Lor, Zong v. Jenkins, Larry ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2006*
Decided April 26, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3582
ZONG LOR, Appeal from the United States District
Petitioner-Appellant, Court for the Eastern District of Wisconsin
v. No. 04-C-0685
LARRY JENKINS, Lynn Adelman,
Respondent-Appellee. Judge.
ORDER
Wisconsin prisoner Zong Lor filed a petition under 28 U.S.C. § 2254 claiming
that he was denied his Sixth Amendment rights to confrontation and to the effective
assistance of counsel at his trial. The district court denied the petition and Lor now
appeals. We affirm.
Lor was arrested and charged with first-degree murder and first-degree
attempted murder after he participated in a gang-related drive-by shooting. Meng
Vang, a 15-year-old passenger in the car with Lor, testified at a preliminary hearing
that he saw Lor reaching through an open window with a gun in his hand and heard
him say he was shooting at rival gang members. The other passengers denied
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-3582 Page 2
knowing who fired the shots, and the victim and a bystander were unable to identify
Lor as the shooter.
Before trial the state served Vang’s father with a subpoena that identified
Vang by his name and birthdate. The state also contacted Vang by telephone one
week before trial to remind him to appear. During that telephone conversation Vang
stated that he “would probably come with his parents.” But Vang did not show up on
the day of trial. Vang’s father was brought to court and questioned; he said he
showed the subpoena to Vang but did not know his son’s whereabouts. The court
issued a warrant for Vang, but police officers were unable to locate him. That
afternoon, Lor’s counsel stipulated to Vang’s unavailability, and the prosecutor
successfully moved to admit Vang’s preliminary-hearing testimony under Wisconsin
Statute 908.04(1)(e) (outlining hearsay exception where declarant is unavailable). A
jury ultimately found Lor guilty of the lesser-included offenses of being a party to
first-degree reckless homicide and first-degree recklessly endangering safety.
Lor filed a state postconviction motion and presented two claims relevant here:
that admitting Vang’s prior testimony violated his rights under the Confrontation
Clause and that his trial counsel was ineffective for stipulating to Vang’s
unavailability. The trial court denied the motion, and the state court of appeals
affirmed. State v. Lor, No. 00-2724-CR (Wis Ct. App. Aug. 23, 2001) (unpublished
decision). The appellate court reasoned that the state made a good-faith effort to
secure Vang’s attendance at trial, and that Lor’s counsel was not ineffective for
stipulating to Vang’s unavailability. Id. at 4-5. Lor raised only his Confrontation
Clause claim in his unsuccessful petition to the state supreme court for discretionary
review.
Lor filed this § 2254 action after the conclusion of his state-court proceedings,
arguing, as relevant here, that his confrontation rights were violated when the trial
court admitted Vang’s preliminary-hearing testimony, and that his trial counsel was
ineffective for stipulating to Vang’s unavailability. The district court denied relief,
explaining that the state appellate court had reasonably applied the holdings of Ohio
v. Roberts, 448 U.S. 65 (1980), and Barber v. Page, 390 U.S. 719 (1968), in denying
Lor’s confrontation claim. The district court also concluded that Lor procedurally
defaulted his ineffective-assistance claim because he did not include it in his petition
for discretionary review to the state supreme court. The district court later granted a
certificate of appealability solely on the Confrontation Clause claim.
The district court correctly recognized that Roberts and Barber are the
controlling decisions.** Roberts holds that prior testimony may be admitted
**
See Bintz v. Bertrand, 403 F.3d 859, 865-67 (7th Cir. 2005) which holds
(continued...)
No. 05-3582 Page 3
consistent with the Confrontation Clause if the declarant is unavailable and the
testimony is sufficiently reliable, 448 U.S. at 65, and Barber adds that the party
seeking to introduce the prior testimony must have made a good-faith effort to secure
the presence of the declarant, 390 U.S. at 724-25; Lowery v. Anderson, 225 F.3d 833,
839-40 (7th Cir. 2000); Burns v. Clusen, 798 F.2d 931, 937 (7th Cir. 1986). Good
faith, in turn, requires diligent and reasonable measures to obtain the declarant’s
presence. United States v. Reed, 227 F.3d 763, 767 (7th Cir. 2000); Lowery, 225 F.3d
at 840. Here the state appellate court concluded that the prosecution “exerted a good
faith effort” and used “reasonable means at its disposal” to secure Vang’s presence,
and although the court did not cite federal decisions, its analysis tracks the relevant
inquiry under Roberts and Barber.
Lor does not dispute the reliability of Vang’s prior testimony.*** Rather he
argues that the state was compelled to make a greater effort to secure Vang’s
presence for trial because of the seriousness of the charges and Vang’s status as a key
witness. Moreover, Lor contends, Vang’s statement that he “would probably come
with his parents” should have alerted the prosecution that there was a chance he
would not appear. According to Lor, the state should have taken alternative
measures to ensure Vang’s attendance, including warning him of the consequences of
failing to appear, detaining him until trial, assigning police officers to monitor his
movement, or seeking a continuance when Vang did not appear. Lor points out that
other circuits interpret “reasonableness” to require more intensive efforts for serious
crimes or key witnesses, see Cook v. McKune, 323 F.3d 825, 835-36 (10th Cir. 2003)
(Confrontation Clause concerns are heightened and courts insist on greater diligence
by the prosecution where key or crucial witness testimony is involved); McCandless v.
Vaughn, 172 F.3d 255, 266 (3d Cir. 1999) (same), but these decisions simply attempt
to elucidate the “good faith” requirement of Roberts and Barber. Our review,
however, is limited to asking whether the state court’s application of Roberts and
Barber lies “well outside the boundaries of permissible differences of opinion,” see
**
(...continued)
that Crawford v. Washington, 541 U.S. 36 (2004) (holding that earlier testimony is
only admissible if the defendant had a prior opportunity to cross-examine), is not
retroactive.
***
In Roberts, the Court held that reliability is established for confrontation
purposes if the prior testimony would be admissible under a “firmly rooted”
exception to the hearsay rule. 448 U.S. at 66. The “reliability” prong of Roberts was
overruled however by Crawford v. Washington, 541 U.S. 36 (2004). That decision
holds that prior testimony can be deemed “reliable” only if it was given subject to
cross-examination. 541 U.S. at 53-54. We recently held that Crawford is not
retroactive, see Bintz, and so Roberts continues to govern in this case.
No. 05-3582 Page 4
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also 28 U.S.C. § 2254(d)(1),
and we cannot say that the Wisconsin state court’s interpretation of those cases is so
far afield from our own understanding as to be an unreasonable application of federal
law. See Christie v. Hollins, 409 F.3d 120, 125 (2d Cir. 2005) (holding that counsel
was diligent in trying to secure traveling witness where counsel contacted witness’s
parent, agent, and friend.); United States v. Hite, 364 F.3d 874, 882-83 (7th Cir. 2004)
((concluding that talking solely to family members despite other available means to
locate witness was not good-faith effort), vacated on other grounds, 543 U.S. 1103(2005); United States v. Ochoa, 229 F.3d 631, 637-38 (7th Cir. 2000) (holding that FBI
agent’s attempts over several days to locate a witness that involved speaking to his
employer, his landlord, and to others constituted a good-faith effort); United States v.
Pena-Gutierrez, 222 F.3d 1080, 1086 (9th Cir. 2000) (holding that prosecutor who
never tried to contact out-of-country witness despite having his name and address did
not make a good-faith effort). Thus the district court correctly concluded that the
Wisconsin state court did not unreasonably apply federal law.
AFFIRMED.