Billy Ray Robertson v. Warden , 506 F. App'x 951 ( 2013 )

Case: 12-12247 Date Filed: 02/07/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12247
Non-Argument Calendar
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D.C. Docket No. 1:07-cv-00797-RWS
BILLY RAY ROBERTSON,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
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Appeal from the United States District Court
For the Northern District of Georgia
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(February 7, 2013)
BEFORE TJOFLAT, PRYOR and EDMONDSON, Circuit Judges.
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PER CURIAM:
Billy Ray Robertson, a Georgia inmate convicted of felony murder and other
charges in 1993, appeals the denial of his petition for a writ of habeas corpus under
28 U.S.C. § 2254. He argues that the admission, during his state court trial, of
statements given by a co-conspirator to a confidential informant years after the
completion of the conspiracy violated his rights under the Confrontation Clause.
He argues that his co-conspirator’s statements introduced at his trial in 1995
violated his rights under the Confrontation Clause because they were testimonial in
the light of recent Supreme Court precedent.
The Sixth Amendment protects a criminal defendant’s right to confront the
witnesses against him. U.S. Const. amend VI. The Supreme Court explained in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),
that the Sixth Amendment prohibits the introduction of out-of-court testimonial
statements unless the declarant is unavailable to testify and the defendant had a
prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 124
S.Ct. at 1374. The Crawford opinion cited Bourjaily as an example of a case
where non-testimonial statements were properly admitted. Id. at 58, 124 S.Ct. at
1368. In Bourjaily, the Supreme Court determined that a co-conspirator’s
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unwitting statements to an undercover agent were admissible at trial even though
the defendant did not have an opportunity to cross-examine the co-conspirator.
Bourjaily v. United States, 483 U.S. 171, 181-84, 107 S.Ct. 2275, 2782-83, 97
L.Ed.2d 144 (1987).
In United States v. Underwood, 446 F.3d 1340 (11th Cir. 2006), we wrote
that a statement is testimonial if it was made under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial. Id. at 1347. Finding that a declarant made
statements to a confidential informant without the reasonable belief “that his
statement would be available for use at a later trial,” we concluded that the
statements by the co-conspirator to the confidential informant were not testimonial.
Id. at 1347-1348.
Applying Crawford and conducting a de novo review, * we reach the same
conclusion as the district court. The pertinent statements in this case -- whether or
not they met Georgia’s hearsay exception -- were not testimonial. Accordingly,
they were admissible under the Confrontation Clause.
AFFIRMED.
*
The standard of review (that is, whether deference should be given to the pertinent state
decision) to be applied in this case might be debatable. So, we use a de novo standard to give
Petitioner -- for discussion sake -- his best position. A court can reject a petition using de novo
review because any such claim must also fail under deferential review. Berghuis v. Thompkins,
130 S.Ct. 2250, 2265, 176 L.Ed.2d 1098 (2010); Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d
740, 753 (11th Cir. 2010).
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