Willie Brumley v. Curtis Wingard , 269 F.3d 629 ( 2001 )

MOORE, J., delivered the opinion of the court, in which COLE, J., joined. ROSEN, D.J. (pp. 647-72), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

In this habeas case, Warden Curtis Win-gard (hereinafter “the State”) appeals an order denying post-judgment relief from the district court’s order granting habeas petitioner Willie Brumley relief and directing the State to retry Brumley for complicity to commit aggravated murder. We AFFIRM the district court’s denial of the State’s post-judgment motion. We hold that the district court did not abuse its discretion in denying the State’s motion for post-judgment relief because the district court had already considered and rejected the arguments raised in it. In addition, we hold that the district court did not err in granting Brumley habeas relief, because the state trial court’s admission of videotaped deposition testimony, without a showing of the witness’s unavailability, was contrary to and/or an unreasonable application of clearly established Supreme Court precedent.

I. BACKGROUND

In 1989, Willie Brumley was convicted by a Portage County, Ohio, jury of complicity to commit aggravated murder with two death penalty specifications and kid-naping in connection with the 1984 abduction and murder of Becky Knapp. Brum-ley was sentenced to life.in prison with parole eligibility in thirty years on the complicity to commit aggravated murder count and to a maximum of twenty-five years on the kidnaping count; the sentences were to run consecutively.

After exhausting his state appeals, Brumley filed a federal application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on October 21, 1997. The habeas petition was transferred to Magistrate Judge Vecchiarelli for a report and recommendation. Brumley raised only one ground for relief in his federal habeas petition, a Confrontation Clause claim. This claim was described in the following way in his habeas petition: “Trial court permitted State to enter videotape deposition of Tony Kirklin, at the time incarcerated in an Arizona state correctional facility, in lieu of live-in-court testimony. Trial court found Kirklin ‘unavailable’ and thus testimony admissible.” Joint Appendix (“J.A.”) at 11.

Tony Kirklin (“Tony”) was the brother of Delmar Kirklin (“Delmar”), the individual charged with the murder of Knapp. Tony was a passenger „in the car Delmar was driving on the day of the murder, as were Brumley, Kevin Davis (“Davis”) (a half-brother of the Kirklins), and Marty Marshall. Tony witnessed the events leading up to the shooting of Knapp by Delmar, including the shooting itself. At the time the State was preparing to try Delmar and Brumley separately in 1989, Tony was incarcerated in an Arizona state prison, having been convicted of cocaine possession in the intervening years. The State thus provided for Tony to be transported from Arizona to Ohio to testify against his brother, Delmar. Delmar’s trial had been scheduled before Brumley’s, but Delmar pleaded guilty shortly before his trial.

The prosecution then moved the trial court, pursuant to Ohio Crim. R. 15¹ and Ohio Rev.Code § 2945.50,² to allow them to depose Tony, on videotape, with Brumley and his counsel present. The prosecution offered three reasons for videotaping Tony’s testimony at that time. First, the prosecution pointed to the difficulty of the procedures involved, which would require another Arizona state court order before Tony could be transported a second time. Second, the prosecution pointed to the expense of transporting Tony a second time. Third, the prosecution raised the concern that Tony could be released on parole before the trial of Brumley took place, and thus that Tony would be beyond the subpoena power of the State when his testimony would be needed. The state trial court granted this motion over the vigorous objections of Brumley’s defense counsel. The prosecution deposed Tony, on videotape, on April 28,1989.³

Tony testified that he had been a passenger in Delmar’s Grand Prix when Delmar picked up Becky Knapp, who was hitchhiking at the time. Delmar eventually drove the Grand Prix to the end of a dead-end road, where everyone but Brum-ley and Knapp exited the car. Brumley and Knapp were alone in the backseat of the Grand Prix for around twenty minutes, according to Tony; after Brumley exited, Delmar entered the Grand Prix, where he and Knapp were alone for around twenty minutes. After that interval, Delmar and Knapp exited the Grand Prix. Knapp walked to behind the car — where Brumley, Tony, and the other men were standing— and squatted down as though to urinate. At that time, Tony testified that one of the men said that Knapp had seen “too much,” referring to the Grand Prix’s license plates. J.A. at 87. According to Tony, Delmar said that Knapp had to die because she had seen the Grand Prix’s license plates. Delmar and Brumley discussed what was going to happen to Knapp, and then the men got back into the Grand Prix. Knapp did not re-enter the vehicle.

At that time, according to Tony’s deposition testimony, Brumley produced a revolver and pointed it out the window of the Grand Prix at Knapp. After holding the revolver on Knapp for a few seconds, Brumley handed the revolver to Delmar and told him to kill Knapp. According to Tony, Brumley said, “You waste her.” J.A. at 90. Delmar then exited the Grand Prix, walked over to Knapp, pointed the gun at the side of her head, and fired three shots, according to Tony. Tony testified that he witnessed the first shot; he also testified that before the shooting began Davis exited the Grand Prix and started running away from the scene. Delmar and Brumley then loaded Knapp’s body into the trunk of the Grand Prix. The men drove to a secluded spot, where Delmar and Brumley carried the body into the woods. (Knapp’s body had not been recovered at the time of Brumley’s trial, despite searches in the area Tony described; it has subsequently been recovered.) During the deposition, Brumley’s counsel made objections for the record and cross-examined Tony.

At trial, the prosecution moved to present the videotaped deposition, pursuant to Ohio Crim. R. 15(F), because Tony was out of the state. In the meantime, the deposition had been “cleaned up,” i.e., all the objections and rulings had been removed. The prosecution at that time stated for the record that it had contacted the Arizona authorities the previous week, that those authorities had confirmed that Tony was still incarcerated in Arizona, and that he would remain incarcerated for the near future. The prosecution reiterated that “the State had gone to great trouble and expense to obtain” Tony’s deposition testimony when he had been brought to Ohio for his brother’s trial and that it was complying with the relevant Ohio statutes. J.A. at 1671. The prosecution also pointed to the defense’s cross-examination of the deponent as support for the admissibility of the videotaped deposition.

The trial court granted the prosecution’s motion on the basis of Ohio Crim. R. 15 and Ohio Rev.Code § 2945.50. Defense counsel objected, preserving its arguments for appeal. The trial judge overruled these defense objections. The jury then viewed the cleaned-up version of the videotaped deposition, which included the testimony summarized swpra.

The trial testimony of two other prosecution witnesses is important to this appeal. First, another passenger in the Grand Prix, Davis, testified to what he saw the day of the murder; but because Davis exited the Grand Prix and ran away before the shooting, he was not an eyewitness to the events that occurred after Brumley produced the revolver. Davis did hear shots fired, however. Moreover, the prosecution also produced witness Donald Sanders, who had been in prison with both Delmar and Brumley. Sanders testified to incriminating statements Brumley made while in prison.

After his conviction, Brumley pursued his appeals in state court, filing thirty-six assignments of error with the Eleventh District Court of Appeals. He preserved his Confrontation Clause claim by raising it before that court. The state appellate court denied his appeal on this issue, holding: “Specifically, this court concludes that the state is not required to demonstrate the ‘unavailability’ of the witness, as that term was defined ... in Roberts. Instead, in addition to showing the reliability of the deposition, the state must only show the existence of one of the circumstances set forth in Crim.R. 15(F).” J.A. at 439 (footnote omitted). Because Tony was incarcerated in Arizona at the time of Brumley’s trial, the requirements of Ohio Crim. R. 15(F) had been satisfied. The state appellate court reached this conclusion based in large part on the special nature of videotaped testimony as opposed to written transcripts: “[S]ince a videotaped deposition gives the jury the opportunity to consider the witness’ physical demeanor in determining his credibility, it comes the closest to approximating the circumstances under which actual live testimony is given.” J.A. at 438-39. This holding, however, was limited to cases in which the videotaped deposition “was taken for the specific purpose of using it in lieu of ... live testimony at trial.” J.A. at 436. The Ohio Supreme Court declined to hear Brumley’s appeal.

Magistrate Judge Vecchiarelli issued a report and recommendation on November 19, 1999. The magistrate judge concluded that Brumley’s confrontation rights had been violated by the admission of Tony’s videotaped testimony without a showing that Tony was unavailable in the constitutional sense. Specifically, the magistrate judge reasoned that “the state court disposed of the requirement of unavailability, merely stating that Supreme Court case-law did not apply because ... the videotape was reliable. However, the Supreme Court has never indicated, or even suggested, that a videotape, or any other medium ... is admissible simply because it is reliable.... ” J.A. at 3684. Moreover, the magistrate judge concluded that Tony was not unavailable in the constitutional sense. Finally, the magistrate judge concluded that the admission of the videotaped deposition was not harmless error: “Without Tony Kirklin’s testimony, a reasonable jury could not convict Brumley of complicity to commit aggravated murder.” J.A. at 3687. Judge Vecehiarelli thus recommended that Brumley’s habeas petition be granted with respect to Brumley’s conviction for complicity to commit aggravated murder, that the conviction be vacated, and that the State be directed to retry Brumley on that charge within a reasonable time. The magistrate judge did not recommend, however, that the district court vacate Brumley’s kidnaping conviction, as the record without the constitutionally inadmissible videotape adequately supported that finding.

Objections to the report and recommendation had to be filed within ten days. Brumley filed his objections, but the State ^failed to do so. District Judge Polster issued an order and memorandum opinion on January 19, 2000, adopting Judge Vec-chiarelli’s report and recommendation in full. Judgment was entered, in compliance with Fed.R.Civ.P. 58, on January 19, 2000.

On January 27, 2000, the State filed a motion for relief under Fed.R.Civ.P. 60(b)(1), claiming surprise as a result of the district court’s entry of judgment. The State claimed to have never been served with a copy of the magistrate judge’s report and recommendation and thus had been unaware of the need to file its objections. The State explained that when the district court substituted Warden Khelleh Konteh for Warden Curtis Win-gard as respondent on the docket, counsel for the State had been mistakenly terminated as counsel of record at the same time. This substitution/termination apparently occurred on October 5,1999.

On February 4, 2000, Judge Polster granted the State’s motion to permit it to file objections to the magistrate judge’s report and recommendation; in doing so, the district court treated the State’s motion as a motion for reconsideration of the judgment entered on January 19, 2000. On February 11, 2000, Brumley, through counsel, objected and moved that the district court reconsider its order granting reconsideration. The State filed its objections to the magistrate judge’s report and recommendation on February 17, 2000. In its memorandum, the State reiterated its position that the admission of Tony Kirk-lin’s videotaped deposition did not violate Brumley’s confrontation rights. , Moreover, the State reiterated its argument that, even if the admission of the videotape violated Brumley’s confrontation rights, the error was harmless. Brumley responded to the State’s objections, arguing that the State had not demonstrated grounds for relief under Rule 60(b)(1).

The district court issued its order on March 23, 2000, again adopting the magistrate judge’s report and recommendation. The district court denied the State’s motion for relief from the earlier judgment. Thus, the district court held that Brumley was entitled to a new trial on the complicity to commit murder charges but that he was not entitled to relief on the kidnaping conviction. In addition, the district court held that Brumley’s motion opposing reconsideration was moot. The State filed a timely notice of appeal on April 18, 2000.

II. ANALYSIS

A. The State Is Not Limited to Appealing the District Court’s Denial of Its Motion for Relief Under Rule 60(b)(1).

As a threshold matter, we must resolve whether'the State is improperly arguing the merits of Brumley’s habeas petition in this appeal. Brumley argues that the State is only able to appeal the district court’s April 2000 order denying the State’s Rule 60(b) motion for relief from judgment because the State did not file a timely notice of appeal from the district court’s judgment on the merits, which was issued on January 19, 2000. Rather than filing a timely appeal of that judgment, the State moved for relief under Rule 60(b); this motion was subsequently denied.

We will treat this case as an appeal of both the district court’s denial of the State’s Rule 60(b)(1) motion and the district court’s final judgment. The State did not file a notice of appeal of the district court’s order granting habeas relief in January 2000. Instead, the State filed a Rule 60(b) motion for relief within ten days of the district court’s final judgment; this tolled the time for the filing of an appeal. See Fed. R.App. P. 4(a)(4)(A)(vi). Within thirty days of the denial of that motion, the State filed a notice of appeal “from the final judgment entered ... on the 23rd day of March, 2000.” J.A. at 3778. That judgment included both the denial of the State’s Rule 60(b)(1) motion and the granting of Brumley’s habeas petition on his conviction for complicity to commit aggravated murder. Thus, we read the State’s notice of appeal broadly to include the district court’s final judgment on the merits of Brumley’s habeas petition.

B. The District Court Did Not Err in Granting Brumley Habeas Relief.

1. The Admission of the Videotaped Deposition, Without a Finding that Tony Was Unavailable in the Constitutional Sense, Was Contrary to Clearly Established Supreme Court Precedent.

(a) Standard of Review

We review de novo the legal conclusions of the district court sitting in ha-beas. Palazzolo v. Gorcyca, 244 F.3d 512, 515 (6th Cir.), cert. denied, — U.S. -, 122 S.Ct. 68, — L.Ed.2d - (2000). Because Brumley’s habeas petition was filed after April 24, 1996, it is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant to AEDPA, habeas corpus relief is available with respect to claims adjudicated on the merits in state court only if the adjudication:

(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.

28 U.S.C. § 2254(d)(1)-(2). Moreover, the findings of fact made by a state court are presumed correct and can only be contravened where the habeas petitioner can show by clear and convincing evidence that the state court’s factual findings were erroneous. 28 U.S.C. § 2254(e)(1). This presumption of correctness also applies to the factual findings of a state appellate court based on the state trial record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

The Supreme Court has recently interpreted § 2254(d)(1) to distinguish between decisions that are “contrary to” and those that are an “unreasonable application of’ clearly established precedent. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision will be “contrary to” clearly established Supreme Court precedent where “the state court confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 406, 120 S.Ct. 1495. A state court decision is also “contrary to” established Supreme Court precedent where the state court “applies a rule that contradicts the governing law set forth” in those precedents. Id. at 405, 120 S.Ct. 1495. A state court decision is an “unreasonable application of’ Supreme Court precedent when the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the petitioner’s case. Id. at 407-08, 120 S.Ct. 1495. We may not overturn a state decision simply because we conclude that the state court incorrectly applied Supreme Court precedent. Id. at 411, 120 S.Ct. 1495. Rather, to overturn a state court decision, we must determine that its application of Supreme Court precedent was objectively unreasonable. Id.

In reviewing a state court decision under this standard, we look only to the Supreme Court holdings that existed at the time of the state court’s decision. Id. at 412, 120 S.Ct. 1495. We may not base our decision on Supreme Court dicta or the decisions of the courts of appeals. See id.; Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998).

(b) Analysis

The Supreme Court has not addressed the specific fact pattern presented in this case, i.e., whether the admission of videotaped • prior testimony without a showing of the witness’s unavailability violates the confrontation rights of a criminal defendant. Thus, in analyzing this issue the magistrate judge applied the “unreasonable application” prong of § 2254(d) because the Supreme Court had never addressed the specific facts presented by Brumley’s habeas petition. JA. at 3681 (citing Tucker v. Prelesnik, 181 F.3d 747, 752 (6th Cir.1999)). Given recent refinements in habeas law,⁴ however, this case is appropriately analyzed under the “contrary to” prong of § 2254(d). Under Williams, “[a] state-court decision will certainly be contrary to ... clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” 529 U.S. at 405, 120 S.Ct. 1495. The example provided by the Williams Court tracks closely with the present case:

Take, for example, our decision in Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. If a state court were to reject a prisoner’s claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be “diametrically different,” “opposite in character or nature,” and “mutually opposed” to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a “reasonable probability that ... the result of the proceeding would have been different.”

Id. at 405-06, 120 S.Ct. 1495 (citations omitted) (alteration in original). As in the example provided by the Williams Court, the issue in the present case is ultimately the rule of law to be applied rather than the application of the correct rule to the facts. In the present case, the rule applied by state courts contradicted governing Confrontation Clause law as established in the decisions of the Supreme Court, especially the leading case of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The state trial court admitted the videotaped deposition without first determining that the deponent was unavailable in the constitutional sense, as required by Roberts. The state court of appeals went even further, determining to its own satisfaction that a showing of unavailability is unnecessary because of the inherent reliability of videotaped testimony: “[T]his court concludes that the state is not required to demonstrate the ‘unavailability’ of the witness, as that term was defined by the United States Supreme Court in Roberts.” J.A. at 547. In other words, the difficulty with the state courts’ decisions is not with their application of Roberts, but rather their refusal to apply Roberts at all. Cf. Williams, 529 U.S. at 407, 120 S.Ct. 1495.

In Roberts, the Supreme Court established a two-part “general approach,” 448 U.S. at 65, 100 S.Ct. 2531, to the limitations that the Confrontation Clause imposes on the admissibility of hearsay against a criminal defendant:

First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.

The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that there is no material departure from the reason of the general rule.

Id. (citations, internal quotation marks, and footnote omitted). As Roberts makes clear, the Confrontation Clause requires that the trial court consider the reliability of proffered hearsay evidence only after having established that the hearsay declar-ant is unavailable to testify in person.⁵ Although Roberts suggests that there are exceptions to this general rule, see id. at n. 7 (“A demonstration of unavailability ... is not always required.”) (citing Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality opinion)), other Supreme Court precedents have clearly established that prior testimony, the type of hearsay involved in the present case, may be admitted into evidence in a manner consistent with the Confrontation Clause only upon a showing of unavailability.⁶ See Mancusi v. Stubbs, 408 U.S. 204, 212-13, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); see also White v. Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (“Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry ... when the challenged out-of-court statements were made in the course of a prior judicial proceeding.”); United States v. Inadi, 475 U.S. 387, 393, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) (“The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. In particular, the Roberts Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable.”) (citation omitted); Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (“[T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.”).

In the present case, the state trial court admitted Tony’s videotaped deposition at trial after finding that the requirements of Ohio Crim. R. 15(F) and Ohio Rev.Code § 2945.50 had been satisfied. But the requirements of Ohio Crim. R. 15(F) and § 2945.50 are not identical to the constitutional requirements established in Roberts — most importantly, neither requires the deponent to be “unavailable” in the constitutional sense established in Roberts and Barber. At most, Rule 15(F) permits the admission of deposition testimony when the deponent is out of the state. But this does not relieve the State of its duty to make a good-faith effort to obtain the witness’s presence.

The Supreme Court has held that “a witness is not ‘unavailable’ for purposes of ... the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In fact, the Barber Court considered a fact pattern very similar to the present case, at least regarding the “unavailability” of the declarant. In Barber, the habeas petitioner was tried for armed robbery in Oklahoma; the principal evidence against the petitioner consisted of the transcribed preliminary hearing testimony of a witness, Woods, then incarcerated in a federal prison in Texas. See id. at 720, 88 S.Ct. 1318. The prosecution offered this preliminary hearing testimony at trial on the theory that Woods was unavailable to testify because of his incarceration, and the petitioner objected. The evidence was' admitted over this objection. In seeking a federal writ of habeas corpus, the petitioner claimed that his confrontation rights had been violated by the admission of this pri- or testimony hearsay because the prosecution had not demonstrated the unavailability of the declarant. The district court and court of appeals denied- his petition. See id at 720-21, 88 S.Ct. 1318.

The Supreme Court reversed, however, and established the general rule for determining whether a hearsay declar-ant is unavailable in the constitutional sense. In Barber, the prosecution “made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma.” Id at 723, 88 S.Ct. 1318. The Court acknowledged that, at one time, that showing may have demonstrated the unavailability of a potential witness. By the late 1960s, however, the “increased cooperation between the States themselves and between the States and the Federal Government” in making incarcerated witnesses available for trial had changed the Confrontation Clause analysis. Id The existence of means of obtaining an incarcerated witness’s presence at trial in a different jurisdiction placed an added burden on the prosecution—namely, to make a good-faith effort to employ the existing means for obtaining an incarcerated witness’s presence. Where the prosecution fails to make such an effort, as they failed to do in Barber, the witness cannot be determined to be unavailable in the constitutional sense. “[S]o far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” Id. at 725, 88 S.Ct. 1318 (emphasis added).

Tony Kirklin was available to testify at Brumley’s trial, at least under the rule established in Barber. Ohio and Arizona have both enacted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, see Ohio Rev.Code § 2939.26; Ariz.Rev. Stat. §§ 13-4091 to 13^4096, and thus a means existed for obtaining Tony’s presence. Moreover, the prosecution had employed these procedures to obtain Tony’s presence for the trial of his brother, Delmar. Thus, any state court finding that Tony was “unavailable” in a constitutional sense was contrary to clearly established Supreme Court precedent. The state trial court held that the videotaped deposition was admissible because Tony was out of the state, the requirement of Ohio Crim. R. 15(F). The actual basis of the trial court’s admissibility ruling, however, is ambiguous. The trial court either made its ruling based exclusively on the fact that Tony was out of the state, under the terms of Ohio Crim. R. 15(F), or ruled in addition that Tony was unavailable in the constitutional sense, by overruling defense counsel’s Sixth Amendment objection. In either case, however, the state trial court’s ruling on the admissibility of the videotaped deposition was clearly contrary to the rule of Barber.

Perhaps recognizing this, the state appellate court determined that a showing of Tony’s unavailability was unnecessary given the greater reliability of videotaped testimony. Because the jury was able to view Tony’s demeanor on the videotape, the state appellate court determined that this increased reliability—over transcribed testimony—did away with the need for a showing of unavailability. Such a holding is contrary to clearly established precedent in Barber and Roberts. Roberts clearly requires courts to determine that a witness is unavailable before determining whether the hearsay testimony is sufficiently reliable to satisfy the Confrontation Clause, despite the witness’s unavailability: “The second aspect [reliability] operates once a witness is shown to be unavailable.” Roberts, 448 U.S. at 65, 100 S.Ct. 2531 (emphasis added). To dispense with the first part of Roberts without first making such a determination is contrary to clearly established Supreme Court precedent. Moreover, such a holding would completely eliminate Barber’s requirement that prosecutors make good-faith efforts to obtain the presence of out-of-state witnesses.

The state appellate court placed great emphasis on the fact that the videotaped deposition at issue in the present case had been prepared specifically for use at Brumley’s trial as a substitute for Tony’s live testimony. As a result, the videotaped deposition could address many of the concerns underlying the Confrontation Clause: the witness testified under oath; the defendant could be present and represented by counsel; defense counsel could cross-examine the witness in a manner similar to cross-examination at trial; and thé judge was even to be present to rule on objections. Although these factors do support the state courts’ conclusion that the videotaped deposition was reliable, they do not address the Confrontation Clause’s “preference for face-to-face confrontation at trial.” Roberts, 448 U.S. at 63, 100 S.Ct. 2531 (emphasis added). This particular concern requires that deposition testimony be admitted only when the witness is unavailable.

Thus, the knowing preparation of a videotaped deposition as a substitute for the trial testimony of a constitutionally available witness is inconsistent with the values of the Confrontation Clause, despite reduced concerns with reliability. This view is supported by the Supreme Court’s summary of the purposes of the Confrontation Clause:

The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895). A videotaped deponent may be cross-examined, but the criminal defendant is nonetheless subject to trial by deposition— not as a matter of necessity, as required by RobeHs, but rather as a result of the State’s choice to proceed in this manner for the sake of convenience and cost-savings. The jury may be able to gauge the witness’s demeanor, second-hand, on a television monitor, but the witness is not forced “to stand face to face with the jury.” Thus, the state appellate court’s reliance on the State’s purposeful preparation of the videotaped deposition actually supports the conclusion that the state court’s decision was contrary to established Supreme Court precedent.

Given the Supreme Court’s refinement of habeas law in Williams v. Taylor, then, we are persuaded that the present case is appropriately analyzed under the “contrary to” prong of 28 U.S.C. § 2254(d). At oral argument, however, Brumley’s counsel, apparently relying on the district court’s analysis under the “unreasonable application” prong of § 2254(d), conceded that the state courts’ decisions in this case were not contrary to established Supreme Court precedent. Because of this concession at oral argument, we are reluctant to hold simply that the state courts’ decisions were contrary to clearly established Supreme Court precedent. Thus, we hold in the alternative that, analyzed under the other prong of § 2254(a), the state courts’ admission of Tony Kirklin’s videotaped testimony was an unreasonable application of clearly established Supreme Court precedent.⁷

As discussed supra, Roberts established a general approach for analyzing the confrontation rights of criminal defendants, and the state courts in the present case lacked a weighty enough reason for departing from this general approach. The State now seeks to distinguish the Roberts line of eases by analogizing the present case to Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).⁸ Craig involved a Maryland procedure through which allegedly abused children could testify against their alleged abusers by means of closed-circuit television to avoid further emotional injury to the young witnesses. In a narrow holding, the Craig Court held that such a procedure for admitting audiovisual testimony does not violate the Confrontation Clause where the trial court makes “a case-specific finding of necessity” based on the emotional well-being of the child witnesses. See id. at 860, 110 S.Ct. 3157; see also id. at 853,110 S.Ct. 3157 (“We ... conclude ... that a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.”). Craig clearly contemplated that this exception to the general rule would be limited to only those cases “where denial of ... confrontation is necessary to further an important public policy and ... where the reliability of the testimony is otherwise assured.” Id. at 850, 110 S.Ct. 3157 (emphasis added).

Thus, Craig requires that courts consider the State’s interest in avoiding confrontation separately from the reliability of the evidence at issue; a mere finding that evidence is reliable is insufficient to outweigh a defendant’s confrontation rights if the denial of confrontation is not necessary to further an important public policy.⁹ In Craig, the important public interest was, of course, “the protection of minor victims of sex crimes from further trauma and embarrassment,” an interest which the Supreme Court had previously recognized as “compelling.” Id. at 852, 110 S.Ct. 3157 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)). In contrast, the State’s interests in the present case are not comparable to the interest at issue in Craig. In holding that the State was not required to demonstrate Tony Kirklin’s unavailability before considering the reliability of his videotaped testimony, the state courts allowed the State’s administrative convenience and budgetary concerns to outweigh Brumley’s Sixth Amendment rights.¹⁰ Thus, the state courts’ refusal to extend the two-part Roberts analysis to the context of videotaped testimony, based simply on the reliability of that medium, was not merely incorrect; it was also unreasonable..

In short, we must apply Craig narrowly for the same reason we must apply Roberts broadly — i.e., in order to respect “[t]he central concern of the Confrontation Clause,” which the Supreme Court has identified as “ensur[ing] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845, 110 S.Ct. 3157 (emphasis added). Craig stands for the proposition that a criminal defendant’s Sixth Amendment right to confrontation before the trier of fact is outweighed in some cases by a compelling important state interest comparable to the State’s interest in protecting the victims of child abuse from further injury. Craig cannot reasonably be read to stand for the proposition that the State’s interest in conserving its resources in felony cases outweighs a defendant’s confrontation rights simply because videotaped testimony is inherently reliable. A contrary holding would in effect permit trial by deposition, the evil that the framers of the Confrontation Clause sought to prohibit, albeit in a different medium. There can be little doubt that such a result would be unreasonable, as it would substitute the State’s convenience for the Constitution’s requirement of a showing of necessity based upon unavailability.

2. The Admission of the Videotaped Deposition Was Not Harmless Error.

(a) Standard of Review

Habeas relief is only appropriate when the admission of constitutionally inadmissible evidence was not harmless error. To conclude that the admission was not harmless, we must determine that the state-court error had a substantial and injurious effect or influence in determining the jury’s verdict. Hill v. Brigano, 199 F.3d 833, 846-47 (6th Cir.1999), cert. denied, 529 U.S. 1134, 120 S.Ct. 2015, 146 L.Ed.2d 964; Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999), cert. denied, 528 U.S. 1120, 120 S.Ct. 945, 145 L.Ed.2d 821 (2000) (applying harmless-error analysis of Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

(b) Analysis

Adopting the magistrate judge’s report and recommendation, the district court concluded that the admission of the videotaped deposition was not harmless error, at least with regard to Brumley’s complicity to commit aggravated murder conviction. The magistrate judge concluded that there was sufficient evidence, without the videotaped deposition, to convict Brumley of kidnaping because the testimony of Davis adequately set forth the elements of the kidnaping charge. However, the magistrate judge concluded that “[wjithout Tony Kirklin’s testimony, a reasonable jury could not convict Brumley of complicity to commit aggravated murder.” J.A. at 3687. This conclusion was based on the following considerations:

Tony Kirklin was the only witness to come forward that observed Brumley give the weapon used to murder Becky Knapp to Delmar Kirklin. He was also the only witness [who] heard Brumley direct Delmar Kirklin to “waste her.” Without this crucial testimony, no evidence existed which would have shown that Brumley solicited or aided or abetted Delmar Kirklin in the murder. It appears that all other evidence at trial merely places Brumley at the scene of the murder which in itself is not a crime.

J.A. at 3687-88. In short, without the admission of the videotaped testimony of Tony Kirklin, the district court concluded that the jury could not have found Brum-ley guilty of complicity to commit aggravated murder. Thus, the admission of that testimony had a substantial and injurious impact on the jury’s verdict.

The State argues on appeal that the district court misapplied the Brecht standard. Instead of applying the Brecht standard to the impact of the admission of the videotaped deposition, the State first argues that we should determine whether the presentation of the evidence on videotape, instead of the live testimony of Tony Kirklin, had a substantial impact: “Simply stated, it must be determined how the testimony of Anthony Kirklin would have impacted the jury verdict had it been presented live in-court as opposed to on videotape.” Appellant’s Br. at 23. The State argues that “Brumley can demonstrate little or no injurious effect from the presentation of the videotape as opposed to live testimony.” Id. The State continues: “In other words, if Anthony Kirklin was unavailable, his testimony by videotape would not have violated the Confrontation Clause. If Anthony Kirklin was available, Brumley cannot demonstrate how his testimony would have differed from that contained on the videotape.” Id. at 24.

This specious argument is undermined by both this court’s harmless-error jurisprudence as well as by its own logic. In terms of logic, the State’s position is that the admission into evidence of the videotaped deposition testimony of constitutionally available witnesses will always be harmless error—at least in cases where defense counsel has cross-examined the deponent—because the defendant/petitioner will never be able to show that he was harmed by the admission of the constitutionally infirm evidence. The State’s position completely ignores the importance of live, in-court testimony recognized by the Supreme Court since at least 1895 in Mat-tox. See Mattox, 156 U.S. at 242-43, 15 S.Ct. 337.

In terms of this court’s harmless-error jurisprudence, the proper standard by which to gauge the injurious impact of the admission of constitutionally infirm evidence is to consider the evidence before the jury absent the constitutionally infirm evidence. See Gilliam, 179 F.3d at 995 (holding admission of taped confession of witness invoking Fifth Amendment privilege to be harmless error on the basis of the other evidence admitted at trial); Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir.1993) (rejecting argument that the admission of the videotaped testimony of available key witnesses was harmless error by examining the rest of the trial record).

The State thus argues in the alternative that the evidence on the record supports Brumley’s conviction for complicity to commit aggravated murder even without Tony Kirklin’s videotaped deposition. The State points to the testimony of Davis and Sanders to support this argument. Davis, an occupant of the Grand Prix on the day of the murder, testified to the facts of the incident until the production of the murder weapon by Brumley, including Brumley’s statement that the victim had seen the Grand Prix’s license plates. After Brumley produced the revolver, however, Davis testified that he started running toward home and thus did not see anything else. As he was running, Davis heard two shots fired. Sanders testified to Brumley’s incriminating statements in prison but was not a witness to any of the relevant events.¹¹

We hold that Tony Kirklin’s videotaped testimony had a substantial and injurious effect or influence in determining the jury’s verdict. The testimony of Davis and Sanders is limited. Davis did not testify that he heard Brumley tell Delmar Kirklin to “waste” Becky Knapp, nor did he testify that Brumley handed Delmar the revolver for that purpose. Because he ran away, Davis did not witness the shooting itself, as did Tony. Sanders’s testimony is rather incoherent and establishes (at most) that Brumley said that Kirklin shot Knapp. None of the other witnesses called at trial testified to Brumley’s handing of the revolver to Delmar, to Brumley’s statement to Delmar to “waste” Knapp, or to the shooting itself. This is not a case where the substance of the challenged testimony was already before the jury from other sources. See Hill, 199 F.3d at 847. Instead, this is a case in which “the deposition ] [was] the key piece of evidence.” Stoner, 997 F.2d at 213. Tony Kirklin was clearly the State’s principal witness. As a result, there can be “no doubt that the guilty verdict on that count was substantially influenced by the, admission of [the videotaped] testimony.” Id. at 213-14.

C. The District Court Did Not Abuse Its Discretion in Denying the State’s Motion for Post-Judgment Relief.

We review a district court’s denial of a Rule 60(b) motion under the abuse of discretion standard. See Futernick v. Sumpter Township, 207 F.3d 305, 313 (6th Cir.2000). Applying this standard, we affirm the district court’s denial of the State’s motion for relief under Rule 60(b)(1). Rule 60(b)(1) states that “[o]n motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for ... mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). The district court did not abuse its discretion in denying the State’s motion for relief. We have previously held that a district court does not abuse its discretion when it denies post-judgment relief to a party raising the same issues and arguments post-judgment as those rejected by the district court in its prior (final) judgment. See Futernick, 207 F.3d at 313. Similarly, in the present case the State did not offer any arguments in its objections to the magistrate judge’s report and recommendation that the magistrate judge — and thus the district court, in adopting the magistrate judge’s recommendation-had not already rejected.

The State raises three objections to the magistrate judge’s report and recommendation. First, the State argues that the admission of the videotaped deposition testimony did not violate Brumley’s confrontation rights because Brumley was given an opportunity to cross-examine the deponent. But the magistrate judge’s report and recommendation correctly focused on the issue of unavailability, thus rejecting the State’s emphasis on the reliability of the testimony. Second, the State argues that the use of a videotaped deposition, as opposed to a transcribed deposition, serves Confrontation Clause values by better permitting the jurors to evaluate the demean- or of the deponent. The magistrate judge clearly rejected this argument: “Videotaped testimony clearly has its disadvantages when used in lieu of live, in-court testimony.” J.A. at 3683. Third, the State argued that, if the admission of the deposition violated Brumley’s confrontation rights, then it was harmless error. The magistrate judge rejected this conclusion, as well.

The district court reconsidered these issues after the State filed its objections to the magistrate judge’s report and recommendation and again adopted the magistrate judge’s recommendations. Thus, we hold that the district court did not abuse its discretion in denying the State’s motion for relief under Rule 60(b)(1). The district court had already considered the merits of the State’s arguments and rejected them; when given an opportunity to file objections, the State failed to offer any reasons for the district court to revisit its order granting habeas relief.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s granting of ha-beas relief to Brumley on his conviction for complicity to commit aggravated murder. Moreover, we AFFIRM the district court’s denial of the State’s motion for post-judgment relief.

1 . Ohio Crim. R. 15(A) states that a deposition may be taken “[i]f it appears probable that a prospective witness will be unable to attend or will be prevented from attending a trial or hearing, and if it further appears that his testimony is material and that it is necessary to take his deposition ... to prevent a failure of justice.” Ohio Crim. R. 15(F) specifies when a deposition may be used at trial: "At the trial ... a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears ... that the witness is out of the state.... ”

2 . Ohio Rev.Code § 2945.50 states in relevant part: "At any time after an issue of fact is joined upon an indictment, ... the prosecution or the defendant may apply in writing to the court ... for a commission to take the depositions of any witness.”

3 . The dissent suggests that we "obscure” "the trial-like setting” in which the deposition was taken by "consistently referfring] to Tony Kirklin’s 'deposition testimony’ ” (Dissent, post at 648). The term "deposition testimony” is accurate, however, as this is the language used by the Ohio Revised Code and the Ohio Rules cited supra.

4 . Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), was decided after the magistrate judge's report and recommendation and the district court's two decisions in the present case.

5 . The dissent “believe[s]” that we "err[ ] in [our] strict compartmentalization of the 'unavailability' and 'reliability' prongs of the two-part test set forth in Roberts." (Dissent, post at 672.) It is unclear to us, however, how one could read the quoted passage as not requiring a showing of unavailability before turning to the issue of reliability. The dissent is correct in noting that the Roberts Court addressed "reliability” first, see 448 U.S. at 67-73, 100 S.Ct. 2531, but it did so because the Ohio Supreme Court had based its decision on the reliability of the testimony at issue. See id. at 67-68, 100 S.Ct. 2531 ("We turn first to that aspect, of confrontation analysis deemed dispositive by the Supreme Court of Ohio ... whether Anita Isaacs' prior testimony ... bore sufficient 'indicia of reliability.' ”). Thus, the Supreme Court's order of presentation in Roberts cannot be interpreted as modifying, in any way, the clear rule established in that case, which requires that the State malte a showing of unavailability regardless of the reliability of the proffered pri- or testimony. If this rule embodies "a policy judgment” that live testimony is better than prior testimony, as the dissent complains (Dissent, post at 658), that policy judgment was made by the Supreme Court in Roberts.

6 . We note that the dissent agrees with our characterization of Tony Kirklin’s videotaped deposition as prior testimony, conceding at least that "Tony Kirklin gave his testimony prior’ to trial, in a purely temporal sense.” (Dissent, post at 661.) The dissent disagrees with us, however, in concluding that Roberts provides the relevant constitutional rule in the present case, despite that precedent's obvious applicability once one agrees that the deposition testimony was prior testimony.

7 . Although the distinction drawn in Williams between the "contrary to” and "unreasonable application of” prongs of § 2254(d)(1) might be read to suggest that a state court decision cannot run afoul of both prongs, Williams clearly holds that a state court decision can indeed run afoul of both. See Williams, 529 U.S. at 397, 120 S.Ct. 1495 ("[The Virginia Supreme Court’s] analysis in this respect was thus not only 'contrary to,’ but also ... an 'unreasonable application of' the clear law as established by this Court.”); id. at 413, 120 S.Ct. 1495 (O’Connor, J., concurring) ("I believe that the Court’s discussion ... is correct and that it demonstrates ... that the Virginia Supreme Court’s decision in Williams' case, even under the interpretation of § 2254(d)(1) I have set forth ..., was both contrary to and involved an unreasonable application of our precedent.”).

8 . We note that the state appellate court did not rely on Craig in dispensing with the unavailability analysis required by Roberts.

9 .The dissent argues that, under Craig, where "the core constitutional guarantee of confrontation is not threatened,” "a lesser (albeit still important) interest will suffice to tip the balance in favor of ... admissibility.” (Dissent, post at 667.) We are unable, however, to square this interpretation of Craig with the clear import of that decision — namely, that deviation from the Confrontation Clause is justified only where there is both a sufficiently important state interest and a showing that the evidence is sufficiently reliable. Indeed, the Craig Court emphasized that "the assurances of reliability” were "far greater” in that case than in other cases, such as Roberts, before moving on to analyze, separately, the nature of the state interest at issue. Craig, 497 U.S. at 851-52, 110 S.Ct. 3157. Thus, Craig cannot reasonably be read to establish the rule that as the reliability of the proffered evidence increases, the required importance of the state interest decreases. In sum, Craig provided the Court with the opportunity to fashion the rule that the dissent favors, but the Court instead fashioned a rule more protective of confrontation rights than that favored by the dissent.

10 . Moreover, it should be added that it will always be more convenient and less expensive for the State to videotape the testimony of an incarcerated key witness than it will be for the State to produce the same witness live in court. Although the present case involves the out-of-state language of Ohio Crim. R. 15, one can easily imagine an amendment to that rule permitting the use of videotaped testimony at any time when the witness is incarcerated. If the inconvenience and cost of producing an incarcerated witness from another state are great enough to outweigh the Sixth Amendment rights of a criminal defendant, despite the State's ability to secure the attendance of that witness at trial, then similar considerations would permit the admissibility of the reliable videotaped testimony of an in-state incarcerated witness. If the only factor to be considered is the reliability of the testimony, then what difference does it make whether the witness is incarcerated in Arizona or Mansfield, Ohio?

11 . Of the five men in Delmar's Grand Prix on the day of the murder of Knapp — Brumley, Delmar Kirklin, Tony Kirklin, Kevin Davis, and Marty Marshall — only Davis and Tony Kirklin (by videotaped deposition) testified during the guilt phase of Brumley’s trial. The defense planned on calling Delmar at one point in the trial but instead did not put on a case. Brumley did not testify on his own behalf in the guilt phase. Marshall testified during the mitigation phase. His testimony differs in many respects from that of Tony Kirklin. Specifically, Marshall testified that Brumley never handled the revolver, never pointed the revolver at Knapp, and never told Delmar to “waste” her. J.A. at 2350.