFIRM the district court’s order denying Mr. Juarez’s petition for
habeas relief.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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