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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10512
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00005-BAE-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO LAMONT MURRAY,
a.k.a. Mont,
a.k.a. Bo Hog,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(September 23, 2013)
Before HULL, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
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Antonio Lamont Murray appeals his convictions for one count of conspiracy
to kidnap, in violation of 18 U.S.C. § 1201(c), two counts of kidnapping, in
violation of 18 U.S.C. § 1201(a)(1) and (c), three counts of using a gun during a
crime of violence, in violation of 18 U.S.C. § 924(c), and one count obstruction of
justice, in violation of 18 U.S.C. § 1512(c)(2). He is currently serving a total
sentence of life imprisonment, plus 684 months, to run consecutively.
I.
Before trial, Murray filed motions for funds to obtain expert witnesses in
voice identification and deoxyribonucleic acid (DNA) analysis. A magistrate
judge denied the motions because Murray had failed to demonstrate that the
experts’ services were necessary for him to present an adequate defense.
Specifically, the magistrate judge found that Murray had failed to show that the
voice testimony was the primary evidence implicating his involvement in the
offenses, or that the government did not have additional compelling evidence
linking him to the criminal conduct. Murray additionally failed to explain why a
lay witness would be incapable of refuting the government’s evidence. Similarly,
with regard to the DNA expert, Murray did not explain what DNA evidence the
government had obtained or what evidentiary value the purported DNA had in the
government’s case. Murray subsequently re-filed his motions, and the magistrate
judge granted his motion in part, approving up to $2400 in expenditures for an
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expert DNA witness. Murray did not object to the magistrate judge’s order, nor
did he appeal any of the denials to the district court.
At trial, the government called Charity Davis, an expert witness in forensic
serology and forensic DNA, to testify about a DNA sample that was obtained from
a soda can found at one of the crime scenes. Davis stated that based on the DNA
test results that were conducted by biologists at her lab, she was able to conclude
that the DNA from the crime scene matched Murray’s DNA. Murray objected to
this testimony, arguing that Davis was only interpreting the results of the biologists
and that instead, the biologists should be required to testify about the tests and the
test results.
On appeal, Murray first argues that he was deprived of his Sixth Amendment
right to assistance of counsel and of his right to due process when the magistrate
judge denied his motions for expenditures to obtain expert witnesses. He further
contends that his counsel was ineffective because the denial of his motions
prevented him from providing a meaningful adversarial testing of the prosecution’s
case.
Murray next argues that Davis’s testimony violated his right to confront the
witnesses against him. He contends that Davis’s testimony was based exclusively
on hearsay and findings made by the lab biologists who were not present at trial.
His inability to cross-examine those individuals or challenge their testimony at trial
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violated the Confrontation Clause. The government contends that Murray did not
properly raise a Confrontation Clause objection at trial, and, thus, this issue should
be reviewed for plain error only. After a thorough review of the record and the
parties’ briefs, we affirm.
II.
We lack jurisdiction to hear appeals directly from federal magistrate judges.
United States v. Schultz, 565 F.3d 1353, 1359 (11th Cir. 2009) (per curiam). Rule
59(a) of the Federal Rules of Criminal Procedure provides that a district court may
refer “any matter that does not dispose of a charge or defense” to a magistrate
judge. The magistrate judge must then enter an order and allow the parties to file
objections within 14 days of their receipt of the order. Fed. R. Crim. P. 59(a).
Failure to object to the magistrate judge’s order waives a party’s right to review.
Id. In Schultz, we determined that we lacked jurisdiction to review the magistrate
judge’s denial of the defendant’s motion for self-representation because the
defendant had failed to appeal the decision to the district court. 565 F.3d at 1361–
62. In this case because Murray did not appeal the magistrate judge’s denials of
his motions to the district court, we lack jurisdiction to rule on his claim regarding
the denials of his motions for expenditures. See id. at 1359.
As to Murray’s next argument, we “will not generally consider claims of
ineffective assistance of counsel raised on direct appeal where the district court did
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not entertain the claim nor develop a factual record.” United States v. Bender, 290
F.3d 1279, 1284 (11th Cir. 2002). An appellate court generally cannot adequately
decide an ineffective-assistance of counsel claim raised for the first time on direct
appeal because the focus at trial did not analyze whether defense counsel’s actions
were prejudicial or supported by reasonable strategy. Massaro v. United States,
538 U.S. 500, 504–05, 123 S. Ct. 1690, 1693–94 (2003). The preferred avenue for
deciding a claim of ineffective assistance of counsel is by way of a habeas corpus
petition, “even if the record contains some indication of deficiencies in counsel’s
performance.” Id. at 504, 123 S. Ct. at 1694. Accordingly, we decline to review at
this time whether Murray’s trial counsel was ineffective. See id. at 504–05, 123 S.
Ct. at 1693–94.
III.
Murray further argues that Davis’s testimony violated the Confrontation
Clause. We review preserved claims of constitutional error de novo. United States
v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). However, where a defendant did
not lodge a timely Confrontation Clause objection, we review for plain error only.
United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006) (per curiam). “A
hearsay objection to testimony at trial, standing alone, does not preserve a
constitutional challenge under the Confrontation Clause for appeal.” Id. at 1291
n.8.
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The Sixth Amendment’s Confrontation Clause states that a criminal
defendant has the right to be confronted with the witnesses against him. The
Confrontation Clause protects a defendant’s right to confront those individuals
who make “testimonial” statements against him. Melendez-Diaz v. Massachusetts,
557 U.S. 305, 309–10, 129 S. Ct. 2527, 2531 (2009) (citing Crawford v.
Washington, 541 U.S. 36, 51–52 124 S. Ct. 1354, 1364 (2004)).
Murray is unable to show any error, plain or otherwise. Murray argues that
the Confrontation Clause requires the biologists who conducted the underlying
DNA tests to be present at trial or be subjected to cross-examination before trial.
He is mistaken. In Williams v. Illinois, the Supreme Court found that an expert’s
reliance on a DNA profile produced by an outside lab does not run afoul to the
Confrontation Clause
because that provision has no application to out-of-court statements
that are not offered to prove the truth of the matter asserted. When an
expert testifies for the prosecution in a criminal case, the defendant
has the opportunity to cross-examine the expert about any statements
that are offered for their truth. Out-of-court statements that are related
by the expert solely for the purpose of explaining the assumptions on
which that opinion rests are not offered for their truth and thus fall
outside the scope of the Confrontation Clause.
—U.S.—, 132 S. Ct. 2221, 2228 (2012). At Murray’s trial, Davis testified that the
outside tests revealed that the DNA extracted from the soda can matched a known
sample from Murray. Under the Supreme Court’s decision in Williams, Davis’s
testimony did not violate the Confrontation Clause. See id.
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AFFIRMED.
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