Childers v. Floyd

TJOFLAT, Circuit Judge,

dissenting:

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1218-19 (1996), amended provisions of 28 U.S.C. § 2254. As amended, § 2254 prohibits a federal court from granting a writ of habeas corpus with respect to a claim that was adjudicated on the merits in a state proceeding unless the adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The First District Court of Appeal of Florida, in affirming the convictions of Wyon Dale Childers, rejected Childers’s claim that the trial court abused its discretion in precluding him from impeaching Willie J. Junior with two pieces of evidence that, according to Childers, would have exposed Junior’s bias or motive to be untruthful: (1) the State Attorney’s attempted revocation of the State’s sentencing recommendation in Junior’s plea agreement by filing a Notice of Revocation of Terms of Plea Agreement, and (2) the not guilty verdict the jury returned at the trial of Joseph Franklin Elliott. The District Court of Appeal rejected Childers’s claim under Fla. Stat. § 90.403 because the probative value of such evidence was outweighed by the prejudice it would have caused if presented to the jury. Childers contends that the District Court of Appeal’s decision denied him his Sixth Amendment right of confrontation and requires the vacation of his convictions. This court agrees and directs the district court to issue a writ of habeas corpus. I respectfully dissent.

I dissent because the court, in granting the writ, ignores the commands of AEDPA and Supreme Court precedent, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). That is, instead of determining whether the District Court of Appeal’s § 90.403 ruling is “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), in effect at the time of the ruling, as required by Teague and Williams, the court disregards AEDPA, Teague and Williams, and adjudicates Childers’s Confrontation Clause claim as if AEDPA and those decisions were nonexistent. In part I, I demonstrate that under AEDPA, Teague, and Williams, Childers is not entitled to federal habeas relief because the District Court of Appeal applied § 90.403 in a manner *796that was not contrary to clearly established federal law. In part II, I show how this court’s decision runs afoul of the clear mandates of AEDPA, Teague, and Williams and, moreover, casts a pall over the review of Federal Rule of Evidence 403 rulings in the cross-examination context in this circuit.

I.

A.

On April 30, 2002, an Escambia County grand jury returned separate indictments against Willie J. Junior, Joseph Franklin Elliott, and Georgann Elliott.1 Junior, a member of the Board of Commissioners of Escambia County (the “Commission”) for the previous seventeen years, was charged with bribery (four counts), extortion (four counts), racketeering, and grand theft. Joseph Elliott was charged with bribery, racketeering, and money laundering, and Georgann Elliott was charged with conspiracy to commit bribery, principal to bribery, and money laundering.

On June 14, 2002, Junior, still a member of the Commission but under suspension, met with investigators from the State Attorney’s Office. Three days later, on June 17, Junior entered into a plea agreement with the State Attorney, which called for him to plead nolo contendere to all charges in exchange for the State Attorney’s recommendation at sentencing that the court sentence him to a term of incarceration of not more than eighteen months. The plea agreement required Junior to “testify truthfully in any and all criminal prosecutions against any and all defendants in which he is called to testify by the State.” In the event of his “refusal to cooperate” or his provision of “statements or testimony that are incomplete or untruthful,” the District Attorney could revoke the plea agreement with respect to his sentencing recommendation,2 meaning that Junior would be subject to maximum statutory penalties totaling 125 years.

The same day Junior and the State Attorney entered into this plea agreement, an Escambia County grand jury indicted Wyon Dale Childers for bribery, extortion, racketeering, grand theft, money laundering, and unlawful compensation or reward for official behavior. At the time, Childers was in the second year of his six-year term on the Commission.

On September 17, 2002, Junior pled nolo contendere to the charges lodged against him, and thereafter testified for the State in the other cases. The trial of Georgann Elliot took place first, on November 4, 2002. It ended in a mistrial after the six-person jury deadlocked three to three. Joseph Elliott went to trial on December 2, 2002, and the jury acquitted him. Childers’s trial began on March 31, 2003, and lasted nine days. The jury found him guilty on the bribery and unlawful compensation charges, and acquitted him of the remaining charges.

The charges in Childers’s ease, as in the others, were rooted in Escambia County’s purchase of the Pensacola Soccer Complex from Joseph Elliott. According to the State, Childers offered Junior $40,000 for his vote in favor of the purchase; Childers would pay Junior from the kickbacks they *797would receive from Joseph Elliott after the deal closed.

Junior testified for the State at the Elliott trials. Childers’s counsel, having observed those trials, knew that Junior would be the State’s key witness against their client and that his credibility would be crucial to the State’s case. To attack his credibility, counsel armed themselves with the transcripts of the testimony Junior had previously given under oath. In addition to testifying at the Elliott trials, he had been examined under oath, and at length, on some eight occasions' — before the Escambia County grand jury and at pretrial depositions taken by counsel representing the Elliotts and Childers. Childers’s attorneys also had the substance of statements Junior had made State Attorney investigator Allen Cotton on January 17 and 31, 2003, several weeks after Joseph Elliott’s acquittal. Those statements differed from statements he previously had made. Specifically, while he earlier testified that Childers presented him with a note that said “100/100” on it (referring to the amount of money to be exchanged) without any conversation, he told Cotton that Childers told him, while passing the note, that “if the soccer complex goes through, it will be a hundred for you and a hundred for me.” Junior had also testified that the note passing occurred after the Commissioners voted to appraise the value of the soccer complex, but before they voted to purchase it. He told Cotton that Childers passed him the note before the vote on the appraisal. Lastly, while he had previously maintained that Childers had given him a money-filled cooking pot without comment, he revised this to say that Childers told him that Childers had removed different amounts of cash from the pot.

As a result of Junior’s January 17 and 31 disclosures, the State Attorney filed a Notice of Revocation of Terms of Plea Agreement (the “Notice of Revocation”) on February 4, 2003, notifying Junior, and the court, that the State would revoke the State’s sentencing recommendation for failing to comply with the terms of the plea agreement. Junior’s nolo contendere pleas would remain in full effect, but he would be subject to the 125-year statutory maximum (if the court imposed consecutive sentences for the offenses to which he had pled nolo contendere) rather than a total sentence of up to eighteen months, as the plea agreement recommended.

On March 13, 2003, the court held a hearing on the State Attorney’s Notice of Revocation. An Assistant State Attorney argued that the information Junior gave Cotton on January 17 and 31 constituted “new statements, new testimony, new evidence that he had never before provided.” Junior “waitfed] seven months ... [and gave] eight different sworn testimonies” before providing the State Attorney’s Office with “the information that he gave ... on January 17th and January 31st .... [T]hat is substantial noncompliance.”

The court disagreed, with this statement:

[T]he written plea agreement states that Mr. Junior was to testify truthfully and completely, a subjective test at best. The statements he made on January the 17th and 31st with State Attorney investigators, even if materially different from other statements and information previously given, were not under oath at a trial or hearing, and it does not indicate anything other than his willingness to assist the State in accordance with the plea agreement.
Finally, the State in their written response and yesterday during oral argument, re: response to W.D. Childers’ motion to exclude the testimony of Willie Junior, acquiesced that Mr. Junior has *798consistently maintained and testified to certain material evidence.
In conclusion, the Court finds that there has been substantial compliance with the written plea agreement, and for that reason the State is without basis ... to revoke it. Therefore, the State’s Notice of Revocation of Terms of Plea Agreement is set aside.

On March 20, 2003, the State filed six motions in limine.3 Relevant here is the State’s third motion, designed to exclude any “mentioning, arguing, or introducing” evidence of Joseph Elliott’s acquittal during Childers’s cross-examination of Junior. The State contended that the verdict was irrelevant, and that even assuming its relevance, the acquittal would be “more prejudicial than probative.” In a response filed on March 27, Childers argued that the not guilty verdict was highly relevant to his attempt to impeach Junior’s credibility as the State’s star witness, based on Junior’s prior inconsistent statements.4

The court scheduled a hearing on the motion for March 31. On the morning of the hearing, Childers, assuming that he could bring the Notice of Revocation to the jury’s attention in cross-examining Junior, moved the court in limine to prevent the State from asking Junior, on redirect, what the court’s response was to the Notice of Revocation and then introducing the court’s ruling verbatim.

At the hearing, the court first addressed the State’s motion. The State argued that evidence of Elliott’s acquittal, whether introduced during Junior’s cross-examination or as an exhibit, would be highly prejudicial and, at best, only minimally relevant. Childers, responding, argued that the acquittal was relevant to show Junior’s “state of mind” when he met with Inspector Cotton on January 17 and 31, implying that Junior thought that he had to alter his version of some of the critical events to ensure that the jury convicted Childers and, thus, compliance with his plea agreement. Childers contended that the Confrontation Clause, U.S. Const, art. VI, and Hair v. State, 428 So.2d 760, 761-63 (Fla.3d Dist.Ct.App.1983), entitled him to cross-examine Junior about the acquittal. The court agreed with the State and ruled that evidence of the Elliott acquittal would be excluded at trial, finding that if the acquittal were introduced, the “prejudice” it would cause “would outweigh any probative value” the evidence might have.5

Having disposed of the State’s motion in limine, the court turned to the in limine motion Childers had filed to preclude the State from countering his cross-examination of Junior about the Notice of Revocation by introducing the court’s ruling that the State could not revoke the sentencing recommendation it made in the plea agreement.6 The court informed Childers that, if he wanted to cross-examine Junior about the Notice of Revocation, the State would be permitted to inform the jury of the court’s ruling. Childers rejected the *799court’s offer. The court returned to the issue later in the hearing, stating that both the Notice of Revocation and the court’s rejection thereof were irrelevant and thus inadmissible.

Childers’s trial began on April 1, 2003. In cross-examining Junior, Childers did not renew his effort to get the acquittal or Notice of Revocation before the jury. As this court points out in its opinion, however, Childers cross-examined Junior extensively, questioning him for approximately ten hours. Maj. Op. at 783. This court also observes that Childers “elicited the details of Junior’s plea agreement and impeached Junior’s testimony with prior inconsistent statements.” Id. Despite this withering cross-examination, the jury credited Junior’s testimony, finding Childers guilty of bribery and unlawful compensation or reward for official behavior.

Childers moved for a new trial on April 17, 2003, arguing that the court’s rulings excluding evidence of the Elliott acquittal and the Notice of Revocation constituted denials of his right of confrontation. On May 16, 2003, the court denied the motion and sentenced Childers to concurrent prison terms of forty-two months. Childers thereafter appealed his convictions to the First District Court of Appeal.

B.

In his brief to the District Court of Appeal, Childers presented one issue: whether the trial court “abused its discretion when it denied [Childers] his Sixth Amendment constitutional right to fully cross-examine [the] key prosecution witness to expose his bias or motive to be untruthful.” In the argument section of his brief, as set out in the margin below, Childers contended that the trial court’s denial of his right of cross-examination also infringed his rights under the Florida Constitution, Fla. Const, art I, § 16, Fla. Stat. § 90.608, and Florida case law.7 The denial occurred when the court ruled that he could not cross-examine Junior about the State Attorney’s Notice of Revocation and the Elliott acquittal. That verdict, he contended, was the reason why Junior went to the State Attorney’s office on January 17 and 31, 2003, with a further, and more incriminating, explanation of his dealings with Childers.

The District Court of Appeal declined to address Childers’s Confrontation Clause argument, although it adjudicated the facts on which the argument relied, and affirmed his convictions after concluding that the trial court had excluded the Notice of Revocation and the Elliott acquittal in conformance with the Florida law of evidence. Childers v. State, 936 So.2d 585, 592-96 (Fla. 1st Dist.Ct.App.2006) (en banc) (per curiam). The court rejected Childers’s Notice of Revocation argument under Fla. Stat. § 90.403, Florida’s counterpart to Federal Rule of Evidence 403.8 Section *80090.403 (“Florida 403”), “Exclusion on grounds of prejudice or confusion,” states: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” The District Court of Appeal held that the probative value of the Notice of Revocation line of questioning was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury.9 Addressing the “probative value” side of the Florida 403 scale, the court said this:

First, the evidentiary impact of the notice was reduced substantially when the trial court ruled that Junior had complied with the plea agreement and denied the attempted revocation. Certainly, as the trial court stated when ruling on the inadmissibility of the notice of revocation, if the notice to revoke were admitted into evidence, the trial court’s order denying the motion would be allowed into evidence as well.
[Moreover,] the evidence in question actually had little probative value in [Childers’s] defense, as its admission would have resulted in the jury hearing that the trial court had found Junior to be in compliance with his agreement to testify “truthfully.” This, no doubt, explains why [Childers] attempted to exclude the trial court’s ruling .... [Further,] the evidence which [Childers] attempted to admit here involved another proceeding, Junior’s criminal case. As was the case with the evidence in Marchina [v. State, 702 So.2d 1369 (Fla. 1st Dist.CtApp.1997)], here the limited probative value of the State’s Notice to Revoke was far outweighed by unfair prejudice to [Childers] himself and the State.
Second, from the testimony of both Investigator Cotton and Junior, the jury learned that the State could revoke Junior’s plea agreement if he did not testify truthfully. Thus, the notice would serve merely to emphasize facts already in evidence.
Finally, [Childers’s] counsel vigorously and extensively cross-examined Junior on his plea agreement and the State’s right to revoke the agreement if Junior failed to testify truthfully.
[Moreover,] defense counsel ably demonstrated to the jury that Junior had changed his testimony by January 2003.

Childers, 936 So.2d at 593-94.10

The court then quoted from the trial transcript several excerpts of Junior’s *801cross-examination. It ended its discussion of the probative value of the Notice of Revocation with this finding:

Thus, the jury was well aware of the plea agreement, the State’s ability to revoke it, and Junior’s motivation to cooperate created by the threat of revocation. The introduction of the notice to revoke and the order denying the motion would have added little of probative value to what the jury had before it.

Id. at 595.

Next, the court weighed the factors on the “danger” side of the Florida 403 scale, which counseled the exclusion of the Notice of Revocation, with these statements:

[T]he introduction of the notice to revoke would have been highly prejudicial. The admission of the notice would have been similar to admitting an opinion by the State concerning Junior’s character, truthfulness, and credibility. Such opinion testimony regarding a witness’ reputation for truthfulness is clearly inadmissible. See Antone v. State, 382 So.2d 1205, 1213-14 (Fla.1980) (holding improper a question of a witness which sought “to elicit the individual and personal view of the witness.”); Hernandez v. State, 575 So.2d 1321, 1322 (Fla. 4th DCA 1991) (holding that it was reversible error to admit testimony of police officers and teacher that sexual abuse victim was truthful. “A witness invades the jury’s exclusive province when that witness gives his or her personal views of the credibility of another witness.”); Alvarado v. State, 521 So.2d 180, 181 (Fla. 3d DCA 1988) (holding that an opinion of a witness concerning his or her belief as to the truthfulness of another witness “was clearly inadmissible.”); Morrison v. State, 818 So.2d 432, 451 (Fla.2002) (holding that it was improper to allow personal opinion to establish reputation for truthfulness without laying a foundation based on knowledge of the witness’ reputation in community for truthfulness); Wyatt v. State, 578 So.2d 811, 813 (Fla. 3d DCA 1991) (holding that section 90.405, Florida Statutes, does not permit opinion testimony regarding evidence of character); Ehrhardt, Florida Evidence § 405.2 at 258 (“Opinion testimony concerning a person’s character has traditionally been inadmissible on the basis that it is too unreliable; it will be tainted by the underlying prejudice and bias of the person expressing the opinion.”) (footnote omitted). In our view, the type of testimony sought to be introduced by [Childers] was likely to distract the jury during their deliberations; improperly influence the jury’s evaluation of Junior’s veracity, where the credibility of his testimony was a central issue; and prejudice the State’s case with unreliable evidence. Because the prejudice to the State that would be created by the admission of the notice to revoke substantially outweighs the very limited probative value of this evidence, the notice was excludable under section 90.403, Florida Statutes.

Id. at 595-96.

Having disposed of the argument regarding the Notice of Revocation, the District Court of Appeal turned to the argument that the trial court abused its discretion in denying Childers the right to cross-examine Junior about his state of mind following Joseph Elliott’s acquittal. The court summarily rejected the argument with a statement that, under Florida law, “[v]erdicts from other cases are *802generally inadmissible.” Id. at 596 (citing Secada v. Weinstein, 568 So.2d 172, 173-74 (Fla.3d Dist.Ct.App.1990)). Since the court was reviewing the trial court’s ruling under the abuse of discretion standard, the court was effectively holding that the trial court had not abused its discretion in excluding evidence of the Elliott verdict.

C.

After the Florida Supreme Court denied review, Childers petitioned the district court, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus. His case was referred to a magistrate judge, who issued a report and recommendation recommending the denial of Childers’s petition. The report and recommendation did not address the facts the District Court of Appeal found in concluding that the trial court had not abused its discretion in denying Childers the right to cross-examine Junior with the Notice of Revocation and the Joseph Elliott verdict; rather, it reasoned that since Childers was able to extensively cross-examine and impeach Junior without asking him about the Notice or the verdict, Childers’s Confrontation Clause rights were not denied. The district court adopted the magistrate’s report and recommendation verbatim and denied Childers a writ of habeas corpus. Childers then appealed to this court. On December 30, 2008, we issued a certificate of appealability on one issue: “Whether the district court erred in finding that Childer’s [sic] right to confrontation was not unconstitutionally curtailed?”

D.

Section 2254, as amended by AEDPA, bars a federal court from granting a writ of habeas corpus on a claim that was adjudicated on the merits in a state proceeding unless the adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In this case, Childers does not contend that the District Court of Appeal’s decision was based on an unreasonable determination of the facts underpinning its ruling; hence, our only concern is whether the decision was “contrary to ... clearly established Federal law, as determined by the Supreme Court.”11 Id.

The phrase “clearly established Federal law, as determined by the Supreme Court of the United States,” id., “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, 529 U.S. at 412, 120 S.Ct. at 1523. Williams stemmed from the Court’s decision in Teague, which held that the *803Court would not recognize a new rule of constitutional law on collateral review. Teague, 489 U.S. at 310, 109 S.Ct. at 1075. The necessary implication of Teague is that habeas petitioners would henceforth need a clearly established Supreme Court holding on which to base their challenges to state court rulings.

Furthermore, habeas practice, whether before or after AEDPA, has demanded that the federal courts afford a presumption of correctness to the facts the state court found in reaching its decision. 28 U.S.C. § 2254(e)(1) (2006) (post-AEDPA statute); 28 U.S.C. § 2254(d) (1994) (preAEDPA statute); Blankenship v. Hall, 542 F.3d 1253, 1271-72 (11th Cir.2008). Here, as discussed in part I.B., supra, the District Court of Appeal made findings of fact regarding the probative value versus the prejudicial effect of the evidence at issue, and struck the balance in favor of excluding the evidence. We must defer to those findings and presume that the District Court of Appeal correctly found that the probative value of the evidence was outweighed by its likely prejudicial effect.

The question then becomes what Supreme Court precedent was clearly established when the District Court of Appeal upheld the trial court’s exclusion of Childers’s evidence. This court cites the only ease of which I am aware that squarely addresses the extent to which a trial court may, without running afoul of the Confrontation Clause, limit the scope of a defendant’s cross-examination: Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). After stating that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination,” id. at 678, 106 S.Ct. at 1435 (internal quotation omitted), the Van Arsdall Court said this about a rule akin to the one the District Court of Appeal invoked here:

It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. And as we observed earlier this Term, “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original).

Id. at 679, 106 S.Ct. at 1435 (first two emphases added).

Here, the District Court of Appeal relied on the clearly established rule of evidence the Supreme Court approved in Van Arsdall.12 The language of Federal Rule of Evidence 403 (“Federal 403”) that Van Arsdall summarized — “prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant” — is of the same effect *804as the nearly identical language of Florida 403. The Seventh Circuit, in a § 2254 case, equated the Van Arsdall language I underscored above with that of Federal 403 and a similar Wisconsin evidentiary rule in deciding whether a Wisconsin murder conviction should be set aside on the ground that the petitioner was denied the constitutional right to confrontation in cross-examining a witness. The court said this:

Applicable precedents, particularly Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), say that the defendant is entitled to cross-examine a witness about potential sources of bias, but that the trial judge may place limits on the examination to prevent what the rules of evidence call “the danger of unfair prejudice, confusion of the issues, or misleading the jury”. Fed.R.Evid. 403.

Lindh v. Murphy, 124 F.3d 899, 901 (7th Cir.1997).

In light of Van Arsdall’s language and the Seventh Circuit’s expression in Lindh, it is clear that the Confrontation Clause in the cross-examination context does not preclude the operation of Florida 403 as written or the Florida practice of committing Florida 403 rulings to the trial judge’s discretion. The same is true with respect to Federal 403. In other words, there is nothing about the Rule or its application through the exercise of trial court discretion that offends the constitutional right of confrontation.

A trial court abuses its discretion in admitting or excluding evidence if it bases its ruling on facts that are clearly erroneous or on an incorrect view of the law.13 If an appellate court reverses a conviction because the trial court abused its discretion in admitting or excluding evidence on cross-examination or via another witness, the reversal is due to the trial court’s reliance on clearly erroneous facts or the misapplication of the governing rule of law, not on a violation of the defendant’s right of confrontation. Thus, if the trial court’s exclusion of evidence in such context does not constitute an abuse of discretion, I submit that the Confrontation Clause does not come into play. That is, I am unaware of any federal court of appeals holding that the exclusion of relevant, probative evidence on cross-examination, although not an abuse of discretion under Federal 403, nonetheless constituted a violation of the Confrontation Clause. In the cross-examination context, for a court to find no abuse of discretion in the application of Federal 403 but in the same breath find a Confrontation Clause violation, the court would have to say that the Confrontation Clause had rendered inoperative one or more of the Federal 403 criteria on the “danger” side of the scale.

In summary, the District Court of Appeal decided Childers’s claim after independently finding the facts material to a Florida 403 ruling. That resolution was entirely consistent with the law the Supreme Court had clearly established in Van Arsdall, permitting trial judges to exercise discretion to limit the scope of *805cross-examination. Because the state court did not decide Childers’s claim in a manner contrary to clearly established federal law, Childers’s Confrontation Clause claim fails.

E.

Let’s suppose, however, that we should review the District Court of Appeal’s decision as if we were reviewing Childers’s conviction as a federal conviction on direct appeal. That is, instead of determining whether the decision was contrary to clearly established federal law, in force at the time, we determine whether the decision is contrary to our interpretation of the Confrontation Clause at this very moment.14 What we would have before us, then, is a Federal 403 ruling, like the one the District Court of Appeal issued, excluding the two pieces of evidence at issue here. I start with the Notice of Revocation — with Childers’s argument that he should have been able to refer to it in cross-examining Junior.15

The Notice was signed by the State Attorney and an Assistant State Attorney. They had apparently been involved in the case from the outset. The Notice they signed stated that “Mr. Junior’s prior statements, deposition testimony and trial testimony are contrary to his January 17, 2003 and/or January 31, 2003 statements indicating he has provided incomplete and/or untruthful answers on previous occasions.” Junior gave these January statements to Cotton. The Notice therefore constituted the opinion of two of the State’s prosecutors that Junior, in light of what he told Cotton, had testified untruthfully on previous occasions.

The prosecutors’ opinions would not be admissible unless they took the witness stand. Under Federal Rule of Evidence 608(a) they could do that, see United States v. Lollar, 606 F.2d 587, 588-89 (5th Cir.1979),16 provided a sufficient foundation was established. United States v. Dotson, 799 F.2d 189, 192 (5th Cir.1986). Childers apparently eschewed that approach, deciding instead to get the opinion before the jury in cross-examining Junior. On cross-examination, he would try to get Junior to say that he agreed with the prosecutors’ assessment of his truthfulness. Childers’s problem was that the State would get before the jury the fact that the trial judge had rejected the State Attorney’s Notice. Childers did not want to run this risk, so the court barred him from asking Junior about the Notice.

On direct appeal, we would find no abuse of discretion in the trial court’s handling of the matter. In balancing the probative value of the Notice and the trial judge’s order against the danger of unfair prejudice, we might place the same factors on the “probative value” and “danger” sides of the scale as the District Court of Appeal did. As it opined, the probative value (of the Notice and the trial court’s order) would be this:

*806the evidence in question ... had little probative value ... as its admission would have resulted in the jury hearing that the trial court had found Junior to be in compliance with his agreement to testify “truthfully.” This, no doubt, explains why [Childers] attempted to exclude the trial court’s ruling.

Childers, 936 So.2d at 594.

In addition, in performing this balancing, the trial court would have to consider the following. If the Notice of Revocation were introduced, and the jury learned that the State Attorney’s Office thought that Junior’s previous statements under oath were untruthful, Childers might be able to persuade the jury in closing argument that the State, in putting Junior on the stand, had suborned perjury. To counter this possibility, the State Attorney and his assistant would have had to testify. Or, it may be that the trial judge would have been asked to testify, to assure the jury that Junior had been truthful. This scenario’s potential for unfair prejudice, confusion of the issues, or misleading the jury would weigh heavily in the court’s decision to preclude Childers’s use of the Notice in cross-examining Junior — let alone the delay that would ensue if, in examining the prosecutors or the trial judge, the lawyers delved into the eight occasions that Junior had been examined under oath prior to the first Elliott trial. In sum, even if we were reviewing Childers’s convictions as federal convictions on direct appeal, we would find no abuse of discretion in the trial court’s handling of the Notice issue.

I turn now to the Joseph Elliott acquittal. Childers claimed that the acquittal had a bearing on Junior’s state of mind; he had to change his testimony to avoid the possibility that the State would revoke the sentencing recommendation it made in the plea agreement. In other words, Junior realized that his testimony at Joseph Elliott’s trial failed to persuade the jury to convict; he had to embellish it.

The District Court of Appeal affirmed the exclusion of the Joseph Elliott verdict because “[v]erdicts from other cases are generally inadmissible.” Childers, 936 So.2d at 596. The court cited a Third District Court of Appeal decision, Secada v. Weinstein, 563 So.2d 172, 173-74 (Fla.3d Dist.Ct.App.1990). Childers, 936 So.2d at 596. The introduction of a prior verdict into evidence “has the inevitable tendency of causing the jury in the present case to defer to [the] decision!] made in [the] previous one and thus to delegate the uniquely wow-delegable duty of reaching its own independent conclusions.” Secada, 563 So.2d at 173. In other words, learning that the jury had acquitted Joseph Elliott in his case on essentially the same evidence presented in Childers’s case might tempt Childers’s jury to acquit Childers. Another problem with admitting the Joseph Elliott verdict is that it is unclear whether it represents a determination that (1) there was a reasonable doubt as to whether Joseph Elliott committed any of the crimes charged; (2) he committed none of the crimes charged; or (3) he was guilty of one or more of the crimes, but jury nullification occurred. Although the verdict may have been relevant to Junior’s state of mind when he visited Cotton at the State Attorney’s Office on January 17 and 31, 2003, and thus admissible to that extent, the inappropriate effect the verdict could have had on the jury would have justified the trial court’s discretionary exclusion of the evidence under Federal 403 on balance.

In sum, in the direct appeal of Childers’s federal court conviction, I would hold that the trial court’s evidentiary rulings at issue did not constitute an abuse of discretion. Implicit in that holding would be a holding that a denial of cross-examination in viola*807tion of the Confrontation Clause could not have occurred. And if, on direct appeal, we would not disturb the trial court’s rulings, how is it that we should disturb the District Court of Appeal’s rulings given the limitation AEDPA places on our review?

II.

In this part, I first address, in subpart A, the approach this court takes in determining whether Childers made out a Confrontation Clause claim. I conclude that it is not in keeping with the approach mandated by AEDPA. Next, in subpart B, I point out the negative effects today’s decision will have, in this circuit, on the state courts’ adjudication of a claim like the one presented here and on this court’s adjudication of such a claim.

A.

Under AEDPA, where the facts underlying the petitioner’s constitutional claim are fully litigated in the state courts and the district court does not hold an evidentiary hearing, our appellate review of the district court’s decision granting or denying habeas relief is, actually, a review of the highest state court’s adjudication of the claim. In the case at hand, the district court did not hold an evidentiary hearing. Our review, therefore, should be of the District Court of Appeal’s decision adjudieating Childers’s claim that the trial court erred in excluding the two pieces of evidence I have been discussing. That the district court failed to explicitly determine whether the District Court of Appeal’s adjudication of Childers’s claim was contrary to clearly established federal law does not alter our task: we are to determine whether the District Court of Appeal’s decision was contrary to clearly established federal law. This the court has not done; it makes no attempt to resolve the constitutional issue cited in the certificate of appealability by relying on a Supreme Court rule clearly established and in effect at the time the District Court of Appeal acted, as Teague and Williams require.

The court states that we are reviewing the district court’s decision denying habeas relief. This is true as a matter of form, but not of substance.17 The court also states that we are reviewing the state court’s decision de novo. Maj. Op. at 789. It is not entirely clear to me whether the court is reviewing the state trial court’s rulings or those of the District Court of Appeal. Properly, we should be reviewing the District Court of Appeal’s decision. And AEDPA requires that we accord that court’s findings the presumption of correctness, meaning that we do not review the findings de novo.18 Lastly, there is no indication in the majority opinion that the court determined explicitly whether the *808District Court of Appeal’s adjudication was contrary to clearly established federal law extant at the time of that adjudication, again as Teague and Williams require.

B.

Equally troubling to me is the effect the court’s decision will have in this circuit on the state courts’ adjudications of a claim like the one presented here and on this court’s adjudication of such a claim on the direct appeal of a criminal conviction. The court’s approach works mischief by effectively instructing the state courts that they must explicitly address the federal claim, or else have a federal court issue a writ of habeas on the basis of law not in existence when the state court acted. This is wrong for several reasons. First, it flies in the face of Williams’s mandate that “clearly established Federal law” refers only to Supreme Court holdings in effect at “the time of the relevant state-court decision.” 529 U.S. at 412, 120 S.Ct. at 1523. Second, and more importantly, it undermines the goals of comity and deference to state court decision making that Congress had in mind when it enacted AEDPA. See Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 1490, 146 L.Ed.2d 435 (2000); Newland v. Hall, 527 F.3d 1162, 1183 (11th Cir.2008). The court’s argument, essentially, is that Childers’s Confrontation Clause claim went undecided by the District Court of Appeal; it is still outstanding, and the federal courts must decide it afresh on collateral review. But that is not what the District Court of Appeal did. Instead, as I have explained, it invoked state evidentiary rules, the application of which subsumed Childers’s Confrontation Clause argument. The District Court of Appeal would have reversed Childers’s conviction had it found that the trial court abused its discretion in excluding Childers’s two pieces of evidence under Florida 403, not because the court violated the Confrontation Clause. It found no such abuse of discretion; indeed, it found as a factual matter that the trial court correctly decided that Childers’s evidence was more prejudicial than probative. AEDPA requires that we defer to this state court decision, supported as it was by the facts, but this court does not afford such deference.

Instead, faced with what it erroneously thinks is an undecided federal claim, the court improperly proceeds to review de novo the District Court of Appeal’s decision. Maj. Op. at 789; see Cone v. Bell, — U.S. -, 129 S.Ct. 1769, 1784, 173 L.Ed.2d 701 (2009). Instead, this case calls for the straightforward application of § 2254(d). Here, no Supreme Court precedent would have informed the District Court of Appeal that it would be denying Childers’s constitutional right of confrontation if it weighed the probative value of the Notice of Revocation and the Elliott acquittal against the danger of undue prejudice to the State, distracting the jury during their deliberations, and improperly influencing the jury’s evaluation of Junior’s veracity and then, in the exercise of its discretion, held the evidence inadmissible. Van Arsdall was the only applicable Supreme Court precedent for the District Court of Appeal to follow, and nothing suggests that the District Court of Appeal’s decision was contrary to it.

III.

For the foregoing reasons, I dissent.

. The indictments were returned to the Escambia County Circuit Court. Escambia County and Okaloosa County are part of the First Judicial Circuit of Florida. According to the case docket sheets, on motion for change of venue, the Elliotts' cases were transferred to and tried in Okaloosa County.

. If the State Attorney revoked the agreement, Junior’s nolo contendere pleas would remain undisturbed.

. On March 28, 2003, the State filed two more motions in limine not relevant here.

. I have difficulty understanding what Childers's counsel meant. Perhaps he meant that Junior's prior statements — which implicated Childers and Elliott (and himself) in a kickback plot — were inconsistent with the juiy’s verdict of acquittal. In acquitting Elliott, the jury was effectively rejecting as not credible Junior's prior statements.

. The court said nothing about Childers's Confrontation Clause argument.

. As noted, in filing his motion in limine, Childers assumed that the Confrontation Clause and Florida law gave him the right to cross-examine Junior about the Notice of Revocation. Toward the end of the March 31 hearing, he made the constitutional basis of his assumption clear to the court.

. Childers argued that in Florida, "a defendant in a criminal case has considerable latitude in cross-examination to elicit testimony showing the bias of prosecution witnesses,” Shaw v. State, 831 So.2d 772, 774 (Fla. 4th Dist.Ct.App.2002) (citing Fla. Stat. § 90.608 ("Any party ... may attack the credibility of a witness by ... [s]howing that the witness is biased.”)); that Florida’s "evidence code liberally permits the introduction of evidence to show the bias or motive of a witness,” Gibson v. State, 661 So.2d 288, 291 (Fla.1995); and that " 'Section 90.608(2), Florida Statutes, as well as the Sixth Amendment to the United States Constitution, guarantee a defendant "the right to a full and fair opportunity to cross-examine prosecution witnesses in order to show their bias or motive to be untruthful,” ’ ” Shaw, 831 So.2d at 774 (quoting Barows v. State, 805 So.2d 120, 122 (Fla. 4th Dist.Ct.App.2002)).

. Fed.R.Evid. 403, "Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time,” states: “Although relevant, evidence may be excluded if its proba*800live value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The criteria for excluding evidence under Fla. Stat. § 90.403 and the federal rule are substantially the same, except that the latter also permits the exclusion of evidence if the probative value is outweighed by "undue delay [or] waste of time.”

. As indicated in the text supra, the trial court, after ruling that if Childers cross-examined Junior about the Notice of Revocation, the State could introduce the court’s rejection of the Notice (a proposition Childers would not accept), held that both the Notice of Revocation and the court’s rejection of the Notice were irrelevant. The District Court of Appeal disagreed; both pieces of evidence were relevant. The court affirmed the trial court's ruling on another ground, an application of § 90.403, which it was permitted to do under state law. Home Depot U.S.A. Co. v. Taylor, 676 So.2d 479, 480 (Fla. 5th Dist.Ct.App.1996).

. As this language of the court’s opinion and the language that follows this footnote indicate, the court read Childers’s Notice of Revocation argument this way: Childers had a right to cross-examine Junior about the Notice and at the same time prevent the State *801from bringing out the fact that the court had rejected the Notice on the ground that Junior had complied with the terms of the plea agreement.

. "A stale-court decision will ... be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases.” Williams, 529 U.S. at 405, 120 S.Ct. at 1519. This can occur in two ways:

First, a state-court decision is contrary to [the Supreme] Court’s precedent if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law. Second, a state-court decision is also contrary to [the Supreme] Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].

Id. Childers does not contend that this case involves the second way.

. The fact that the District Court of Appeal did not cite Van Arsdall does not change the analysis. Compliance with the "contrary to” language of AEDPA "does not require citation of [the Supreme Court’s] cases — indeed, it does not even require awareness of [those] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (per curiam).

. "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” McGregor v. Bd. of Comm'rs of Palm Beach County, 956 F.2d 1017, 1022 (11th Cir.1992) (quoting Cooler & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990)). This is the traditional statement of the abuse of discretion standard. I know of no case law, and can conceive of none, stating that the standard is different when applied to an evidentiary ruling at trial. See, e.g., United States v. Duran, 596 F.3d 1283, 1296 (11th Cir.2010) ("We review evidentiary rulings for an abuse of discretion.”).

. This is, I submit, the approach the court has taken today in granting Childers habeas relief.

. Childers's counsel would not have agreed with the trial court that if they cross-examined Junior with the Notice, the State could introduce the court's rejection of the Notice. In my view, it would have been suicide for the jury to learn that the judge presiding over the trial had declared, in refusing to enforce the Notice, that Junior had substantially complied with the plea agreement, meaning that he had been truthful.

. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

. For example, the court states that we are reviewing the district court’s findings of fact for clear error. Maj. Op. at 788-89. The district court made no findings of fact because it did not hold an evidentiary hearing. The district court’s task, like ours here, was to look to the facts found by the District Court of Appeal. Those facts are entitled to a presumption of correctness. The district court did not do that; nor does this court here.

. The majority opinion pays lip service to the presumption of correctness owed state court's findings of fact, Maj. Op. at 789 n.5, but it fails to discuss the facts the District Court of Appeal actually found, as I recounted in part I.B. Even after attempting to address this point by positing that "the Florida District Court of Appeal analyzed the admissibility of the Notice and the verdict only under the Florida rules of evidence, which are not coterminous with the Confrontation Clause,” Maj. Op. at 789-90 n.6, the court still engages in virtually no analysis of the factfinding performed by the District Court of Appeal. I submit that were it to do so, it would reach this ineluctable conclusion: the District Court of Appeal's finding that the prejudicial effect of the Notice outweighed its probative value was not contrary to clearly established federal *808law as stated in Van Arsdall. Consequently, Childers's Confrontation Clause rights suffered no violation.