dissenting.
The key issue in this case is whether the state trial court was justified in admitting Quan Shelton’s testimony from a preliminary hearing and a suppression hearing because he was unavailable to testify at the January 8, 2001 trial. The answer turns on whether the prosecutor (Bret Gunn) carried his burden of demonstrating that he made reasonable, or “good faith,” efforts to obtain Shelton’s presence at the January 2001 trial. Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (“[A] witness is not ‘unavailable’ for purposes of the ... exception to the confrontation requirement unless the pros-ecutorial authorities have made a good-faith effort to obtain his presence at trial.”).
Although the majority opinion correctly applies the de novo standard of review to the state court’s determinations of unavailability and reasonableness, it concludes that the prosecutor met his burden, notwithstanding the fact that he submitted no evidence in support of his motion to declare Shelton unavailable. Because the majority’s decision effectively eradicates the burden of proof that the Supreme Court established, I respectfully dissent.
I. THE REASONABLENESS OF GUNN’S EFFORTS
The reasonableness of a prosecutor’s efforts to procure a witness is context-dependent. As the United States Supreme Court put it, “[I]f no possibility of procuring the witness exists (as, for example, the witness’ intervening death), ‘good faith’ demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.” Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). See also McCandless v. Vaughn, 172 F.3d 255, 266 (3d Cir.1999) (“Reasonableness ... must be evaluated with a sensitivity to the surrounding circumstances and the defendant’s interest in confronting the absent witness.”); Cook v. McKune, 323 F.3d 825, 835 (10th Cir.2003) (“[Evaluation of reasonableness or good-faith effort ‘requires us to consider all the circumstances rather than to apply a per se rule.’ ” (quoting Martinez v. Sullivan, 881 F.2d 921, 924 n. 1 (10th Cir.1989))). Likewise, when a witness is key to the prosecution’s case, more is demanded of the prosecution than in cases involving the unavailability of a relatively unimportant witness. United States v. Quinn, 901 F.2d *863522, 529 (6th Cir.1990) (citing United States v. Lynch, 499 F.2d 1011, 1022 (D.C.Cir.1974)). Cf. Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.1989) (“Where the trial court has curtailed a defendant’s cross-examination of a ‘star’ government witness ... its ruling must be more carefully scrutinized.”).
The majority opinion recognizes that context is key to this inquiry, but avoids confronting inconvenient facts that are crucial to the context in which Bret Gunn, the prosecutor, acted.
To determine whether the prosecution’s efforts to procure Shelton’s presence at Hamilton’s trial were reasonable, we must consider the circumstances surrounding Shelton’s absence. First, it is vital to note that Shelton was the prosecution’s key witness for its aggravated robbery charge— Shelton was the victim of the robbery, as well as the only witness who indicated that Hamilton pointed a gun at him. This contextual fact mandates requiring much from the prosecution before concluding that Shelton was, in fact, unavailable.
Next, we must consider the facts indicating why Shelton failed to appear at the January 2001 trial. Around December 1999, the prosecution learned that Shelton, who had since joined the military, was stationed in Germany. J.A. at 376 (State’s Jan. 7, 2000 Mot. to Declare Witness Unavailable ¶ 1). When Gunn contacted Shelton’s commanding officer prior to the January 2000 trial date, Gunn learned that Shelton had been absent without leave several times, and was considered a flight risk. Id. ¶ 2; J.A. at 438 (Letter erroneously dated Jan. 6, 1999 from Capt. Watson). For this reason, Shelton’s commanding officer did not permit him to testify in Nashville in January 2000. Gunn moved the court to declare Shelton unavailable for the January 2000 trial, and to permit the prosecution to read into the trial record Shelton’s prior testimony from the preliminary hearing and suppression hearing. J.A. at 376 (State’s Jan. 7, 2000 Mot. to Declare Witness Unavailable ¶ 2). Gunn attached correspondence with Shelton’s commanding officer as evidence to support the motion, which the trial court granted. See J.A. at 48-49 (Tenn.Ct.Crim. App.Op.). Ultimately, however, the trial court continued the trial date until May 22, 2000. J.A. at 379 (State’s Apr. 19, 2000 Mot. to Declare Witness Unavailable ¶ 3).
Gunn again contacted Shelton’s commanding officer, and again learned that Shelton would be unavailable to testify at trial in May 2000, this time because Shelton would be deployed to Kosovo until the fall of 2000. Id. ¶ 4. Again, Gunn moved the court to declare Shelton unavailable, and again Gunn attached as evidence his correspondence with Shelton’s commanding officer. J.A. at 381 (Letter dated Apr. 13, 2000 from Capt. Watson to B. Gunn). The court granted the motion, J.A. at 383 (St.Crim. Ct. Order dated May 11, 2000), but later continued the trial date until January 8, 2001. J.A. at 385 (State’s Jan. 2, 2001 Mot. to Declare Witness Unavailable ¶ 5).
Gunn was aware that Shelton was due to return to Germany in October 2000 and that Gunn would have several months between Shelton’s return and the trial to procure Shelton’s attendance. In September 2000, Gunn received word from Shelton’s commanding officer that Shelton’s discipline' problems had vanished, and that Shelton “was being considered for some type of commendation.” J.A. at 433-34 (Gunn’s Response to Interrogatory No. 9). Yet Gunn had only one conversation with either Shelton or his commanding officer between Shelton’s return from Kosovo and Christmas. J.A. at 430 (Gunn’s Response to Interrogatory No. 5). During this conversation, Gunn learned that Shelton was *864neither willing, nor permitted by his commanding officer, to travel to Nashville. J.A. at 434 (Gunn’s Response to Interrogatory No. 9). Nonetheless, Gunn contacted Shelton again on January 2, 2001 — -just six days before trial — and then learned that Shelton was allowed to travel and willing to do so if he could travel through Atlanta.1 Id. According to Gunn, he spoke with Shelton’s commanding officer, who said it was too late to arrange for military travel through Atlanta. Id. The record reveals no inquiry into whether commercial flights were available.2
Given the importance of Shelton’s testimony to the State’s case, as well as the importance of Hamilton’s Sixth Amendment right to confront adverse witnesses at trial, it is difficult to see how these efforts could be considered reasonable. We previously have characterized more zealous efforts as “singularly unenthusiastic.” Quinn, 901 F.2d at 528. In Quinn, the government’s attempts included two visits to an apartment, conversations with multiple people, and a drive-by and a visit to another house. Id. Crucial to our determination in Quinn that the prosecution’s efforts did not amount to good faith were (1) the short time between the beginning of efforts to procure the witness’s attendance and the trial date and (2) the lack of follow-up with the people contacted. Id. Similarly, Gunn’s attempts to procure Shelton’s attendance did not begin in earnest until just six days before trial, and Gunn failed to follow up by looking into the availability of commercially available flights. If the government’s efforts over the course of a week to locate the witnesses in Quinn were unenthusiastic, the two phone calls that Gunn made to Shelton over the course of two months were downright apathetic.
The majority brushes away these concerns, pointing to four putative reasons for concluding that Gunn’s efforts were reasonable. First, the majority opinion claims that Hamilton has not identified a previously established means of procuring Shelton. Maj. Op. at 860. This claim is dubious, as it is directly undercut by two inconvenient facts: (1) Gunn bothered to contact the military to inquire into Shelton’s availability and (2) Shelton’s commanding officer indicated that Shelton would not be 'permitted to travel to Tennessee to testify because of his prior AWOL status. These facts cut strongly against the majority opinion’s assertion that there were “no means of communication and voluntary cooperation” sufficient to procure an enlisted soldier serving overseas for testimony at trial. Were the majority correct, either (1) Gunn would have *865been unable to initiate such contact or (2) the commanding officer’s reply would have been a terse, “We don’t allow that— ever.”3
The majority distinguishes Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), on the basis that in this case, the State lacked a statutory basis to compel Shelton’s presence at trial. In so doing, the majority opinion conflates the “established procedures” mentioned in Mancusi v. Stubbs, 408 U.S. 204, 212, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), with statutory procedures. However, the Supreme Court has-rejected the argument that “because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make such a request.” Barber, 390 U.S. at 724, 88 S.Ct. 1318. Further, no case holds that procedures are not “established” for purposes of this analysis unless they are embodied in a statute. I can see no reason that the absence of a statutory procedure to compel Shelton’s presence at trial should relieve the prosecution of its duty to make a good-faith effort to bring Shelton to the trial in Nashville. As noted above, apparently Gunn also understood his duties to be more robust. Otherwise, why would he even have tried to contact Shelton after Shelton had gone overseas with the military?
Next, the majority claims that the prosecution “worked diligently to produce Shelton, right up until the time of trial.” Maj. Op. at 860. The only effort supporting the asserted diligence is a phone call to Germany within a week of the trial date. As noted above, the record does not indicate that the prosecution explored the availability of commercial flights, and the extent of follow-up with Shelton or his commanding officer is unclear at best.4 I cannot accept the notion that an isolated phone call within a week of trial constitutes diligence.
Third, the majority opinion asserts that “the State continued to attempt to reach Shelton throughout the week leading up to Hamilton’s trial but was unable to speak with him before the trial date.” Maj. Op. at 860. As indicated previously, I am unable to find credible support for this assertion in the record. See supra note 4.
Finally, the majority opinion points to the prosecution’s efforts to procure Shelton’s attendance at the January 2000 and May 2000 trial dates as evidence of reasonable efforts to bring Shelton to the January 2001 trial. Maj. Op. at 860. The majority misconstrues the issue. At issue in this case is the reasonableness of the prosecution’s efforts to obtain Shelton’s presence at the January 2001 trial. While the prosecution’s efforts anent the earlier trial dates are part of the context in which we determine the prosecution’s good faith, *866they cannot, in and of themselves, establish that the prosecution’s lackluster efforts to get Shelton to testify at the January 2001 trial were reasonable.
Accordingly, none of the majority opinion’s proffered reasons support its conclusion that Gunn’s efforts to protect Hamilton’s right to cross-examine Shelton were reasonable.
II. HABEAS STANDARD
Of course, erroneously concluding that the prosecution’s efforts were reasonable is of no consequence unless the state court’s decision was contrary to clearly established Supreme Court precedent or an unreasonable application of such precedent to the case at bar. See 28 U.S.C. § 2254(d)(1). In this case, the Tennessee Court of Criminal Appeals (TCCA)’s analysis was both contrary to, and an unreasonable application of, clearly established Supreme Court precedent.
When the TCCA considered this case, the controlling precedent was Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980),5 which clearly requires that “the prosecution bears the burden of establishing” that a witness is unavailable. Id. at 75, 100 S.Ct. 2531. The TCCA does not clearly recognize that it is the prosecution that has the burden of persuasion with regard to unavailability. The closest the state court comes is its statement that “Proof of the witness’s unavailability must consist of more than the prosecutor’s own statements to the court.” J.A. at 50 (Tenn. Ct.Crim.App. Op. at 4). In any event, it is clear that the TCCA failed to apply the Roberts standard.
As the majority opinion twice acknowledges, see Maj. Op. at 857, 861, the prosecution provided no evidence — no phone records, no letter correspondence, not even an affidavit — supporting its motion to declare Shelton unavailable to testify at the January 8, 2001 trial.6 This, too, is a fact that the TCCA recognized. J.A. at 50 (TCCA Op. at 4). But the TCCA affirmed the trial court’s decision to grant the State’s motion anyway, and thus failed to place the burden of proof on the prosecution, as Roberts requires. By failing to place the burden of proving Shelton’s unavailability on the State, the TCCA applied a standard that is contrary to clearly established Supreme Court precedent.
The TCCA, as well as the majority opinion, attempts to paper over this problem by pointing to the evidence that the State supplied in support of its earlier motions to *867declare Shelton unavailable to testify. To the extent that the TCCA relied on the evidence that the State had submitted in support of its motions to declare Shelton unavailable for the January 2000 and May 2000 trial dates, this is an objectively unreasonable application of Roberts.
The unreasonableness of this analysis becomes clear once we consider what the previously proffered evidence actually demonstrates. The January 2000 evidence demonstrates that in January 2000, Shelton’s disciplinary record led the military to conclude that he was a flight risk, and that the military would not let him travel at that time because he was considered a flight risk. Likewise, the evidence in support of declaring Shelton unavailable for the May 2000 trial shows that Shelton would be deployed in Kosovo from April through October 2000. None of this previously proffered evidence demonstrates in any way that Shelton would be unavailable to testify in January 2001. Indeed, neither of the reasons for the military’s previous refusals applied in January 2001, as Shelton had returned from deployment to Kosovo and was no longer considered a flight risk. The evidence attached to the previous motions may indicate that bringing Shelton to Nashville to testify would be difficult, but difficulty is hardly tantamount to unavailability. By relying on evidence that bears infinitesimal, if any, relevance to whether Shelton was available to testify in January 2001, the TCCA unreasonably applied Roberts’s burden-of-proof standard.
The majority opinion bends over backwards to accommodate the TCCA’s decision to ignore Roberts’s burden-of-proof requirement, claiming that “[i]t was up to the Tennessee courts to determine the type of proof or statements required to carry the State’s burden of proof under the criteria from Ohio v. Roberts.” Maj. Op. at 861, n. 3. Not so. The majority cites no authority for this bewildering proposition of law, and for good reason: the majority’s position completely eradicates the Roberts standard. According to the majority, state courts are free to undercut a burden-of-proof requirement established by the Supreme Court by allowing a prosecutor to' sustain his burden with no evidence. Similarly, according to the majority, the state is free to conclude that a constitutionally required burden of proof is met when the government references, but does not include, evidence that is plainly irrelevant to the issue in question. The majority’s unprecedented deference to the state courts effectively erases the burden-of-proof requirement from Roberts, and with it, the Supremacy Clause from the text of the Constitution. This I cannot countenance.
III. HARMLESS ERROR
Finally, I believe these errors were not harmless, and accordingly, we should reverse the district court’s judgment. “On collateral review, an error is deemed harmless unless it ‘had a substantial and injurious effect or influence in determining the jury’s verdict.’ ” Stapleton v. Wolfe, 288 F.3d 868, 867 (6th Cir.2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). If the court is uncertain, but has “ ‘grave doubt’ as to the harmlessness of the error, it ‘should treat the error, not as if it were harmless, but as if it affected the verdict....” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).
Additionally, when evaluating the harmlessness of admitting prior testimony in violation of the Sixth Amendment, courts consider whether admitting the testimony had a substantial and injurious effect or influence on the jury, not whether the lack *868of cross-examination had such an effect. As we have previously indicated, “the proper standard by which to gauge the injurious impact of the admission of constitutionally infirm evidence is to consider the evidence before the jury absent the constitutionally infirm evidence.” Brumley, 269 F.3d at 646 (emphasis added) (citing Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir.1999); Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir.1993)).
In Tennessee, aggravated robbery is a robbery “[accomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Tenn. Code ANN. § 39-13^402(a)(l). As noted previously, Shelton was the key witness in the aggravated robbery case — indeed he was the victim of the alleged robbery — and the only witness who testified that Hamilton pointed a gun at him. Without Shelton’s prior testimony, the prosecution’s case would have been extremely weak, consisting solely of testimony from Mario Woodard, who was unable to remember the details of the alleged robbery without leading questions:
Q: Can you describe the person that he [Hamilton] robbed?
A: No.
Q: Well, was it a man or a woman?
A: I guess a man.
Q: Well, I mean, were you there?
A: I wasn’t there, but I seen — I seen like the end of it.
[...]
Q: All right, and what was the first thing that you saw take place between the victim and Quinn?
A: I didn’t see nothing.
J.A. at 201-02 (Trial Tr. at 116-17).
Although Woodard eventually recalled some aspects of the transaction after notable prompting from the prosecutor,7 he never testified that he saw Hamilton point a gun at Shelton, an element of aggravated robbery. The closest he came was his testimony that he saw “Quinn [Hamilton] run towards the other way with a gun in his hand,” apparently after the alleged robbery. J.A. at 201 (Trial Tr. at 116). However, even this testimony is vague, as Woodard provided no indication of either the distance or the time elapsed between the alleged robbery and his perception of Hamilton’s holding a gun. Due to these omissions, we have no idea when Woodard claimed to have seen the gun. Additionally, the trial transcript is peppered with indications that Woodard had a criminal past that included felonious possession of a weapon, J.A. at 206 (Trial Tr. at 121), and that Woodard had a powerful motive to testify against Hamilton while downplaying his own role in the robbery, J.A. at 205 (Trial Tr. at 120), 207-08 (Trial Tr. at 122-23).
The trial record without Shelton’s testimony is hardly the stuff of which an open- and-shut case of aggravated robbery is made. Perhaps a reasonable jury could have convicted Hamilton because Woodard testified that he saw Hamilton run away from Shelton while carrying a gun. Nonetheless, it is difficult to see how the admission of prior testimony from the victim, and sole witness who offered direct evidence of an element of aggravated robbery, could not have had a substantial and injurious effect or influence upon the jury’s verdict. Because, under harmless error analysis, we consider whether the errantly admitted evidence had such an *869influence (and not whether a reasonable jury could have voted to convict), I cannot see how this error could be harmless.
IV. CONCLUSION
Because the state courts did not follow clearly established Supreme Court precedent and because the error almost certainly influenced the jury’s verdict, the district court should have granted Hamilton’s petition for a writ of habeas corpus. I respectfully dissent.
. That Gunn bothered to call Shelton back after purportedly receiving a categorical "no” from both Shelton and Shelton’s commanding officer indicates that the pre-Christmas rejection likely was not as categorical as the State now claims.
. I find it deeply troubling that in the State’s Third Motion to Declare Shelton Unavailable, filed on January 2, 2001, the State omitted the distinction between military flights and commercial flights. Rather than specify that Shelton’s commanding officer noted that it was too late to arrange for a military flight through Atlanta, the State’s motion says that Shelton’s "commander stated that ... it was too late for any flights through Atlanta.” J.A. at 386 (emphasis added). Not until he responded to interrogatories in this habeas proceeding did Gunn clarify that "Mr. Shelton’s commanding officer ... [said] that there were no military flights that could accommodate a passenger to Atlanta from Germany in the short time remaining before trial.” J.A. at 434 (Gunn’s Response to Interrogatory No. 9) (emphasis added). Gunn’s failure to draw this distinction in his third motion and his failure to clarify the issue in addressing the state court strongly suggests that his efforts were less than reasonable, and that is the issue that we must decide today.
. Further, Captain Watson's January 6, 2000 letter explicitly states that an established means of communication and voluntary cooperation existed when it notes that the American Red Cross contacted her "in reference to a subpoena from the State of Tennessee for Private Shelton to appear in court as a witness.” J.A. at 438.
. In his response to interrogatories, Gunn indicated that he "continued to try and reach Mr. Shelton’s commanding officer through the rest of the week [of January 2, 2001] but ... was unable to talk with him again before the trial on Monday, January 8, 2001.” J.A. at 434 (Gunn's Response to Interrogatory No. 9). For some reason, Gunn did not mention these efforts during the January 5, 2001 pretrial hearing, at which the trial court granted the State’s motion to declare Shelton unavailable. J.A. at 417-25 (Pretrial Hr'g Tr.). Perhaps the efforts referred to in the interrogatory response ■ occurred during the weekend between Friday, January 5 and Monday, January 8. It is unclear why this would be the case, though, as the court had already declared Shelton unavailable on January 5.
. Although the Supreme Court subsequently overruled Roberts in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we apply Roberts because Crawford post-dates the TCCA’s opinion. See Brumley v. Wingard, 269 F.3d 629, 638 (6th Cir.2001) (“In reviewing a state court decision under [§ 2254], we look only to the Supreme Court holdings that existed at the time of the state court’s decision.” (citing Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000))).
. The majority opinion, while acknowledging this lack of evidence, cites United States v. Sindona, 636 F.2d 792, 804 (2d Cir.1980), for the proposition that the court may accept representations of counsel in lieu of evidence regarding a witness’s availability. Maj. Op. at 861. Setting aside the conflict between this proposition and the standard the TCCA applied, see Maj. Op. at 861, n. 3, I sincerely doubt that Sindona is valid law on this point. Although the Second Circuit decided Sindona six months after the Supreme Court announced the burden-of-proof requirement in Roberts, the Sindona court cited Bailey v. Southern Pacific Transportation Co., 613 F.2d 1385 (5th Cir.1980) — a case decided before Roberts — in support of the proposition the majority opinion quotes. As Bailey is not viable on this point in light of Roberts, neither is Sindona. In any event, a 1980 out-of-circuit case is certainly not binding on us, and we should not follow it.
. That this prompting was necessary demonstrates just how weak the prosecution’s case would appear to a jury without Shelton's testimony. I emphasize it for this reason only.