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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10150
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-24171-DLG
WALTER LEE SILIMON,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2014)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Walter Silimon, a state prisoner, appeals pro se the denial of his petition for
a writ of habeas corpus. See 28 U.S.C. § 2254. We granted a certificate of
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appealability to address whether a Florida court violated Silimon’s right of
confrontation under the Sixth and Fourteenth Amendments by admitting
testimonial hearsay in a hearing to revoke his probation. Because the decision of
the Florida court to admit the hearsay in a revocation hearing was not contrary to
or an unreasonable application of clearly established federal law, we affirm.
I. BACKGROUND
While Silimon was serving a sentence of probation imposed by a Florida
court, Officer Nestor Lopez of the Florida City Police Department arrested Silimon
on a charge of domestic battery. A probation officer moved to revoke Silimon’s
probation for committing a new offense.
A Florida court held a revocation hearing, but the victim of the domestic
battery, Latoya Smith, did not appear at the hearing. The prosecutor argued the
hearing could proceed because Officer Lopez would testify that he observed
Smith’s injuries and that Smith said she had been battered by Silimon. Silimon
objected and argued that the admission of Smith’s out-of-court statement
“obviously denie[d] . . . his Sixth Amendment right to confrontation,” as
interpreted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The
prosecutor responded that a more flexible standard of due process governed the
admission of testimonial evidence in a revocation proceeding, as explained in
Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972), and Gagnon
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v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759–60 (1973). The state court
likened Smith’s statement to that of an “excited utterance” and ruled that the
hearsay evidence was admissible because “Crawford does not apply in probation
violation hearings.”
Silimon protested that Smith did “not [want] to prosecute this case.”
Silimon asserted that Smith had visited the office of the state attorney to withdraw
her complaint about the battery; she failed to appear for the revocation hearing
after having already “refused to come in on other subpoenas”; and his sister would
testify that Smith had recanted her story. The prosecutor responded that neither
she nor another prosecutor involved in the case had been contacted by Smith to
recant and, even if she had, it “wouldn’t prevent” Silimon’s revocation proceeding.
The state court agreed that Smith was “just a witness” who did not “deci[de]
[whether] to prosecute or not.”
In support of its motion to revoke probation, the state presented the
testimonies of Silimon’s probation officers and Officer Lopez, the order of
probation signed by Silimon, and Smith’s written statement. Lopez testified about
being dispatched to the scene of an alleged domestic battery, where he found Smith
standing outside. Smith told Lopez that she was “mad” because Silimon had torn
her shirt, hit her in the face, and pulled her hair after she called the police, and then
Smith signed a written statement that described Silimon’s abuse. Lopez
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authenticated Smith’s written statement, and that statement was admitted into
evidence over Silimon’s objection. Lopez testified that he observed a red mark on
the left side of Smith’s face, her shirt was ripped, and her hair was “messed up.”
Lopez also recalled that, during the interview, Silimon told Smith not to “do this.”
Silimon presented a defense. Silimon’s sister testified that she drove Smith
to the prosecutor’s office. Silimon testified that Lopez had remarked that Smith
had not been injured; Smith’s injuries had been self-inflicted; and his statement to
Smith not to “do this” meant that she should not “set [him] up.” In rebuttal, the
State recalled Lopez, who denied telling Silimon that Smith was uninjured.
The state court revoked Silimon’s sentence of probation. The state court
credited Lopez’s testimony; discredited the testimonies of Silimon and his sister;
and rejected Silimon’s arguments that Smith had recanted her story and had signed
her written statement under duress. The state court considered “the exhibits
introduced by the State and the testimony,” which “was not simply hearsay, but
included observations by Officer Lopez,” and found that the “State ha[d] proved by
the greater weight of the evidence that [Silimon] willfully and substantially
violated terms of []his probation.” The Third District Court of Appeal affirmed.
Silimon v. State, 23 So. 3d 772 (Fla. Dist. Ct. App. 2009). The Florida courts also
denied Silimon’s motion for postconviction relief and ruled that the revocation
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hearing had afforded Silimon due process. Silimon v. State, 49 So. 3d 254 (Fla.
Dist. Ct. App. 2010).
Silimon filed a federal petition for a writ of habeas corpus, which the district
court denied. The district court ruled, citing Morrissey and Gagnon, that “the
reliability of the proffered testimony continue[d] to” govern the admissibility of
hearsay evidence in a revocation hearing and that Smith’s out-of-court statement
was “well-corroborated by other admissible evidence.” In the alternative, the
district court ruled that Smith’s statement was admissible under the hearsay
exception for excited utterances.
II. STANDARD OF REVIEW
We review de novo the denial of a petition for a writ of habeas corpus.
Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071 (11th Cir. 2013). A
federal court may not grant a writ of habeas corpus unless the decision of the state
court was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States
[or] 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). “[A]n
unreasonable application of federal law is different from an incorrect application of
federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522
(2000).
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III. DISCUSSION
Silimon argues that the decision of the Florida courts is contrary to the
decisions of the Supreme Court in Morrissey and Gagnon. Silimon argues that the
state failed to comply with those precedents when it denied him the opportunity to
cross-examine Smith about her “direct knowledge of the alleged incident” and
failed to produce Smith for the revocation hearing. Silimon contends that the trial
court should have balanced his right of confrontation against the interest of the
state and made a “particularized finding” of good cause to admit Smith’s out-of-
court statement.
The Confrontation Clause of the Sixth Amendment guarantees an individual
the right to confront witnesses against him. Crawford, 541 U.S. at 38, 124 S. Ct. at
1357. But the right to confrontation is not absolute; the Clause guarantees the right
of confrontation only in “criminal prosecutions.” U.S. Const. amend. VI.
A probationer charged with violating a term of his probation is not entitled
to the same procedural protections afforded the accused in a criminal trial. See
Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759–60; Morrissey, 408 U.S. at 480, 92 S.
Ct. at 2600. Because a “[p]robation revocation . . . is not a stage of a criminal
prosecution,” Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759–60, a probationer is
afforded the minimum requirements of due process, which entitles him to
disclosure of the evidence against him and a hearing at which he can present
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evidence and “confront and cross-examine witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation),” Morrissey, 408 U.S.
at 489, 92 S. Ct. at 2604. That hearing must be “structured to assure that the
finding of a . . . violation will be based on verified facts and that the exercise of
discretion will be informed by an accurate knowledge of the [probationer’s]
behavior,” id. at 484, 92 S. Ct. at 2602, and should involve a “process . . . flexible
enough to consider evidence including letters, affidavits, and other material that
would not be admissible in an adversary criminal trial,” id. at 489, 92 S. Ct. at
2604. See Gagnon, 411 U.S. at 783 n.5, 93 S. Ct. at 1760 n.5 (“[W]e emphasize
that we did not in Morrissey intend to prohibit use where appropriate of the
conventional substitutes, including affidavits, depositions, and documentary
evidence.”).
The Florida courts decided that Silimon’s revocation hearing afforded him
due process, and that decision is not contrary to or an unreasonable application of
clearly established federal law. Because the hearing to revoke Silimon’s probation
was “not part of a criminal prosecution,” he was not entitled to “the full panoply of
rights” that would prohibit the introduction of Smith’s out-of-court statement, and
the revocation hearing could proceed without Smith. See Morrissey, 408 U.S. at
480, 92 S. Ct. at 2600. And the trial court determined that good cause existed to
admit the hearsay evidence when Smith failed to appear for the revocation hearing.
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The trial court found that Smith’s out-of-court statement that she was battered by
Silimon was corroborated by her written statement and Lopez’s personal
observations. The trial court also found “no credible evidence” to support
Silimon’s assertions that Smith’s injuries were self-inflicted and that her statement
was made under duress. Silimon faults the trial court for failing to balance his
interest in confrontation with the good cause of the state to proceed, but the
decisions cited by him that apply a balancing test involve the revocation of
supervised release by federal courts. Silimon references no clearly established
federal law that requires a state court to balance the interests of the parties before
admitting hearsay evidence in a hearing to revoke probation. See Williams, 529
U.S. at 412, 120 S. Ct. at 1523 (stating that “clearly established federal law” in
section 2254(d) “refers to the holdings, as opposed to the dicta, of [the decisions of
the United States Supreme Court] as of the time of the relevant state-court
decision”). The district court correctly denied Silimon’s petition.
IV. CONCLUSION
We AFFIRM the denial of Silimon’s petition for a writ of habeas corpus.
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