Peak v. Webb

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0074p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellant, -
MICHAEL ANTHONY PEAK,
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No. 09-5977
v.
,
>
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Respondent-Appellee. -
PATTI WEBB,
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 07-00233—John G. Heyburn II, District Judge.
Argued: November 16, 2011
Decided and Filed: March 14, 2012
Before: MERRITT, BOGGS, and CLAY, Circuit Judges.

_________________

COUNSEL
ARGUED: Howard J.C. Nicols, SQUIRE, SANDERS & DEMPSEY (US) LLP,
Cleveland, Ohio, for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Howard
J.C. Nicols, Steven A. Delchin, SQUIRE, SANDERS & DEMPSEY (US) LLP,
Cleveland, Ohio, for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. Michael Anthony Peak,
Central City, Kentucky, pro se.
BOGGS, J., delivered the opinion of the court, in which MERRITT, J., joined,
with MERRITT, J. (p. 13), also delivering a separate concurring opinion. CLAY, J. (pp.
14–33), delivered a separate dissenting opinion.

1
No. 09-5977 Peak v. Webb Page 2

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OPINION
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BOGGS, Circuit Judge. Michael Peak, convicted of first-degree murder and
sentenced to life in prison, petitioned the United States District Court for a writ of habeas
corpus. He argued that his Confrontation Clause rights had been violated at trial when
the government played a tape recording of his co-defendant’s custodial statement
without affirmatively calling the co-defendant as a witness, over Peak’s objection. The
court denied the petition, and Peak now appeals that denial. Though the trial court may
well have violated Peak’s constitutional rights when it failed to sustain his objection, we
cannot say, as the Supreme Court now requires, that fairminded jurists could not disagree
with our opinion when the co-defendant was in the courtroom and available to testify
and be (cross-) examined. In fact, four such fairminded justices of the Kentucky
Supreme Court did disagree. Therefore, we are compelled to AFFIRM.

I

In 2002, Leann Bearden, Patrick Meeks, and Michael Peak were charged with
murdering, robbing, and conspiring to murder an unidentified person. Peak v. Kentucky,
197 S.W.3d 536, 541 (Ky. 2006).1 The investigation of Peak, Meeks, and Bearden
began when Bearden told Charles Mackem, a man to whom she sold cocaine, that she
had been involved in a murder. Mackem told the story to police in exchange for
immunity from prosecution.

The case was notable for its lack of physical evidence or witnesses. No blood
or fingerprints were found at the scene. The murder weapon was never found. The only

1
The victim was identified six years later as Miguel Garcia. Until then, he was called Juan Doe
or Unidentified Male, Case FA-99-09. See Dan Berry, A Name and Face No One Knew, but Never Forgot,
N.Y. TIMES, Apr. 21, 2008, http://www.nytimes.com/2008/04/21/us/21land.html? pagewanted=all
(describing the search for Garcia’s identity).
No. 09-5977 Peak v. Webb Page 3

witnesses were the three co-conspirators themselves. Of the three, only Bearden
testified. Her testimony was the version of the facts primarily relied upon at trial.2

According to Bearden’s testimony at trial, she met the victim, whom she only
knew as “Mike,” at a social occasion in Louisville, where they used cocaine together.
At another social event, Mike told Bearden that he wanted to sell a kilo of cocaine.
After learning that Mike was trying to sell a kilogram of cocaine, Peak, Meeks, and
Bearden conspired to kill Mike in order to take the cocaine.3 Peak allegedly said to
Meeks, “Yeah, you get the gun and I’ll do the shooting.” She testified that the next night
she saw Meeks give Peak a gun. Bearden testified that at that point, she worried that the
men were actually planning to kill Mike.

The next night, two nights after the three had first discussed killing the victim,
Bearden, Peak, and Meeks drove to a farmhouse together.4 Meeks told Bearden to call
Mike and tell him there was a buyer for the cocaine. Bearden testified that she thought
Meeks also had a gun at this point, so that both men were armed. She testified that Peak
told her, “When you walk in and Mike’s behind you, you better get out of the way or
you’re going to get shot yourself.” Bearden testified that when she, Meeks, and the
victim arrived at the farmhouse she went inside, hoping to find a way out of the house
so that she could escape. She testified that no one was right behind her, but that she
believed Mike came in next, and that Meeks did not come in the house. She stated that
she did not see Peak when she went into the house. She stated that she “wound up”
walking into a bathroom and was trying to open a window in the bathroom when she
heard two shots. She testified that she heard Peak cursing and then calling for Meeks,

2
Bearden’s facts were partially corroborated by the testimony of Mike Cissell, who did not
participate in and was not present at the murder, but who helped Peak and Meeks move the victim’s body
hours after the murder was committed. Cissell, one of Peak’s best friends, testified that Peak and Meeks
had approached him in advance of the murder about killing a man and stealing his cocaine.
3
Bearden seems to have known Meeks through a mutual friend when she was in graduate school.
She stated she did not know Peak until the night they first discussed killing Mike. Specifically, she stated
that she met Peak the night she discussed the victim with Meeks, and that she and Peak had sex later that
same night.
4
In his taped statement, which was played at trial and is the subject of this appeal, Meeks said
that he used to live in the farmhouse.
No. 09-5977 Peak v. Webb Page 4

yelling: “He’s not dead, he’s still standing, and he’s coming towards me.” She then left
the bathroom, and ran into Peak, who said: “Get Meeks and get him in here.”

Bearden further testified that when it was getting light out, hours later, Meeks
came outside and told her to come in to help clean up blood. She testified that she saw
blood “everywhere” but that she did not see Mike’s body. Bearden testified that, when
they were finished cleaning, they drove out into the country and Peak got out of the car
to throw out the gun. However, Bearden stated that she did not see the gun at any point.
She merely stated that Peak said: “We need to get rid of the gun.”

Later in her testimony, Bearden talked about telling the police “everything” as
soon as they showed her photos of Peak and Meeks at an initial questioning. She took
them to where the gun had allegedly been discarded and to the farmhouse, which had
been “burnt.” In her testimony, Bearden verified that she had signed a deal with
prosecutors that if she testified truthfully they would not seek the death penalty against
her.

After direct examination of Bearden, Peak’s attorney moved for severance and
a mistrial, because Bearden was “wearing two hats,” as she was serving as both a
defendant and as a witness for the prosecution, and because she had been allowed to be
in the courtroom during the prosecution’s opening statement, which gave her “the benefit
of hearing him characterize her testimony immediately before getting on the witness
stand.” Meeks also moved for severance of the trials. These motions were denied.

During cross-examination, Bearden was demonstrated to be a witness with
somewhat less than sterling credibility. She agreed that she was a drug dealer. She was
impeached with contradictory statements that she had made about being frightened
primarily of Meeks, not of Peak. She admitted that she did not actually see the gun,
when she had said initially that Meeks gave Peak the gun. She stated she never saw
blood on Peak or Meeks after the killing. She also stated that she became pregnant with
Peak’s child and had an abortion. Finally, Bearden admitted that she had failed a
polygraph exam that she took while imprisoned.
No. 09-5977 Peak v. Webb Page 5

The only direct evidence establishing Peak as the shooter in this murder came
from Meeks’s unsworn taped confession.5 This confession was undisputedly made to
police while Meeks was in custody, after his arrest. At trial, Meeks asserted his Fifth
Amendment right not to incriminate himself. Because the state wanted to play his taped
interrogation, it created a redacted version to skirt the statements that would violate
Meeks’s right against self-incrimination. However, Meeks thought this version made
him appear even more to have been the shooter. Because he did not want this redacted
version to be played, Meeks waived his Fifth Amendment rights so the state could play
the unredacted tape. Meeks was available to be called as a witness at trial. Peak had not
had any prior opportunity to cross-examine Meeks.

Peak objected to the government’s introduction of Meeks’s taped confession,
arguing that playing the tape without calling Meeks to the stand at the same time
violated Peak’s Sixth Amendment right to confront the witnesses against him. He also
moved for a mistrial. His objections were overruled. In overruling his objections, the
court stated that any party could now call Meeks, as his Fifth Amendment rights had
been waived.

The forty-five-minute tape was then played, during the testimony of Detective
Griffin of the Kentucky State Police, who had arrested Meeks. On the tape, Meeks
stated that Peak was the shooter. Meeks’s statement was played twice more during trial:
during the government’s closing argument, and, at the jury’s request, during
deliberations. The tape stated in relevant part:

[Mike, Leann, and I] [w]alked in the door [of the house where the victim
was killed]. Next thing I know Leanne [sic]—Tony—Tony jumped out
from a doorway[,] pulled a gun[,] and Leanne screamed, ran. I heard a
gunshot. I ran. We both ran outside. I heard more gun shots. I came
back inside, found the individual laying on the ground face down on the
ground in a pool of blood with Tony standing pretty much over top [sic]
of him hollering and screaming. Then I proceeded to go back outside
because I heard Leanne scream. I went outside. She was screaming,

5
These tapes (there were two) were introduced at trial as Commonwealth Exhibit 53A and 53B.
The tapes were transcribed in the record but were not provided for our review, so they are quoted from the
record transcript.
No. 09-5977 Peak v. Webb Page 6

freaking out. I go back inside. Tony’s pretty much freaking out . . . over
what he’s done. And then . . . worried about where the drugs are. Finds
the drugs. Gets in Leanne’s car. Drives it past the river. Throws the gun
in the river.6

Meeks also stated, “I didn’t kill anybody” and “I thought the gun was for Tony’s
protection.”

At the end of the trial, the jury convicted Peak of intentional murder, first-degree
robbery, conspiracy to commit murder, and tampering with physical evidence. He was
sentenced to life in prison without the possibility of probation or parole for twenty-five
years. Meeks was convicted of wanton murder, first-degree robbery, conspiracy to
commit murder, and tampering with physical evidence. He was sentenced to life in
prison without the possibility of probation or parole for twenty-five years. Peak, 197
S.W.3d at 540. Bearden pleaded guilty to murder, robbery, and conspiracy and received
a twenty-year sentence.

Peak appealed his conviction. His appeal was consolidated with Meeks’s. Ibid.
A majority of the Kentucky Supreme Court, comprised of four justices, affirmed Peak’s
conviction, but only a three-justice plurality joined the opinion.7 The plurality reasoned
that the Confrontation Clause does not bar a statement as long as “‘the declarant is
present at trial to defend or explain it.’” Id. at 544 (quoting Crawford v. Washington,
541 U.S. 36, 59 n.9 (2004)). Because Peak had the opportunity to call Meeks as a
witness and chose not to, the court reasoned, he “waived his right to confrontation.”
Ibid.

Three justices dissented, stating that they believed the trial court had erred in
overruling objections to a “clear violation” of the Confrontation Clause, and that they
would grant Peak a new trial. Id. at 551. The dissent relied on Crawford’s language that

6
Meeks’s statement on the tape differs dramatically from Bearden’s version of the events. Meeks
recalls Bearden running immediately outside; she recalled being inside the house when she heard shots
fired. Meeks’s version leaves out the screaming and Peak shouting that Mike was not dead yet. Meeks
makes the incident sound quick, while Bearden’s version had the three at the farmhouse for at least three
or four hours.
7
Justice Roach concurred only in the result.
No. 09-5977 Peak v. Webb Page 7

“[w]here testimonial evidence is at issue, the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for cross-examination.”
Id. at 550 (quoting Crawford, 541 U.S. at 68). Meeks’s statement was undeniably
testimonial, as Crawford explicitly held that “police interrogations” were testimonial.
Crawford, 541 U.S. at 68. Therefore, the dissent reasoned, the trial court had allowed
testimonial evidence to be presented where the declarant was both available and where
there had not been a prior opportunity for Peak to cross-examine him, a violation of both
Crawford requirements. Peak, 197 S.W.3d at 550. The dissent disputed the plurality’s
decision that Peak waived his confrontation rights. It argued that it is not the job of a
criminal defendant to cure the trial court’s error. Ibid. Calling Meeks during Peak’s
case-in-chief was not an adequate substitute for immediate cross-examination, the
dissent reasoned—days later, there would not be the immediacy of cross-examination
and the jurors would be reminded of what they had heard.

One month after the Kentucky Supreme Court opinion was published, Peak filed
a petition for rehearing in the Kentucky Supreme Court. He argued that “[t]he Court’s
majority opinion in this case misconceives the issue and overlooks controlling law in
upholding the prosecution’s introduction and use of the unredacted confession of a
nontestifying co-defendant.” The court denied the petition for rehearing. See Peak, 197
S.W.3d at 536 (noting the denial in the case caption).

Peak next petitioned the United States Supreme Court for a writ of certiorari.
The Court denied the petition after requesting a response on the case after conference.
549 U.S. 1283 (2007); 75 U.S.L.W. 3497 (U.S. Mar. 19, 2007 ).

Having exhausted his state-court remedies, Peak filed a petition for a writ of
habeas corpus in the district court, raising the single ground that admission of his
Meeks’s taped statement at trial violated his rights under the Confrontation Clause.8 The
district court denied his petition but granted a certificate of appealability. The court, in
noting the standards set forth by the Antiterrorism and Effective Death Penalty Act

8
Up to this point in the case history, Peak had proceeded through counsel. He filed his petition
for habeas corpus pro se.
No. 09-5977 Peak v. Webb Page 8

(AEDPA) of 1996,9 determined that the decision of the Kentucky Supreme Court was
not contrary to Crawford and its progeny, because the district court determined that “the
Constitution does not actually require the prosecution to call a witness to the stand in its
case-in-chief to satisfy the Confrontation Clause. Rather, the Constitution simply
requires that the witness must be made available for cross-examination.” The court
reasoned that “Peak’s ability to have called Meeks is fatal to his Confrontation Clause
argument. Placing a burden on the prosecution to do more than make the witness
available . . . goes beyond what the Supreme Court cases dealing with the Confrontation
Clause have required.”10

Peak appealed the district court’s denial of his petition to this court. We affirm.

II

The Sixth Amendment Confrontation Clause states: “In all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. CONST. amend. VI. Crawford v. Washington held that where “testimonial evidence
is at issue, . . . the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68.

Peak’s rights under the Confrontation Clause were at issue when the government
played Meeks’s taped statement. The Supreme Court has held that “witnesses” are those
who “‘bear testimony.’” Crawford, 541 U.S. at 51 (quoting 2 N. WEBSTER, AN

9
AEDPA states in relevant part:
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim—
(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 that was presented in the State court proceeding.
28 U.S.C. § 2254.
10
In making its decision, the district court explicitly relied on a Sixth Circuit case, Bailey v.
Pitcher, 86 F. App’x 110 (6th Cir. 2004). However, this case was decided before Crawford and is
irrelevant in any determination of whether the Kentucky Supreme Court was contrary to clearly established
federal law when the federal law in question is Crawford’s holding on the right of a criminal defendant
to confront the witnesses against him.
No. 09-5977 Peak v. Webb Page 9

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). The Court held that
“testimony” is defined as “‘[a] solemn declaration or affirmation made for the purpose
of establishing or proving some fact.’” Ibid. Further, the Court held that “functional
equivalent[s]” of in-court testimony, specifically including custodial examinations, are
the core class of testimonial statements, noting further that “[s]tatements taken by police
officers in the course of interrogations are . . . testimonial under even a narrow
standard.” Id. at 51–52; see also id. at 53 (“interrogations by law enforcement fall
squarely within [testimonial hearsay]”). Meeks’s recorded statement did fall under the
Confrontation Clause—his statement was made during a custodial examination and bore
witness against Peak.

Next, we must consider whether the trial court’s decision to allow the
government to play Meeks’s recorded statement during the testimony of Detective
Griffin was an error clear enough to permit relief under AEDPA. We may only grant
habeas relief to Peak if we find that the trial court’s decision 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 that was presented in the State court
proceeding.” 28 U.S.C. § 2254(d). The law in question must have been clearly
established at the time the state-court decision became final, not after. See Williams v.
Taylor, 529 U.S. 362, 380 (2000) (“It is perfectly clear that AEDPA codifies Teague [v.
Lane, 489 U.S. 288 (1989)] to the extent that Teague requires federal habeas courts to
deny relief that is contingent on a rule of law not clearly established at the time the state
conviction became final.”).

Further, the Supreme Court has very recently made abundantly clear that the
review granted by AEDPA is even more constricted than AEDPA’s plain language
already suggests. As long as “fairminded jurists could disagree on the correctness of the
state court’s decision,” then relief is precluded under AEDPA. Harrington v. Richter,
131 S. Ct. 770, 786 (2011) (internal quotation marks omitted). A habeas court “must
determine what arguments or theories supported or . . . could have supported[] the state
No. 09-5977 Peak v. Webb Page 10

court’s decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision of this Court.” Ibid. Therefore, if it is possible for a fairminded jurist to believe
that the state court’s rationale comports with the holding in Crawford, then we must
deny relief. This is a very high standard, which the Court freely acknowledges. See
ibid. (“If this standard is difficult to meet, that is because it is meant to be.”).

Crawford requires unavailability and a prior opportunity to cross-examine for the
use of testimonial hearsay. Crawford, 541 U.S. at 68. When Meeks’s statement was
played at trial, Meeks was available and there has been no prior opportunity for Peak
to cross-examine him. Clearly, if Peak was not “confronted” with Meeks, then playing
Meeks’s statement violated Crawford.

The crux of the issue is whether making a witness available to be called is
confrontation, or whether confrontation instead requires the witness to take the stand at
the very time, according to Supreme Court precedent that was clearly established when
Peak’s conviction became final.11 It is an open question whether confrontation requires
the witness to actually take the stand. At some points, Crawford seems to equate
confrontation with cross-examination, which would require the state to put Meeks on the
stand when the tape was played. See, e.g., Crawford, 541 U.S. at 61 (the Clause
“commands . . . that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.”); id. at 68 (describing as a violation the admission of a
testimonial statement when the petitioner “had no opportunity to cross-examine her”)
(emphasis added). Another Supreme Court case decided prior to Peak’s case becoming
final also implied that confrontation requires the ability to cross-examine. See Davis v.
Washington, 547 U.S. 813, 822 n.1 (2006) (“The Framers were no more willing to

11
A conviction becomes final when a petition for certiorari is denied or when the time for filing
a petition for certiorari elapses. Allen v. Hardy, 478 U.S. 255, 258 n.1 (1986). A petition for a writ of
certiorari from a state criminal judgment, when any party has filed a petition for rehearing in the state
court, must be filed within 90 days after the petition for rehearing is denied. 28 U.S.C. § 2101(c)
(incorporating by reference United States Supreme Court Rule 13(1), (3)). Therefore, because Peak filed
a petition for rehearing and the petition was denied, he had 90 days from August 24, 2006, when his
petition was denied, to file a petition for certiorari. He did not do so, and therefore, his conviction became
final on November 22, 2006. See U.S. Sup. Ct. R. 30.
No. 09-5977 Peak v. Webb Page 11

exempt from cross-examination volunteered testimony or answers to open-ended
questions than they were to exempt answers to detailed interrogation.”).

However, Crawford also contains language that suggests that confrontation
requires only that the witness be made available to be called at trial, not that the witness
be put on the stand for immediate cross-examination. See Crawford, 541 U.S. at 59
(“Testimonial statements of witnesses absent from trial have been admitted only where
the declarant is unavailable, and only where the defendant has had a prior opportunity
to cross-examine”) (emphasis added); id. at 53–54 ( “[T]he Framers would not have
allowed admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify.”) (emphasis added). So there seems to be a question
of whether confrontation demands the opportunity to cross-examine the declarant who
has been called by the prosecution, or merely that the declarant is available at trial to be
called and (cross-)examined. This case requires an answer to this question. The one
Supreme Court case discussing this aspect of Crawford that was decided prior to the
finality of Peak’s conviction does not dispel the uncertainty. See Davis, 547 U.S. at 822
(“In Crawford, we held that [the Confrontation Clause] bars admission of testimonial
statements of a witness who did not appear at trial . . . .”) (emphasis added) (citation and
internal quotation marks omitted). The Supreme Court simply had not, at the time
Peak’s conviction became final, clearly held that the ability to cross-examine
immediately is required by the Confrontation Clause.

It is not unreasonable to believe, as did at least three justices on the Kentucky
Supreme Court, as well as the trial-court judge, that confrontation only requires that a
declarant be made available in the courtroom for a criminal defendant to call during his
own case. It can be argued that this ability is equivalent to cross-examination. The
defendant can, for example, employ leading questions in questioning a hostile witness
on direct examination just as he could in cross-examination. FED. R. EVID. 611(c);
United States v. Hughes, 308 F. App’x 882, 890 (6th Cir. 2009). More basically, the
defendant has had the ability to confront the witness face-to-face, and to question the
witness about the testimonial statement while the witness is under oath.
No. 09-5977 Peak v. Webb Page 12

We are not convinced that the opportunity to call a witness, as opposed to the
opportunity to immediately cross-examine a witness, satisfies the Confrontation Clause.
However, we are convinced that there is a possibility for fairminded disagreement on the
issue, and under clear, and increasingly strident,12 Supreme Court precedent, that is all
that is required to affirm.

III

Because there is room for reasoned agreement with the conclusion of the
Kentucky Supreme Court that, in the circumstances of this case, the Confrontation
Clause does not require the opportunity to cross-examine as soon as an out-of-court
statement is introduced, we respect the strictures of AEDPA and AFFIRM the denial of
Peak’s habeas petition.

12
See, e.g., Greene v. Fisher, 132 S. Ct. 38, 43–44 (2011) (“[T]he purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions . . . and not as a means of error
correction.”) (internal quotation marks omitted); Bobby v. Dixon, No. 10-1540, 132 S. Ct. 26, 27 (2011)
(per curiam) (“Because it is not clear that the Ohio Supreme Court erred . . . so transparently that no
fairminded jurist could agree with [its] decision, the Sixth Circuit’s judgment [granting habeas relief] must
be reversed.”); Harrington, 131 S. Ct. 770, 786 (2011) (“A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the
state court’s decision.”) (internal quotation marks omitted).
No. 09-5977 Peak v. Webb Page 13

_____________________

CONCURRENCE
_____________________

MERRITT, Circuit Judge, concurring. I agree with Judge Boggs’ opinion in the
case on the AEDPA problem because in the recent case of Greene v. Fisher, 132 S. Ct.
38 (2011), a unanimous Supreme Court observed that the AEDPA standard “is difficult
to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice system, and not as
a means of error correction.” (Internal quotation marks omitted.) This interpretation of
the AEDPA standard appears to grant much more deference to state decisions when we
review them under AEDPA than the earlier interpretation in Williams v. Taylor, which
was worded in terms of “unreasonable” interpretation or application and not in terms of
reversing only “extreme malfunctions in the state criminal justice systems.” The
Supreme Court has itself in the past commented on the obscure nature of the language
of AEDPA, Lindh v. Murphy, 521 U.S. 320, 336 (1997). Court decisions have varied
significantly in interpreting this unclear text between greater and lesser deference to state
court decisions. The unanimous decision in Greene and other recent cases have now
come to an interpretation of AEDPA that gives much greater deference to state court
interpretations of the federal constitution.

I also agree with Judge Boggs’ suggestion on the merits of the confrontation
question: it is doubtful that a witness who appears in court ready for the defendant’s
examination can be said to meet the “unavailable” element of the test under the Sixth
Amendment.
No. 09-5977 Peak v. Webb Page 14

________________

DISSENT
________________

CLAY, Circuit Judge, dissenting. Michael Peak’s Sixth Amendment
Confrontation Clause right was irrefutably violated when his co-conspirator’s
testimonial, hearsay confession accusing Peak as the triggerman and ringleader of a
robbery and murder was played to the jury in lieu of the co-conspirator’s live testimony.
The majority holds that while Peak “may well have” suffered a constitutional violation,
the Kentucky Supreme Court plurality decision ruling otherwise was not contrary to
clearly established federal law. (Maj. Op. at 2.) Contrary to the majority’s holding, if
the plain language of the Sixth Amendment is not clearly established federal law, then
nothing is. For this reason and the reasons that follow, I dissent.

I. Factual Background

In 2000, Peak was tried in Kentucky state court together with his two alleged co-
conspirators, Patrick Meeks and Leann Bearden, for the 1998 robbery and murder of a
drug dealer later identified as Miguel Garcia. Peak, Meeks, and Bearden became
suspects in the murder when Mike Cissell, who was facing criminal charges on an
unrelated matter, sought leniency by informing the authorities that he had information
as to Garcia’s unsolved murder. Cissell agreed to testify against Peak, Meeks, and
Bearden in exchange for a special deal with the prosecution relating to his involvement
in the crime. Cissell admitted to helping the three dispose of Garcia’s body but
expressly denied assisting them in the murder. Peak, Bearden, and Meeks all pleaded
not guilty.

Prior to trial, Bearden entered into an agreement with the prosecution to
withdraw the possibility of her being subjected to a death penalty sentence, in exchange
for waiving her Fifth Amendment right against self-incrimination and for testifying
against her alleged co-conspirators. At trial, Bearden contended that she introduced
Garcia to Peak and Meeks, and she knew of the plan to murder Garcia and rob him of
a large amount of cocaine. However, although she provided substantial assistance in
No. 09-5977 Peak v. Webb Page 15

facilitating the crime, she did not anticipate that the crime would actually occur.
Importantly, Bearden testified that she did not witness the murder. While she assumed
that Peak killed Garcia, she admitted that she did not know whether Peak was even
present when Garcia was murdered and that she saw only Meeks, and not Peak, with the
firearm.

Peak and Meeks both invoked their Fifth Amendment right against self-
incrimination. However, Meeks had previously submitted himself to police interrogation
regarding the murder, and the interrogation was recorded. The prosecution planned to
play the recorded interrogation to the jury at the trial; although containing hearsay, it
could be played against Meeks as permitted by Kentucky Rule of Evidence 801A(b)(1),
as a party admission.

During the recorded interrogation, Meeks admitted that he was involved in the
robbery and murder and offered details related to the planning and execution of the
crimes. However, he expressly denied that he shot Garcia, and instead accused Peak of
being the triggerman and the ringleader of the conspiracy.

When the prosecution sought to admit into evidence Meeks’ recorded
interrogation, Meeks and Peak both objected. Meeks asserted that his statements were
made under duress and fatigue, given that the interrogation took place in the middle of
the night (between 1:26 am and 2:03am, and between 6:08am and 6:42am). Meeks also
contended that the tactics used by the investigators were coercive and that the
interrogation continued despite his request for an attorney. He thus argued that his
statements should be excluded as unreliable since they were not made knowingly,
intelligently, or voluntarily. The trial court judge rejected Meeks’ argument.

After Meeks failed to prevent the admission of the interrogation, Peak argued that
the recorded interrogation could not be played in totum against him, because many of
Meeks’ confessions contemporaneously shifted the blame to Peak, and the admission of
these statements would violate Peak’s rights under the Sixth Amendment, as interpreted
by Bruton v. United States, 391 U.S. 123 (1968), and Crawford v. Washington, 541 U.S.
36 (2004). The trial court agreed with Peak that playing the recorded interrogation
No. 09-5977 Peak v. Webb Page 16

would violate Peak’s constitutional rights. The trial court therefore required that the
prosecution redact all portions of Meeks’ recorded statement that implicated Peak,
before the tape could be admitted.

In accordance with the trial court’s mandate, the prosecution redacted the
portions of the interrogation where Meeks accused Peak of assisting in the crime.
However, Meeks objected to the redacted version of the tape, because he felt that the
redacted version framed Meeks as the only person involved in the murder and thus
assigned him greater culpability than he felt he deserved. Eventually, the prosecution
and Meeks struck a deal wherein the prosecution would admit and play the entire
unredacted version of Meeks’ interrogation if Meeks would waive his Fifth Amendment
right against self-incrimination. Although this would resolve Meeks’ concerns, Peak
reminded the trial court that the redaction had been ordered for Peak’s benefit, not for
Meeks, so Meeks’ waiver of his Fifth Amendment right did not cure the violation of
Peak’s Sixth Amendment right. Despite Peak’s numerous objections and motions to
exclude the unredacted statement, for a new trial, or for bifurcation of the trials, the trial
court allowed admission of the unredacted interrogation implicating Peak and refused
to sever the trials.

Once the unredacted interrogation was deemed admissible, the trial court
permitted the prosecution to play the tape, including Meeks’ statements implicating
Peak, without the prosecution calling Meeks to the stand. Although Meeks had waived
his Fifth Amendment right, the prosecution never called Meeks to the stand, none of the
defendants called Meeks, and Meeks decided not to testify on his own behalf, in
conformity with his original plan. Each time the tape was played, Peak continued to
object to the violation of his rights under the Sixth Amendment Confrontation Clause,
Bruton, and Crawford. The trial court denied each of Peak’s objections.

Meeks’ recorded statements implicating Peak were played to the jury a total of
three times. The tape was first played to the jury during the prosecution’s direct
examination of a detective. The prosecution played the tape a second time during its
closing statement. Finally, during jury deliberations, the jury requested to hear the
No. 09-5977 Peak v. Webb Page 17

recorded statements again. The jury was brought back into the courtroom and once more
listened to Meeks’ confession implicating Peak. This was the only piece of evidence
that the jury requested to hear or see again.

Meeks’ recorded statements were crucial to the prosecution’s case against Peak.
First, Meeks was the only purported eyewitness to the murder, and thus he provided the
sole eyewitness testimony that it was Peak, and not he, who shot Garcia. Although
Bearden and Cissell gave testimony implying that Peak was the shooter, neither of them
witnessed the shooting and the credibility of both was impeached throughout the trial.
Second, the prosecution did not admit any physical or forensic evidence whatsoever
linking the murder to Peak or Peak to the location where the events allegedly transpired.
Furthermore, the versions of events offered by the witnesses differed greatly, especially
between Bearden’s testimony and Meeks’ recorded statements.

The prosecution itself was aware that the admission of Meeks’ recorded
statements against Peak was the primary, if not only, means of obtaining a conviction
against Peak. During its closing statement, the prosecution argued that Meeks’ recorded
statements against Peak were by themselves enough to convict Peak of the charged
crimes. The prosecution also advised the jury that the fact that Peak did not call Meeks
to the stand to question Meeks’ recorded statements meant that Peak attested to the truth
of the recorded statements.

Ultimately, the jury assigned the greatest culpability to Peak. It convicted Peak
of intentional murder, and convicted Meeks of the lesser charge of wanton murder. Peak
and Meeks received the same sentences with respect to their murder convictions:
imprisonment for life, without the possibility of parole for 25 years. However, Meeks
was only sentenced to ten years for conspiracy to commit murder, whereas Peak was
sentenced to twenty years on that charge. They were also sentenced to 20 years for the
robbery charge and 5 years for the tampering charge, with all sentences running
concurrently.

Peak and Meeks appealed their convictions directly to the Kentucky Supreme
Court. Among other issues, Meeks argued that his recorded interrogation should have
No. 09-5977 Peak v. Webb Page 18

been excluded from evidence as unreliable because his statements therein were not made
knowingly, intelligently, or voluntarily and because he requested a lawyer. The
Kentucky Supreme Court rejected Meeks’ arguments.

Peak appealed the violation of his Confrontation Clause right. A plurality of
justices denied his appeal on that basis, finding no Confrontation Clause error and stating
that even if there was an error, it was likely harmless. The dissenting justices disagreed
and found an egregious violation of Peak’s Confrontation Clause right. This federal
habeas action ensued.

II. The Sixth Amendment’s Confrontation Clause
A. The Purposes of the Confrontation Clause and Heightened
Bruton Concerns
Our Confrontation Clause, penned under the Sixth Amendment to the United
States Constitution, guarantees that accusations against a criminal defendant can be
admitted at trial only once the accusers take the stand and confront the defendant. U.S.
Const. amend. VI. This rule stretches back to seventeenth century English law and even
to the Roman empire. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (“[The Confrontation
Clause] comes to us on faded parchment, with a lineage that traces back to the
beginnings of Western legal culture.” (internal citation and quotation marks omitted));
see Crawford, 541 U.S. at 43–45; White v. Illinois, 502 U.S. 346, 361–62 (1992)
(Thomas, J., concurring); Mattox v. United States, 156 U.S. 237 (1895). “The main and
essential purpose of confrontation is to secure for the opponent the opportunity of cross-
examination.” Davis v. Alaska, 415 U.S. 308, 315–16 (1974) (internal citation and
quotation marks omitted). The right of a defendant to be confronted with his accuser is
“not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but
for the purpose of cross-examination, which cannot be had except by the direct and
personal putting of questions and obtaining immediate answers.” Id. at 316 (internal
citation and quotation marks omitted). The Confrontation Clause was designed to root
out “the principal evil” of using “ex parte examinations as evidence against the
accused.” Michigan v. Bryant, 131 S. Ct. 1143, 1152 (2011) (quoting Crawford, 541
No. 09-5977 Peak v. Webb Page 19

U.S. at 50) (internal quotation marks omitted). “The preference for live testimony . . .
is because of the importance of cross-examination, ‘the greatest legal engine ever
invented for the discovery of truth.’” White, 502 U.S. at 356 (quoting California v.
Green, 399 US. 149, 158 (1970)). Specifically, confrontation “impress[es] [the witness]
with the seriousness of the matter and guard[s] against the lie by the possibility of a
penalty for perjury” as well as “permits the jury that is to decide the defendant’s fate to
observe the demeanor of the witness in making his statement, thus aiding the jury in
assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845–46 (1990) (quoting
Mattox, 156 U.S. at 242, and Green, 399 U.S. at 158) (internal alterations and quotation
marks omitted); see also Davis, 415 U.S. at 316 (noting that cross examination is the
“principal means by which the believability of a witness and the truth of his testimony
are tested”).

In the landmark case of Bruton v. United States, the Supreme Court held that the
credibility and truth-telling concerns of the Confrontation Clause are heightened when
the evidence that the prosecution seeks to admit is a testimonial, hearsay accusation
against the defendant, uttered by a co-conspirator in the course of a confession. 391 U.S.
at 132 (holding that “[t]his prejudice cannot be dispelled by cross-examination if the co-
defendant does not take the stand” (internal citation omitted)); see also Crawford, 541
U.S. at 63–65 (refining the scope of the Confrontation Clause but reiterating concerns
in Bruton related to the admission of a co-conspirator’s accusation); Lilly v. Virginia,
527 U.S. 116, 132 (1999) (“[T]he truthfinding function of the Confrontation Clause is
uniquely threatened when an accomplice’s confession is sought to be introduced against
a criminal defendant without the benefit of cross-examination.” (quoting Lee v. Illinois,
476 U.S. 530, 541 (1986))); Akins v. Warren, 362 F. App’x 508, 512 (6th Cir. 2010) (“A
defendant’s admissions, implicating his or her co-defendants, cannot be introduced at
a joint trial unless the confessing defendant takes the stand.”). The rule of “Bruton
makes clear that the protections of the Confrontation Clause are at their zenith whenever
. . . the prosecution offers into evidence a non-testifying hearsay declarant’s confession
that names the accused as his partner in crime.” Jones v. Basinger, 635 F.3d 1030, 1049
(7th Cir. 2011). This is so because “when one person accuses another of a crime under
No. 09-5977 Peak v. Webb Page 20

circumstances in which the declarant stands to gain by inculpating another, the
accusation is presumptively suspect and must be subjected to the scrutiny of cross-
examination.” Lilly, 527 U.S. at 132 (quoting Lee, 476 U.S. at 541).

B. The Plain Language of the Sixth Amendment Places with the
Prosecution the Burden of Calling Accusers to the Stand
1. The Confrontation Clause Grants Defendants a
“Right” and Not a Mere “Privilege”
The Sixth Amendment commands:

In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.

U.S. Const. amend. VI. The language drafted by our founding fathers and unchanged
since 1791 could not be clearer. The right is conferred in the passive voice: a defendant
has a right “to be confronted with” his accusers, not merely the privilege “to confront”
his accusers. See Coy, 487 U.S. at 1017. “The Confrontation Clause . . . language,
employing the passive voice, imposes a burden of production on the prosecution, not on
the defense.” Thomas v. United States, 914 A.2d 1, 16 (D.C. 2006). “The defendant’s
rights to be informed of the charges against him, to receive a speedy and public trial, to
be tried by a jury, to be assisted by counsel, and to be confronted with adverse witnesses
are designed to restrain the prosecution by regulating the procedures by which it
presents its case against the accused.” Taylor v. Illinois, 484 U.S. 400, 410, 410 n.14
(1988) (emphasis added, internal citation omitted) (comparing this with the Compulsory
Process Clause, which, “on the other hand[,] . . . operates exclusively at the defendant’s
initiative and provides him with affirmative aid in presenting his defense”); see
Bullcoming v. New Mexico, 131 S. Ct. 2705, 2718 (2011) (holding that the prosecution
bears the burden to preserve a defendant’s Confrontation Clause rights).

Because a defendant has the right to be confronted with his accusers, the
prosecution consequently has the burden to confront the defendant. This requires that
the prosecution subpoena the witness, that the prosecution put that accusing witness on
the stand, and that the witness actually testify. It is not the defendant’s obligation to
No. 09-5977 Peak v. Webb Page 21

present the prosecution’s witnesses or to cure the prosecution’s errors. Bullcoming, 131
S. Ct. at 2718; Taylor, 484 U.S. at 410. Recently, the Supreme Court affirmed this basic
premise in Melendez-Diaz v. Massachusetts, reiterating that the Confrontation Clause
requires the prosecution to subpoena an available affiant if it chooses to introduce that
affiant’s ex parte testimonial statement against a defendant. 129 S. Ct. 2527, 2533, 2542
(2009). Although the defendant also could have subpoenaed the affiant, the Court held
that the defendant did not carry that burden:

Converting the prosecution’s duty under the Confrontation Clause into
the defendant’s privilege under state law of the Compulsory Process
Clause shifts the consequences of adverse-witness no-shows from the
State to the accused. More fundamentally, the Confrontation Clause
imposes a burden on the prosecution to present its witnesses, not on the
defendant to bring those adverse witnesses into court.

Id. at 2540. I find no compelling distinction between the present case and Melendez-
Diaz. Bringing the witness to the courthouse would mean little if the witness was not
also obliged to take the stand, just as putting the witness on the stand means little if the
witness lawfully invokes a right or privilege not to testify.

While Melendez-Diaz post-dated the Kentucky Supreme Court decision at issue
here, it did not provide a new or novel interpretation of the Confrontation Clause. See
Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (citing Lockyer v. Andrade, 538 U.S.
63, 71–72 (2003)) (explaining that the reasonableness of a state court decision is to be
measured only against rules that existed at the time the decision was issued). Instead,
Melendez-Diaz performed a “rather straightforward application of [the] holding in
Crawford” and merely confirms the plain language of the Sixth Amendment and its
undisturbed interpretation by the Supreme Court. 129 S. Ct. at 2533. It has always been
clear that the Sixth Amendment is not satisfied where the prosecution presents its
evidence via ex parte testimonials and waits for the defendant to subpoena the witness
(as in Melendez-Diaz) or to call the witness to the stand (as is the case here). The
Confrontation Clause requires that the prosecution call its available witnesses to the
stand to face the defendant, rather than simply making its witnesses available for the
defendant to call.
No. 09-5977 Peak v. Webb Page 22

2. The Crawford Exception

Our Supreme Court has heretofore held that where the prosecution does not put
an accuser on the stand to directly accuse the defendant, it may admit a testimonial,
hearsay accusation against the defendant under only one exception: where the declarant
is unavailable, but the defendant has had a prior opportunity to cross-examine the
declarant with regard to the accusation. See Bryant, 131 S. Ct. at 1153 (“We therefore
limited the Confrontation Clause’s reach to testimonial statements and held that in order
for testimonial evidence to be admissible, the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for cross-examination.”
(internal quotation marks and citation omitted)); Crawford, 541 U.S. at 59.

The Supreme Court has never held that the prosecution may admit a testimonial,
hearsay accusation against the defendant if the declarant is seated in a pew in the back
of the courtroom, but is allegedly willing to testify. The Supreme Court has similarly
never held that a defendant waives his Confrontation Clause right if he fails to call an
available accuser to the stand and cure the prosecution’s violation of his Confrontation
Clause right. There is but one way for the prosecution to admit into evidence a
testimonial, hearsay accusation against a defendant: establish unavailability of the
declarant and show that the defendant had a prior opportunity to cross-examine that
witness.

Moreover, if the defendant does not have the burden to bring the prosecution’s
witnesses to the stand, the defendant cannot be deemed to have waived his rights for
failing to do so. The defendant does not have the duty to cure the prosecution’s
Confrontation Clause errors. Importantly, a defendant is deemed to have waived his
Confrontation Clause right by pleading guilty, stipulating to the admission of evidence,
failing to preserve error, or procuring the unavailability of a witness. See Illinois v.
Allen, 397 U.S. 337, 342–43 (1970); Boykin v. Alabama, 395 U.S. 238, 243 (1969);
United States v. Chun Ya Cheung, 350 F. App’x 19, 21–22 (6th Cir. 2009); United States
v. Johnson, 440 F. 3d 832, 845–46 (6th Cir. 2006). If a defendant must call the
prosecution’s witness, he would be faced with a “catch-22,” wherein he waives his
No. 09-5977 Peak v. Webb Page 23

Confrontation Clause right if he fails to call the prosecution’s witness, but he also waives
his Confrontation Clause right if he calls the witness.

3. Constitutional Prerequisites Support the Plain
Language of the Confrontation Clause
As a matter of policy, if we permit the prosecution to introduce accusations
merely by having potential witnesses present in the courtroom rather than by producing
them as actual witnesses for purposes of confrontation, the prosecution has only to gain
and the defendant has only to lose. In such a situation, a defendant will be forced to
make a choice. On one hand, he could call the prosecution’s witness as a hostile witness
and be permitted to ask leading questions, but he would not have had the opportunity to
immediately cross-examine the witness following the prosecution’s introduction of the
accusation,1 and he would risk the possibility of eliciting unfavorable testimony that
would not otherwise have been presented. In the alternative, the defendant could decide
to avoid these risks by not calling the witness and forgoing the opportunity to question
him altogether. In many instances, the defendant will find that calling the witness is not
worth the risk, as Peak did.

Under the prosecution’s approach, the prosecution is provided with an
overwhelming advantage. If the defendant calls the witness, the prosecution avoids its
responsibility under the Confrontation Clause of producing the witness by putting him
on the stand and is alleviated of its burden to provide direct examination. However, if
the defendant chooses not to call the witness, only the version of the facts that the
prosecution finds helpful to its case is introduced; there is no compliance with the
requirements of the Confrontation Clause, and the prosecution avoids the possibility that
the witness will be effectively cross-examined or change his story in response to cross-

1
If the witness is called by the prosecution and the defendant’s cross-examination followed, the
testimony would be presented with some immediacy, satisfying the Confrontation Clause requirement.
See Davis, 415 U.S. at 316 (holding that the Confrontation Clause requires “cross-examination, which
cannot be had except by the direct and personal putting of questions and obtaining immediate answers”
(internal citation and quotation marks omitted)). The majority states that there is no requirement that the
ability to cross-examine be immediate, (see Maj. Op. at 11); however, it is notable that the majority has
not cited any legal authority to support that contention.
No. 09-5977 Peak v. Webb Page 24

examination, and thereby jeopardize the prosecution’s case. The prosecution also avoids
the responsibility of being the proponent of the witness’ testimony.

Indeed, in this case, the prosecution likely did not call Meeks to the stand
because Meeks disputed the reliability and veracity of his recorded admissions and
accusations and would likely discredit the prosecution’s evidence. By purporting to
resolve the Confrontation Clause violation against Peak by merely requiring Meeks to
waive his Fifth Amendment right but not put him on the stand, the trial court permitted
the prosecution to introduce all of the testimonial, hearsay evidence that it hoped to
admit but avoid the introduction of any contradictory evidence. The prosecution should
not be permitted to resort to such opportunistic manipulation. “The Confrontation
Clause may make the prosecution of criminals more burdensome, but that is equally true
of the right to trial by jury and the privilege against self-incrimination.” Melendez-Diaz,
129 S. Ct. at 2540.

4. Right Against Self-Incrimination

A defendant’s Fifth Amendment right against self-incrimination may also be
implicated by the defendant being forced to call a witness who is expected to incriminate
the defendant in order for the defendant to avail himself of his Confrontation Clause
right. Because the defendant would be the party calling the witness, the defendant could
easily be placed in the untenable position, in front of the jury, of appearing to be the
proponent of the witness’ testimony which ends up incriminating the defendant. United
States v. Hubbell, 530 U.S. 27, 36–38 (2000) (discussing right against self-
incrimination); Schmerber v. California, 384 U.S. 757, 761 (1966). Neither the right
against self-incrimination nor the Confrontation Clause right is subordinate to the
other—such that a defendant can be forced to relinquish one right in order to assert the
other. See Simmons v. United States, 390 U.S. 377, 394 (finding a defendant’s
compelled election between his Fourth and Fifth Amendment rights to be “intolerable”);
see also McGautha v. California, 402 U.S. 183, 213 (1971) (holding that “the threshold
question is whether compelling the election [between constitutional rights] impairs to
an appreciable extent any of the policies behind the rights involved”).
No. 09-5977 Peak v. Webb Page 25

III. AEDPA and the Kentucky Plurality Decision

A. AEDPA, Generally

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254, permits us to grant habeas relief only where a state court judgment “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
“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).
Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). A decision is contrary to clearly established federal
law if “the state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides a case differently than this Court
has on a set of materially indistinguishable facts.” Id. at 412–13. An unreasonable
application of clearly established federal law occurs where “the state court identifies the
correct governing legal principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Id. at 413; Harrington v.
Richter, 131 S. Ct. 770, 785 (2011). We ask whether “fairminded jurists could disagree”
as to the decision. Harrington, 131 S. Ct. 786 (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)). We are reminded that an unreasonable application of law is
different from an incorrect application of law. Williams, 529 U.S. at 410; Harrington,
131 S. Ct. 785.

B. Habeas Relief Under AEDPA is Warranted in Peak’s Case

Peak’s Confrontation Clause right was unquestionably violated. At Peak’s trial,
the prosecution admitted into evidence over Peak’s objection—and played three
times—his non-testifying, co-conspirator’s testimonial hearsay confession implicating
Peak as the triggerman. Meeks never took the stand, and the exception in Crawford did
not apply because Meeks was available and Peak had not had a prior opportunity to
No. 09-5977 Peak v. Webb Page 26

cross-examine him. This constitutional violation is clear under the simplest, most
straightforward application of the Confrontation Clause and Supreme Court
jurisprudence, as outlined above. See Lilly, 527 U.S. at 131 (“[T]he admission of a
nontestifying accomplice’s confession, which shifted responsibility and implicated the
defendant as the triggerman, ‘plainly denie[s] the defendant the right of cross-
examination secured by the Confrontation Clause.’” (quoting Douglas v. Alabama, 380
U.S. 415, 419 (1965)) (internal alteration omitted)).

Despite this incontrovertible violation, the Kentucky Supreme Court plurality
ruled that Peak’s Confrontation Clause rights were not violated. The Kentucky Supreme
Court thus unreasonably applied the Sixth Amendment to Peak’s case and unreasonably
extended a legal principle that permits the use of testimonial hearsay when the
prosecution is unable to call its witnesses to the stand, see Crawford, 541 U.S. at 42–43,
to situations where the prosecution is able to do so but chooses not to. It also permitted
the admission of a non-testifying accomplice’s confession implicating Peak, contrary to
the rule in Bruton, 391 U.S. at 132. Habeas relief is therefore warranted under the
standards set forth in § 2254(d)(1), as interpreted by Williams and Harrington, and their
progeny.

Also indicative of the Kentucky Supreme Court’s unreasonable application of the
Confrontation Clause in Peak’s case is the fact that the Kentucky Supreme Court itself
recently reconsidered the issue and came to the opposite conclusion. See Coleman v.
Commonwealth, No. 2008-SC-72-MR, 2009 Ky. Unpub. LEXIS 128 (Ky. Oct. 29,
2009). The Kentucky Supreme Court majority in Coleman correctly held that there is
a Confrontation Clause violation where the prosecution admits witnesses’ untested
accusations against a defendant without calling the witnesses to the stand, despite the
fact that “the witnesses [are] present in the courthouse under the prosecution’s
subpoena” and are able and allegedly willing to testify. Id. at *10–11. The Kentucky
Supreme Court went so far as to hold that “[t]he only possible conclusion” in this
situation is that the defendant’s “[Confrontation Clause] rights were violated.” Id. at
*12. While the fact that the relevant Coleman and Peak factual scenarios are nearly
No. 09-5977 Peak v. Webb Page 27

identical but yielded different results does not necessarily establish unreasonableness
under § 2254(d)(2), it does “raise[] a red flag to possible ‘extreme malfunctions in the
state criminal justice system.’” Rice v. White, 660 F.3d 242, 255 (6th Cir. 2011).

Finally, one of our sister circuits recently applied Crawford to a habeas claim
nearly identical to Peak’s claim. See Jones v. Basinger, 635 F.3d 1030, 1041 (7th Cir.
2011). In Jones, during a defendant’s trial for robbery and murder, the prosecution
admitted a testimonial, hearsay accusation of a declarant who had been subpoenaed by
the prosecution and was available to testify, without calling that witness to the stand.
Id. The court found “no reasonable room for doubt” that the Confrontation Clause was
violated by this conduct and that habeas relief was warranted due to the state court’s
clear error, “beyond any possibility for fairminded disagreement,” in permitting such a
violation. Id. at 1043, 1052.

In sum, the Kentucky Supreme Court plurality was objectively unreasonable in
its application of the Sixth Amendment, and its decision was contrary to clearly
established federal law.

C. Specific Problems with the Majority’s Acceptance of the
Kentucky Supreme Court Plurality’s Decision
Despite the centuries old rule that the prosecution must put its witnesses on the
stand, the majority here suggests that it was not unreasonable for a Kentucky Supreme
Court plurality to interpret the Confrontation Clause to mean that so long as the
prosecution’s witnesses are sitting in a pew in the back of the courtroom and allege that
they are willing to testify, the defendant’s right to be confronted with his accusers is
satisfied—even if the prosecution has admitted those witnesses’ untested, out-of-court
accusations into evidence without calling them to the stand. The majority would grant
the defendant the mere privilege of calling the prosecution’s witnesses to the stand, on
his own initiative, rather than the right, in the language of the Sixth Amendment, “to be
confronted with” those witnesses. This is in direct contradiction to the plain language
of the Sixth Amendment and our Supreme Court’s jurisprudence. See Section II, supra.
No. 09-5977 Peak v. Webb Page 28

The majority endeavors to explain its irrational decision. Specifically, the
majority believes that the Kentucky Supreme Court plurality’s decision was not
unreasonable, because although “some points [of] Crawford seem[] to equate
confrontation with cross-examination[,] . . . Crawford also contains language that
suggests that confrontation requires only that the witness be made available to be called
at trial, not that the witness be put on the stand for immediate cross-examination.” (Maj.
Op. at 10–11.) This latter proposition is flatly incorrect. Although Supreme Court
jurisprudence includes language such as “appears at trial,” see Crawford, 541 U.S. at
53–54, 59; Davis, 547 U.S. at 822 n.1 (drawing language from Crawford), this language,
standing alone and as used by the majority, is ripped from its context. The language at
issue in Crawford is as follows: “the Framers would not have allowed admission of
testimonial statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for cross-examination,”
Crawford, 541 U.S. at 53–54, “[the English common law] conditioned admissibility of
an absent witness’s examination on unavailability and a prior opportunity to cross-
examine,” id. at 54, and “[t]estimonial statements of witnesses absent from trial have
been admitted only where the declarant is unavailable, and only where the defendant has
had a prior opportunity to cross-examine,” id. at 59. The crucial difference between the
circumstances of the present case and the holding in Crawford is that in each of these
statements, the Supreme Court frames the Crawford test as applying to situations where
the prosecution was unable to call the witnesses to the stand, not situations where the
prosecution was able to call the witness to the stand but simply chose not to, as in the
instant case.

Furthermore, as discussed above, the plain meaning of “appear at trial,” in the
Confrontation Clause context, must mean that the accusers are brought to the stand by
the prosecution and not merely that they are in the courtroom. For a witness to be in the
courtroom but not testify—or for a witness take the stand but refuse to testify—would
render meaningless the design of the Confrontation Clause to prevent the evils of the use
of ex parte examinations against the defendant. Bryant, 131 S. Ct. 1152. It would fail
to address the need for the witness to be sworn in and impressed with the seriousness of
No. 09-5977 Peak v. Webb Page 29

the matter, the defendant’s cross-examination, and the jury’s ability to decide the
witness’ credibility first-hand. Green, 399 U.S. at 158; Craig, 497 U.S. at 845–46.
Moreover, the defendant cannot be required to cure the prosecution’s error of failing to
call the witness to the stand by the defendant calling the witness as a hostile witness and
asking leading questions, because the Supreme Court has interpreted the plain language
of the Confrontation Clause as providing defendant with a right and not a privilege.
Taylor, 484 U.S. at 410.

The other allegedly problematic language in Crawford, which the Kentucky
Supreme Court plurality explicitly relied on in making its decision, is similarly taken out
of context. Footnote nine of Justice Scalia’s majority opinion provides, “When the
declarant appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements. . . . The Clause does not
bar admission of a statement so long as the declarant is present at trial to defend or
explain it.” Crawford, 541 U.S. at 59 n.9. That footnote was part of a discussion of
scenarios where, again, a witness was actually put on the stand by the prosecution to
testify, but the reliability of his testimony was at issue. Thus, the “present at trial”
language did not provide a new interpretation of the Sixth Amendment that permits the
admission of testimonial hearsay when the declarant is merely seated in the courtroom
but not brought to the stand. The reasoning of the Kentucky Supreme Court’s dissent
on this matter is persuasive:

[In that footnote], Justice Scalia was responding to concerns expressed
in Chief Justice Rehnquist’s dissenting opinion that the reliability of
some out-of-court statements “cannot be replicated even if the declarant
testifies to the same matters in court.” . . . Obviously, both Justice Scalia
and Chief Justice Rehnquist were assuming that the declarant would
testify, but the Chief Justice believed that the prior statement might be
more reliable than the in-court testimony.

Peak v. Commonwealth of Kentucky, 197 S.W.3d 536, 550–51 (Ky. 2006) (Cooper, J.,
concurring in part and dissenting in part). It was thus patently unreasonable for the
Kentucky justices in the plurality to use the “present at trial” language in footnote nine
to reject the plain language of the Sixth Amendment.
No. 09-5977 Peak v. Webb Page 30

IV. The Majority and Concurrence Misread Recent Supreme Court
Cases as Increasing the Level of Deference Under AEDPA
While it is clear that Peak has demonstrated his right to habeas relief under even
the strictest interpretation of AEDPA, it is also the case that the two judges in the
majority here incorrectly interpreted Harrington and two subsequent cases, Greene v.
Fisher, 132 S. Ct. 38 (2011), and Bobby v. Dixon, 132 S. Ct. 26 (2011) (per curiam), as
increasing AEDPA’s deference to state courts beyond that originally required by
Williams.

In Williams, the Supreme Court interpreted the language of § 2254(d) and
outlined an objective reasonableness standard. 529 U.S. at 409. It noted that an
“unreasonable” application of federal law is different from an “incorrect” application of
federal law. Id. at 410. As discussed supra, the Supreme Court in Williams further
explained § 2254(d)(1) by defining its terms. After Williams, we granted habeas relief
in a number of situations, finding various state courts’ decisions to be objectively
unreasonable because they were contrary to or involved an unreasonable application of
clearly established federal law. See, e.g., Rice, 660 F.3d at 242.

Harrington involved another application of AEDPA by the Supreme Court.
131 S. Ct. at 783. The Harrington Court cited Williams for the interpretation of
§ 2254(d) and decided that when a state court denies relief unaccompanied by
explanation, the reasonableness standard in § 2254(d) still applies to habeas review. Id.
at 785. In the course of explaining its decision, the Court further cited language that
relief under AEDPA should be granted “where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with this Court's precedents.” Id.
at 786; see also Bobby, 132 S. Ct. at 27 (same).

The majority interprets Harrington’s reference to “fairminded jurists,” see 131 S.
Ct. at 786, as setting a higher standard than the objective reasonableness standard
provided in Williams. But the “fairminded jurists” term originates from Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004), which itself applies Williams’ objective
unreasonableness standard. 541 U.S. at 665–66. Importantly, this Court has explained,
No. 09-5977 Peak v. Webb Page 31

without contradiction by the Supreme Court, that the “fairminded jurist” language is just
another way of phrasing the objective unreasonableness standard. Wiggins v. Parker,
423 F. App’x 534, 537 (6th Cir. 2011) (“Only if the state court’s decision was
‘objectively unreasonable,’ Sanborn v. Parker, 629 F.3d 554, 577 (6th Cir. 2010), only
if in other words no ‘fairminded jurists’ could resolve the case the way the state courts
did, Harrington v. Richter, 131 S. Ct. 770, 786 (2011), may we grant the writ.”). We
have already considered and applied AEDPA following Harrington and have continued
to apply Williams’ objective unreasonableness standard of review and level of deference.
See Rice, 660 F.3d at 249–51, 254. Our Circuit has not been alone in doing so. See, e.g.,
Jones, 635 F.3d at 1044; Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011); Elmore v.
Ozmint, 661 F.3d 783 (4th Cir. 2011); Guzman v. Sec’y, Dep’t of Corrections, 663 F.3d
1336 (11th Cir. 2011); Blystone v. Horn, 664 F.3d 397 (3rd Cir. 2011). Finally, given
the number of AEDPA cases decided by the Supreme Court in recent years, it is safe to
assume that had the Supreme Court sought to raise the Williams level of deference to be
given to state court judgments, it would have said so. See, e.g., Howes v. Fields, No. 10-
680, ___ U.S. ___, slip op. at 4 (Feb. 21, 2012); Cullen, 131 S. Ct. at 1399; Harrington,
131 S. Ct. at 785; Thaler v. Haynes, 130 S. Ct. 1171, 1173–74 (2010); Wood v. Allen,
130 S. Ct. 841, 849 (2010); Smith v. Spisak, 130 S. Ct. 676, 681 (2010). In none of these
cases does the Supreme Court state that Williams is overruled; indeed, in each of these
decisions, the Supreme Court continues to cite Williams’ mandates under AEDPA.

The majority’s misunderstanding of the effect of Harrington and other recent
cases affects its analysis. In erroneously interpreting Harrington’s “fairminded jurists”
language as setting a new, higher standard for AEDPA review, the majority holds that
because “four such fairminded justices of the Kentucky Supreme Court did disagree”
that the Confrontation Clause was not violated, we are “compelled” to grant deference
under AEDPA. (Maj. Op. at 2.) In other words, because we are to presume that the
justices are fairminded, the majority reasons, we must conclude that their decisions are
similarly fairminded.
No. 09-5977 Peak v. Webb Page 32

The majority erroneously defers to the Kentucky Supreme Court justices’ status
as state court judges, rather than their legal analysis. Though the AEDPA standard is
“difficult to meet,” Harrington, 131 S. Ct. at 786, the majority’s interpretation makes the
standard impossible to meet, as no habeas claim would reach our Court unless a jurist
presumed to be fairminded had not already once decided the issue against the defendant.
Contrary to the majority’s argument, the “fairminded jurist” references in Harrington
and Bobby cannot be understood to suggest a subjective reasonableness test or, worse,
complete deference to state court judges. The level of deference advocated by the
majority subverts rather than illuminates the Supreme Court’s standard inasmuch as it
would essentially render the Great Writ of Habeas Corpus completely meaningless. As
we recently held, “[d]espite the great deference accorded state court adjudications of
federal claims, AEDPA, of course, ‘stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings.’” Rice, 660 F.3d at 251
(quoting Harrington, 131 S. Ct. at 786). “Federal courts retain statutory and
constitutional authority, absent suspension of the writ, to remedy detentions by state
authorities that violate federal law, so long as the procedural demands of AEDPA are
satisfied.” Rice, 660 F.3d at 251.

Finally, the concurrence fixates upon the “extreme malfunctions” language in
Greene.2 (Con. Op. at 13). That language is also offered in Harrington and was lifted
from Justice Stevens’ concurrence in Jackson v. Virginia, 443 U.S. 307, 322 n.5 (1979).
It was already in existence in Supreme Court jurisprudence when Williams was decided
and does not alter Williams’ objective unreasonableness standard. See Rice, 660 F.3d
at 251, 255. Nor does it set some new, higher standard, as the concurrence appears to
suggest. In any event, the state court’s interpretation of the Confrontation Clause in this
case was indeed an extreme malfunction. See Jones, 63 F.3d at 643.

2
That language reads, “We have said that [the § 2254(d)] standard of ‘contrary to, or involving
an unreasonable application of, clearly established Federal law’ is ‘difficult to meet,’ because the purpose
of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the
state criminal justice systems,’ and not as a means of error correction.” Greene, 132 S. Ct. at 43 (quoting
Harrington, 131 S. Ct. at 786) (internal alteration and quotation marks omitted).
No. 09-5977 Peak v. Webb Page 33

In conclusion, the Kentucky Supreme Court plurality’s decision to uphold the
admission of Meeks’ ex parte accusation against Peak, without the prosecution calling
Meeks to the stand despite its ability to do so, is both contrary to and an unreasonable
application of the Sixth Amendment and Supreme Court jurisprudence, see 28 U.S.C.
§ 2254(d)(1), because our Constitution has always required the prosecution to bring
accusers to the stand to face the accused. U.S. Const. amend. VI. The majority has also
misread recent AEDPA jurisprudence to raise the bar for federal habeas relief to an
impossible height. I would therefore reverse and grant the writ.

Given the United States Supreme Court’s steadfast protection of our country’s
Sixth Amendment Confrontation Clause right, I am hopeful that the Supreme Court will
consider this matter on petition for writ of certiorari.