Malone v. Six ( 2008 )


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  •                                                                           FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    October 31, 2008
    TENTH CIRCUIT                    Elisabeth A. Shumaker
    Clerk of Court
    KERRY MALONE,
    Petitioner - Appellant,                   No. 07-3268
    v.                                              (D. Kansas)
    STEPHEN SIX, Attorney General of               (D.C. No. 06-CV-03073-JAR)
    Kansas,
    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before HARTZ, HOLLOWAY, and ANDERSON, Circuit Judges.
    Petitioner and appellant Kerry Malone appeals the denial of his 
    28 U.S.C. § 2254
     petition for relief following his conviction for aggravated arson. 1 The
    district court denied Malone a certificate of appealability. On May 13, 2008, our
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    1
    Malone has been released from the Lansing Correctional Facility and, as of
    July 16, 2008, has completely discharged his sentence in this case. As a result,
    Warden McKune no longer has responsibility for Malone and this court lacks
    personal jurisdiction over the warden. Malone filed a request to amend the
    parties, which we construed as a motion to dismiss McKune as a party. We have
    accordingly removed Warden McKune as a named party in this case, and the case
    proceeds solely against Mr. Stephen Six, the Attorney General of Kansas.
    court issued an order granting a certificate of appealability on the issue of
    whether Malone’s confrontation clause rights as guaranteed by the Sixth
    Amendment were violated by the introduction into evidence of a statement by a
    material witness not present at trial, and whether, if so, this was harmless. For
    the reasons stated below, we conclude that there was no Sixth Amendment
    violation and, therefore, affirm the denial of habeas relief.
    BACKGROUND
    Malone was in a relationship with and had a daughter with a woman named
    Glenda Sams. Malone and Sams had separated at some time prior to August 1,
    2001. Sams resided in Apartment D of the Wycliff West apartments in Overland
    Park, Kansas. According to Sams, she received a phone call from Malone in the
    early hours of August 1, 2001, during which Malone indicated a desire to reunite
    with her. She testified 2 that she told him she did not love him anymore and hung
    up on him. Tr. of Prelim. Hr’g at 23-24. Later that night, sometime between
    3:00 a.m. and 4:00 a.m., Sams was awakened by a loud noise. She claimed that
    she looked briefly out her balcony window, then went back to bed. Instead of
    calling the police, she waited until 8:00 a.m. to contact the apartment manager.
    The apartment manager directed Sams to call the police. Investigation revealed
    2
    As will be more fully explored, infra, Sams testified at the preliminary
    hearing in this case, but not at the trial. Thus, the testimony referred to is Sams’
    preliminary hearing testimony.
    -2-
    damage to the balcony and adjacent areas, apparently caused by an explosion of
    some kind.
    Overland Park police officer Michele Bregel was dispatched to Apartment
    D, arriving at approximately 9:15 a.m. Sams told the officer about the loud noise.
    Officer Bregel testified that, when she asked Sams “who she believed could have
    caused the damage . . . on her balcony and apartment,” Sams replied, “it was
    Kerry Malone.” Tr. of Jury Trial at 61-62. While Officer Bregel was in the
    apartment “standing right next to” Sams, 
    id. at 66
    , Malone telephoned Sams, who
    answered the phone and told Malone that the police and officers from the Bureau
    of Alcohol, Tobacco and Firearms were at her apartment. Malone hung up. The
    phone rang again, Sams answered the phone, and handed the phone to Detective
    John Sanders, another law enforcement officer in the apartment. The caller then
    hung up. When questioned about the damage to her balcony and the status of a
    pet iguana Sams had, she testified that the explosion had killed the iguana.
    Officer Bregel testified that she saw a live iguana in a terrarium in Sams’
    bedroom. On cross-examination about the phone calls, Officer Bregel answered
    that Sams had said that Malone asked whether Sams was “okay.” 
    Id. at 74
    .
    Officer Bregel also spoke with apartment complex employee Jenny Hintz,
    who received a phone call at about 4:00 a.m. from a tenant, Tony Page,
    concerning a possible explosion. Page testified at trial that he was retired from
    the military after serving for fifteen years. He further testified that his military
    -3-
    experience had given him some familiarity with artillery explosions. Page stated
    that he, along with his family, had pulled into the parking lot of the Wycliff West
    apartment complex at about 4:15 a.m. on August 1, 2001. While he was getting
    out of his car, he heard a loud explosion. Upon hearing the explosion, Page
    apparently saw two people run out from behind the carport, get into a car, and
    drive away. He stated that five to ten seconds elapsed from the time of the
    explosion to his observation of two males running to a car. Page’s wife called
    911 from her cell phone. Page indicated that the two men were Caucasian males
    who appeared to be in their 20's. Page wrote down the license plate number on
    the car, a dark brown or maroon 1980's Buick or Oldsmobile. As it turned out,
    the license number Page saw matched the number on Malone’s car.
    After Page and his family went into their apartment, Page went back
    outside to the area behind the carport and looked to see if anything seemed amiss.
    He indicated he did not find anything out of the ordinary, but did detect the smell
    of gun powder in an area within 250 feet of Sams’ apartment.
    Officer John Friedrich also testified that he was dispatched to Sams’
    apartment on August 1, 2001. When he arrived at Sams’ apartment, he observed
    that the screen door on the sliding door to the balcony was damaged. He further
    stated that it smelled like fireworks in the apartment. Officer Friedrich observed
    some damage to the wall on the outside and the inside of the apartment.
    -4-
    Patricia Benjamin, the property manager for the Wycliff West apartments,
    testified that she was responsible for the maintenance and upkeep of the
    apartment complex. She inspected the balcony of Sams’ apartment, and observed
    visible damage to the balcony, the area around the door, and the wall to the east
    of the patio door. Benjamin observed damage to the inside of the apartment as
    well. In her opinion, an explosion had occurred on the outside of the apartment
    on the balcony. Benjamin also testified that Sams said that Malone was behind
    the explosion. 
    Id. at 115
    . Malone objected on hearsay grounds, but the court
    allowed the testimony in under the “res gestae” exception, noting that Benjamin
    was “the first person on the scene” and “was called by Ms. Sams.” 
    Id.
    Officer James Dawkins, an evidence technician and a member of the bomb
    squad, was also dispatched to Sams’ apartment on August 1. He testified he
    smelled a strong odor of burnt powder like black powder. He saw damage to the
    wall both inside and outside the apartment. Based on the physical evidence,
    including some green fiber which he assumed was a fuse, Dawkins testified that
    he thought some kind of large black powder device or tube that was lit by a time
    fuse had caused the blast.
    Malone was subsequently arrested and charged with aggravated arson. The
    preliminary hearing took place on September 18, 2001. Prior to the preliminary
    hearing, Sams was subpoenaed by an officer slipping the subpoena underneath her
    -5-
    apartment door. She accordingly appeared at the preliminary hearing and testified
    as to the events in the early morning hours of August 1, 2001.
    Trial was set for December 17, 2001. Investigator Matthew Blackwell was
    assigned the task of serving Sams with a subpoena for trial. Blackwell first
    attempted to serve Sams on December 15. He “tried the original address where the
    offense was committed twice” and then “learned from her father that she had
    moved.” Tr. of Mot. to Determine Unavailability of Witness at 4-5. Sams’ father
    indicated he did not know Sams’ exact new address. Blackwell left his pager and
    office numbers with Sams’ father. Blackwell testified he (Blackwell) made no
    effort to find Sams’ phone number or determine precisely her new address.
    When it became apparent that Sams was not present for the December 17
    trial date, the prosecution requested that the court find Sams unavailable or grant a
    continuance. Over defense counsel’s objection, the trial court granted a
    continuance and rescheduled the trial for February 25, 2002.
    On December 19, 2001, Detective Jim Sanders was given the duty of
    subpoenaing Sams for the newly rescheduled trial. The next day, December 20, he
    obtained Sams’ new address and visited the apartment manager of her new
    apartment. The manager “verified that Ms. Sams did, in fact, live there and was
    paying rent.” 
    Id. at 10
    . Sanders knocked on the door of Sams’ apartment, but
    received no response. He recognized a door hanging and floor mat that had been
    -6-
    at Sams’ previous address. He also noted that the mailbox had the names
    “Malone/Sams” on it.
    On December 22, Sanders went to Sams’ father’s house and spoke with
    Sams’ stepmother. She was unable to provide any information about Sams.
    Sanders returned to Sams’ current address on December 24, knocked on the door,
    and called a telephone number he had been given for Sams. No one answered the
    door and Sanders could hear the phone ringing inside, with no answer. On January
    2, 3 and 4, Sanders returned to Sams’ apartment, knocked on the door and called
    her telephone, with no response. Sanders testified that he was “going at different
    times of the day when [he] was making these trips.” 
    Id. at 14
    .
    Upon receiving no response at the door or on the phone on January 4,
    Sanders went to Sams’ sister’s house. Sams’ sister, Becky, indicated that “she
    also had been trying to locate and trying to contact [Sams] and ha[d] not been
    successful.” 
    Id. at 15
    . Becky further stated that “Sams gets depressed and will
    hide in her apartment and not answer the phone or not answer the door.” 
    Id.
    Sanders obtained from Becky the phone number of Sams’ brother, Jerry, whom
    Sanders then contacted and who said he had also been trying to reach Sams but
    was unsuccessful. Jerry also told Sanders that “Malone had bonded out of jail and
    that he felt that Mr. Malone was living back with Ms. Sams again and that’s why
    she wouldn’t answer the door.” 
    Id. at 17
    .
    -7-
    Sanders again attempted contact on January 7 and 10. On at least one of
    these occasions, Sanders’ placed the door mat in such a way that he could
    determine if anyone subsequently entered or left the apartment, and, when he
    returned, he was able to determine that someone had indeed entered or left the
    apartment. Sanders returned once again on February 8, and again received no
    answer when he knocked on the door and called Sams’ phone number. That was
    the last time Sanders attempted to serve a subpoena on Sams.
    On February 15, 2002, the prosecution filed a motion to determine Sams’
    unavailability as a witness. On February 22, the Friday before the Monday trial,
    the prosecution filed an affidavit claiming that it believed Sams was avoiding
    service, and that she was a material and essential witness. The trial court deferred
    ruling on the motion to determine Sams’ unavailability until Monday, the day of
    trial. The court also observed that a material witness bond was appropriate in
    these circumstances. Accordingly, a material witness bond for Sams was issued
    and Sanders was dispatched to enforce the warrant. Sanders once again went to
    Sams’ apartment, knocked on the door and called her phone from the doorstep. He
    received no response. He spoke to a neighbor, who claimed to have seen Sams
    some three weeks prior, and he attempted to contact Becky and Jerry. Becky’s
    phone number had been disconnected and Jerry never returned his call. No further
    attempts were made to contact Sams before the trial commenced on February 25,
    2002, and the material witness bond was never executed.
    -8-
    On February 25, the morning of trial, the prosecution argued “that a finding
    of unavailability for the witness [Sams] is readily apparent.” Tr. of Jury Trial at 7.
    The trial court ultimately ruled as follows:
    [T]he statute speaks clearly of “unavailability.” I think what we have
    here is that we know where she’s at but she won’t come to the door,
    or police ha[ve] been unable to serve her with the subpoena at that
    address, knowing where she’s at.
    Her sister and brother are now apparently not cooperative. Her
    father was never very cooperative in the case, the general indication
    is. It’s similar to what process servers find on a regular basis of
    trying to serve papers on people. People won’t come to the court.
    People will try to avoid service of process. I don’t think that’s the
    same as “unavailability” under the statute. . . . I don’t think she’s
    “unavailable.” I think the necessary effort would have been to sit at
    her apartment, do whatever to get her to a point where you could
    serve that subpoena on her and require her to come to court—or the
    warrant. That was not done.
    Detective Sanders detailed his visits and, generally, briefly he
    would sit out in the car and wait, but with no concerted, long efforts
    to find the witness. Unfortunately, I don’t think that meets the statute
    requirements, so I’m not going to find she’s “unavailable.” So the
    motion to determine she’s unavailable is denied.
    
    Id. at 31-32
    . The prosecution then presented the court with the case, State v. Ford,
    
    502 P.2d 786
     (Kan. 1972), in which a witness was declared unavailable when the
    witness was avoiding being served. In reliance on Ford, the trial court “reverse[d]
    its earlier ruling, [and] . . . f[ou]nd that the witness is unavailable” so that Sams’
    preliminary hearing testimony would be admitted. Tr. of Jury Trial at 42. Sams’
    preliminary hearing testimony was accordingly presented to the jury. In closing
    arguments, the prosecution referred to Sams’ preliminary hearing testimony as
    -9-
    probative that Malone was in fact the perpetrator of the explosion. As indicated,
    the jury convicted Malone of aggravated arson.
    Malone filed a motion for a new trial on May 1, 2002. At the hearing on
    that motion, Sams appeared and responded to why she was not present for the trial
    on February 25, 2002. She said she had never received a subpoena, and therefore
    did not know that she was required to appear at the trial. She specifically stated
    that she was not “trying to avoid the police or service to come to trial.” Tr. of
    Sentencing/Mot. for New Trial at 5. When asked how she knew to appear at the
    motion for a new trial, Sams responded, “Subpoena . . . was taped to my door and
    it was underneath my door. I have two copies.” 
    Id.
     She further stated, “I knew
    about the preliminary hearing, and I knew that because I got the subpoena
    underneath my door. It’s the only way I know.” 
    Id. at 7
    . 3
    Based on Sams’ testimony, and her appearance at both the preliminary
    hearing and the motion for a new trial, Malone asked the court to reverse its
    finding that Sams was unavailable and grant him a new trial. The trial court
    overruled the defense motion, and proceeded to set a sentencing date.
    Sentencing took place on May 30, 2002. Sams appeared at the sentencing
    proceeding, and testified that Malone was not a violent person, that he was needed
    3
    Pursuant to Kansas law, it is a permissible form of service to leave a
    subpoena at the residence of the person to be served and mail a notice to that
    person, indicating that a copy has been left at the residence. See Kan. Stat. Ann.
    60-303(d).
    -10-
    by their young daughter, and that he had never caused any trouble for her or their
    daughter since the balcony explosion incident. Defense counsel requested a
    dispositional and durational downward departure from the sentencing guidelines,
    which was granted. Malone was sentenced to forty-four months’ imprisonment.
    The Kansas Court of Appeals (“KCOA”) affirmed Malone’s conviction and
    sentence. State v. Malone, 
    95 P.3d 1042
     (Table), No. 89439, 
    2004 WL 1878290
    (Kan. Ct. App. 2004). The KCOA held:
    Without deciding the district court erred in the admission of the
    challenged testimony, even a constitutional error may be harmless if
    the appellate court is willing to declare beyond a reasonable doubt
    that the claimed error had little, if any likelihood of changing the
    result of the trial. Based upon the record before this court we so
    declare the claimed error here had little, if any, likelihood of changing
    the result of the trial and the district court did not abuse its discretion
    when admitting the challenged testimony.
    
    Id.
     (citation omitted). The Kansas Supreme Court declined review.
    In Malone’s federal habeas petition, the federal district court determined
    that the issue presented in Malone’s habeas petition was a mixed question of law
    and fact, and therefore not subject to AEDPA deference. Applying a de novo
    standard of review, the district court concluded that Malone had failed “to show
    that he was denied the right to confrontation under the Sixth Amendment.” Mem.
    & Order at *2. The court therefore determined it need not “proceed to review the
    Kansas Court of Appeals’ conclusion that any constitutional error was harmless.”
    
    Id. at *5
    . This appeal from the denial of Malone’s habeas petition followed.
    -11-
    DISCUSSION
    The KCOA determined that any constitutional error in this case was
    harmless beyond a reasonable doubt. That ruling implied that the admission of
    Sams’ confronted pretrial testimony was constitutional error. But the KCOA
    expressly declined to decide the question, stating:
    Without deciding the district court erred in the admission of the
    challenged testimony, even a constitutional error may be harmless if
    the appellate court is willing to declare beyond a reasonable doubt
    that the claimed error had little, if any likelihood of changing the
    result of the trial.
    State v. Kansas, 
    95 P.3d 1042
     (Kan. Ct. App. 2004)(unpublished)(citation
    omitted)(emphasis added).
    Normally we would --
    assess the prejudicial impact of constitutional error in a state-court
    criminal trial under the “substantial and injurious effect” standard set
    forth in Brecht [v. Abrahamson], 
    507 U.S. 619
     [1993], whether or not
    the state appellate court recognized the error and reviewed it for
    harmlessness under the “harmless beyond a reasonable doubt”
    standard set forth in Chapman [v. California], 
    3286 U.S. 18
     [1967].
    Fry v. Pliler, 
    127 S. Ct. 2321
    , 2328 (2007). 4
    4
    If the KCOA had determined that there was no constitutional error, i.e.,
    that the trial court properly ruled that Sams was unavailable within the meaning
    of Crawford v. Washington, 
    541 U.S. 36
    , 59 (2004), we would be reviewing this
    case under standards set out in the Antiterrorism and Effective Death Penalty Act
    of 1996 (AEDPA), to determine if the KCOA's application of Crawford was
    unreasonable or that it was based on an unreasonable determination of the facts.
    
    28 U.S.C. § 2254
     (d)(1) and (2). But, the Court has made it clear that
    [I]t is implausible that, without saying so, AEDPA replaced the
    (continued...)
    -12-
    However, if the question of harmlessness is present here, “so too [is] the
    question of whether there was constitutional error in the first place. After all, it
    would not ‘matter which harmless error standard is employed’ if there were no
    underlying constitutional error,” Fry, 
    127 S. Ct. at 2327-28
    .
    Accordingly, looking past the ruling of the KCOA, we, as did the district
    court, proceed to examine de novo whether the admission at trial of Sams’
    confronted pretrial testimony violated Malone’s Sixth Amendment confrontation
    right. In doing so, we do not defer to the district court’s findings of fact because it
    relied solely on the state court record. Wilson v. Sirmons, 
    536 F.3d 1064
    , 1073
    (10 th Cir. 2008). Rather, we review the state court record de novo. 
    Id. at 1074
    .
    At the time of Malone’s trial, Crawford v. Washington, 
    541 U.S. 36
     (2004),
    had not been decided; but the opinion, issued in March 2004, was published more
    than five months before the KCOA issued its opinion in this case. And, Crawford
    explicated, rather than changed, the Sixth Amendment principles applicable here:
    4
    (...continued)
    Brecht standard of “‘actual prejudice,’” 507 U.S., at 637 (quoting
    United States v. Lane, 
    474 U.S. 438
    , 449 (1986)), with the more
    liberal AEDPA/Chapman standard which requires only that the state
    court’s harmless-beyond-a-reasonable-doubt determination be
    unreasonable. That said, it makes no sense to require formal
    application of both tests (AEDPA/Chapman and Brecht) when the
    latter obviously subsumes the former.
    Fry, 
    127 S. Ct. at 2327
    .
    -13-
    Where testimonial evidence is at issue, however, the Sixth
    Amendment demands what the common law required: unavailability
    and a prior opportunity for cross-examination.
    Id. at 68.
    The parties agree that the only constitutionally significant question before
    us is whether the state adequately proved Sams’ unavailability at trial and, thus,
    whether the state trial judge erred in making a finding of unavailability and
    admitting Sams’ confronted pretrial testimony.
    We have not yet examined the meaning of unavailability under Crawford,
    but our prior cases have held that the issue of unavailability of a witness is a
    mixed question of fact and law that we determine de novo, and its resolution turns
    on the reasonableness and good faith of the state’s effort to obtain the witness’s
    attendance at trial. See Martinez v. Sullivan, 
    881 F.2d 921
    , 926 (10 th Cir. 1989).
    Four criteria are used to assess reasonableness. Cook v. McKune, 
    323 F.3d 825
    , 835 (10th Cir. 2003). First, the court must consider the importance of the
    witness; the more crucial her testimony, the greater the effort required of the state
    to secure her presence at trial. 
    Id.
     Second, the more serious the crime charged,
    the greater the effort required of the state. 
    Id.
     Third, if a witness has a reason to
    favor the prosecution, like an immunity agreement, the accused’s need for
    confrontation is greater. 
    Id. at 836
    . Finally, as a general measure of
    reasonableness, courts can look to whether the state made as great an effort to
    obtain the witness’s presence as it would have if there had been no prior testimony
    -14-
    to substitute for live testimony. 
    Id.
     Only the fourth criterion is at issue here:
    Both sides agree that (1) Sams was a very important witness, (2) the charge faced
    by Malone was serious, 5 and (3) the third criterion is inapplicable. The inquiry,
    then, focuses on the state’s efforts to secure Sams’ presence at trial.
    However, the prospective witness’s own actions may also be weighed as part
    of the inquiry. Thus, a witness may be unavailable when the witness is evasive
    with law enforcement. See Ewing v. Winans, 
    749 F.2d 607
    , 611–12 (10th Cir.
    1984) (holding that the record supported the finding that the witness was
    unavailable when the witness refused to provide the prosecutor contact
    information for her trial appearance, the witness gave the process server an
    address to a vacated apartment, leaving the process server with no additional leads,
    and a police attempt to arrest the witness failed); see also State v. Ford, 
    502 P.2d 786
    , 788–91 (Kan. 1972) (affirming under Kansas law the admission of the
    testimony of a witness not present at trial when the witness evaded service).
    5
    The district judge discounted the severity of the charge, saying that while
    it is “serious,” the “consequences of a conviction are not ‘grave,’ as they would
    be in a capital case,” nor “was petitioner charged with an offense that carried a
    life sentence.” We respectfully disagree with the district judge’s evaluation of
    this factor. The charge to which Malone was found guilty—aggravated arson that
    results in a substantial risk of bodily harm—is a “severity level 3” felony on a
    scale of one to ten, with ten being the least serious type of crime. 
    Kan. Stat. Ann. §§ 21-3719
    (b)(1),-4707(a). Further, although Malone received only 44 months,
    he was 33 years old when he was convicted, and under aggravating circumstances
    it is possible for a defendant to receive more than 40 years in prison for this
    crime. See 
    Kan. Stat. Ann. §§ 21-3719
    , -4704, -4719(b)(2); K AN . S ENTENCING
    G UIDELINES R EFERENCE M ANUAL app. G (2007). The state has conceded that this
    factor weighs in favor of Malone.
    -15-
    The facts regarding the state’s repeated efforts to serve a trial subpoena
    upon Sams have been set out in detail above, and are not in dispute. They show
    tenaciousness and commitment. A state investigator twice tried to serve Ms. Sams
    at the apartment where the offense was committed before learning she had moved.
    Then, a police detective tried Ms. Sams' new address. When she did not answer
    her door, the detective went to Ms. Sams' father's house and spoke with her
    stepmother. The detective then returned to Ms. Sams' current home, this time
    calling her number while he was there. Unsuccessful, the detective returned three
    more times on three different days at three different times, both knocking on the
    door and calling her number, but to no avail.
    Still undeterred, the detective went to speak with Ms. Sams' sister, and
    discovered that Ms. Sams "gets depressed and will hide in her apartment and not
    answer the phone or not answer the door." The detective then contacted Ms. Sams'
    brother, who told the detective that "he felt that Mr. Malone was living back with
    Ms. Sams again and that's why she wouldn't answer the door." The detective then
    returned to Ms. Sams' apartment three more times, still with no success.
    A material witness bond was issued, and the detective was dispatched to
    enforce the warrant. The detective once again knocked on Ms. Sams' door and
    called her phone, with no success. The detective then tried to contact Ms. Sams'
    siblings, but he was unsuccessful.
    -16-
    To sum up, although sliding the subpoena under the door may have been
    wise because it had worked previously to bring Sams to the preliminary hearing,
    there is no indication that the state would have tried this or other methods of valid
    service if they had not already had her preliminary hearing testimony. Rather,
    given the knowledge (through Sams’ brother) that Malone may have been living
    with her, it is less likely that the state would have tried that method again even if
    it lacked Sams’ preliminary hearing testimony because of the possibility that
    Malone would intercept the subpoena.
    The efforts made to obtain Sams’ presence at trial, as demonstrated by the
    numerous attempts to personally serve her and the surrounding investigation of
    how to reach her, were substantial. Further, Sams’ apparent unwillingness to
    answer the door or her phone weighs in favor of finding the state’s efforts to be
    reasonable. See Ewing, 
    749 F.2d at
    611–12; see also Ford, 502 P.2d at 788–91.
    Although this is a close case, we conclude that the state’s efforts pass Sixth
    Amendment muster, and the rulings by the state trial judge and the federal district
    judge that Sams was unavailable were not error.
    -17-
    CONCLUSION
    Accordingly, the judgment of the district court dismissing the petition for a
    writ of habeas corpus is AFFIRMED.
    ENTERED FOR THE COURT
    Stephen H. Anderson
    Circuit Judge
    -18-
    

Document Info

Docket Number: 07-3268

Judges: Hartz, Holloway, Anderson

Filed Date: 10/31/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024