[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-16416 ELEVENTH CIRCUIT
APRIL 3, 2006
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00470-CV-RLV-1
KEINO LEON ESPY,
Petitioner-Appellant,
versus
ARSENE C. MASSAC, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 3, 2006)
Before BIRCH, WILSON and COX, Circuit Judges.
COX, Circuit Judge
Keino Leon Espy (“Espy”) appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. Espy was convicted in a Georgia state
court of armed robbery and possession of a firearm during the commission of a
felony. He is currently incarcerated.
I. Facts and Procedural History
On New Year’s Day 1998, two men entered the Ramada Inn in Conyers,
Georgia, and approached the duty clerk at the front desk, Bharat Brahmbhatti. The
men asked about room rates, and Brahmbhatti handed them a registration card, after
which the taller of the two men pulled a gun and demanded money. The other robber
took some $800 to $1,000 from the cash drawer. One of the robbers had held a Coke
can when he entered the Inn, and he left it on the counter. Brahmbhatti described the
robbers as two black males, one taller, with lighter skin, and the other shorter. The
shorter of the two was wearing a jacket with a hood cap and pockets. At trial,
Brahmbhatti identified Espy as the taller robber who brandished a gun. A latent
fingerprint that matched Espy’s was found on the Coke can.
Officer Marc Blackard, who went to the scene, was allowed to testify, over
objection, that he was approached by two guests of the Ramada Inn – Angela Lee and
her husband, Roger – some fifteen to twenty minutes after the robbery. They
described, he said, two men they had seen leaving the motel, and their descriptions
matched Brahmbhatti’s descriptions. The trial court admitted Officer Blackard’s
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testimony about the statements of these witnesses pursuant to the Georgia “res
gestae” hearsay exception.1
Espy was convicted, and he appealed. On appeal, Espy made two contentions:
(1) that the statements in question did not fall within the Georgia res gestae
exception; and (2) that the admission of the statements violated Espy’s Sixth
Amendment right to confront the witnesses against him. Addressing only the first
contention, the Georgia Court of Appeals affirmed Espy’s conviction. Espy v. State,
246 Ga. App. 1, 539 S.E.2d 513 (2000). Espy did not seek further direct review.
After unsuccessfully seeking collateral relief in Georgia, Espy timely filed this 28
U.S.C. § 2254 petition, contending, among other things, that the Georgia court’s
admission of the witnesses’ statements violated his Sixth Amendment right to
confrontation.
The case was referred to a magistrate judge. The magistrate judge recognized
that in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme
Court had announced a new test for determining whether the admission of out-of-
court testimonial statements violates a defendant’s Sixth Amendment right to
1
The Georgia statute codifying the res gestae exception provides: “Declarations
accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of
device or afterthought, shall be admissible in evidence as part of the res gestae.” Ga. Code § 24-
3-3 (2005). This Georgia hearsay exception is analogous to the federal hearsay exceptions for
present sense impressions and excited utterances. Fed. R. Evid. 803(1), (2). Whether the
statements in question actually fit the Georgia res gestae exception is not at issue here.
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confrontation. Under Crawford, for testimonial hearsay to be admissible, two criteria
must be satisfied: (1) the declarant must be unavailable to testify at trial; and (2) the
defendant must have had a prior opportunity to cross-examine the declarant. Id. at
59, 124 S. Ct. at 1369. The magistrate judge concluded that the statements at issue
were not testimonial, and therefore recommended not applying the Crawford test.
The magistrate judge instead recommended applying the test from White v.
Illinois, 502 U.S. 346, 112 S. Ct. 736 (1992). In that case, the Supreme Court held
that statements offered pursuant to a firmly rooted hearsay exception are admissible
because they carry with them indicia of reliability sufficient to avoid any
Confrontation Clause violation. Id. at 356, 112 S. Ct. at 743. Applying that test, the
magistrate judge recommended holding that the Georgia res gestae exception is
“firmly rooted.” The district court adopted the magistrate judge’s recommendation
and dismissed the petition.
II. Issue on Appeal and Contentions of the Parties
The district court granted Espy’s motion for a certificate of appealability on the
following issue: “Whether the petitioner’s Sixth Amendment right to confront
witnesses was violated when a police officer was permitted to testify regarding out-
of-court statements made by two witnesses.” (R.1-21.)
4
Espy relies on the Supreme Court’s decision in Crawford. The Respondent
contends that Crawford announced a new constitutional rule of criminal procedure,
and thus that it does not apply retroactively to cases on collateral review, such as this
one. See Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, rehearing denied
490 U.S. 1031, 109 S. Ct. 1771 (1989). Espy contends that the Crawford Court did
not announce a new constitutional rule. Alternatively, Espy argues, if the rule
announced in Crawford does constitute a new rule, then the rule is sufficiently
important to be applied retroactively.2
To decide this appeal, then, we must first decide whether the Supreme Court’s
decision in Crawford established a new rule. If so, we must determine whether that
rule applies retroactively to cases like this one on collateral review. If it does not
apply retroactively, we must decide whether the law in force at the time Espy’s
conviction became final warrants relief.
2
Espy also contends that, because this case is here on de novo review due to the state
appellate court’s failure to address the Sixth Amendment issue, the retroactivity rule of Teague
should not apply. This contention confuses the proper standard of review with the proper law to
be applied. Additionally, Espy contends that the Respondent has waived the Teague issue by
failing to raise it in the initial brief. It is the parties’ responsibility to raise the issues to be
decided on appeal, but it is this court’s responsibility to correctly apply the law, and this court
must apply the correct rules of law to the issues before it whether the parties have correctly stated
those rules in their briefs or not.
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III. Standard of Review
We review the district court’s denial of a § 2254 petition de novo. Sims v.
Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). The Georgia Court of Appeals
failed to address the Confrontation Clause issue, even though Espy included it in his
brief in that court. Thus, we review the state court’s decision de novo. See Romine
v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001).
IV. Discussion
The district court held that the statements at issue here were not testimonial in
nature, and thus that the test announced in Crawford does not apply. We also
conclude that the Crawford test does not apply, but we do so without reaching the
question whether the witnesses’ statements in question were testimonial. We
conclude that Crawford announced a new rule not retroactively applicable to cases
on collateral review, and that the law applicable to Espy’s case does not warrant
relief.
A. Crawford Established a New Rule
To determine whether a change in a procedural rule of law subsequent to a
defendant’s conviction applies retroactively when the defendant’s conviction is
collaterally attacked, we apply the Supreme Court’s decision in Teague, 489 U.S. at
310, 109 S. Ct. at 1075. The initial inquiry when applying Teague is whether a
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decision has established a new rule of law. See McCoy v. United States, 266 F.3d
1245, 1256 (11th Cir. 2001). A case establishes a new rule “if the result was not
dictated by precedent existing at the time the defendant's conviction became final.”
Teague, 489 U.S. at 301, 109 S. Ct. at 1070 (emphasis in original); McCoy, 266 F.3d
at 1256 (citing Teague).
In Crawford, the Supreme Court considered whether the Sixth Amendment
permitted a defendant’s wife’s prior recorded statements to be introduced against him
at trial where a state marital privilege prevented the wife from testifying. Crawford,
541 U.S. at 40-42, 124 S. Ct. at 1357-58. The Court held that the wife’s statements
could not be admitted unless the defendant had a prior opportunity to cross-examine
her. Id. at 68, 124 S. Ct. at 1374. This holding represented a clear break with prior
precedent. See White, 502 U.S. at 355-56, 112 S. Ct. at 742-43; Ohio v. Roberts, 448
U.S. 56, 65, 100 S. Ct. 2531, 2539 (1980).
Under prior precedent, the recorded prior testimony of an unavailable declarant
could be admitted upon a showing of sufficient indicia of reliability, even without
cross-examination. Roberts, 448 U.S. at 65, 100 S. Ct. at 2539; see also White, 502
U.S. at 353-54, 112 S. Ct. at 742-43 (applying the Roberts requirement of sufficient
indicia of reliability). Crawford abrogated Roberts and established the rule that no
recorded testimonial statement can be admitted at trial unless the proponent
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establishes (1) that the declarant is unavailable to testify, and (2) that the defendant
had a prior opportunity to cross-examine the declarant about his or her statements.
Crawford, 541 U.S. at 59, 124 S. Ct. at 1369. Since Crawford overruled the
precedent that would otherwise have dictated the result in the case, it cannot be said
that the result in Crawford was “dictated by precedent existing at the time the
defendant's conviction became final.” See Teague, 489 U.S. at 301, 109 S. Ct. at
1070 (emphasis in original). Thus, applying Teague’s test, Crawford established a
new rule.
B. The Crawford Test Does Not Apply Retroactively
Teague holds that new procedural rules announced by the Supreme Court
ordinarily should not be applied retroactively to cases on collateral review. 489 U.S.
at 305, 109 S. Ct. at 1073. But, the Teague rule has two exceptions. A new rule
applies retroactively if it either (1) immunizes certain private, individual conduct
from criminal regulation; or (2) “requires the observance of those procedures that .
. . are implicit in the concept of ordered liberty.” Id. at 307, 109 S. Ct. at 1073
(internal citations and quotation marks omitted). The first exception obviously does
not apply here. The Teague Court limited the application of the second exception to
“watershed rules of criminal procedure,” Id. at 311, 109 S. Ct. at 1076, “without
8
which the likelihood of an accurate conviction is seriously diminished.” Id. at 313,
109 S. Ct. at 1077.
The standard for whether a new rule meets the second Teague exception is a
strict one. Indeed, it is unlikely that the Supreme Court has found any new rule to fit
this exception since its announcement. See Schriro v. Summerlin, 542 U.S. 348, 352,
124 S. Ct. 2519, 2523 (2004). The Teague Court provided only minimal guidance as
to the nature of a rule that would meet the exception, but the Court has since cited the
rule announced in Gideon v. Wainwright, 372 U.S. 335, 343, 83 S. Ct. 792, 796
(1963), as one that would meet the exception were it announced today. See Saffle v.
Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 1264 (1990). Gideon established the
procedural right to counsel in state court in felony cases at all critical stages of the
trial process. 372 U.S. at 343, 83 S. Ct. at 796.
Clearly, the right to counsel at trial is a watershed rule that seriously improves
the likelihood of an accurate conviction. Although the rule announced in Crawford
also impacts the accuracy of criminal convictions, it does not qualify as a “watershed”
rule in the mold of Gideon. Crawford merely altered the existing regime outlined by
White, 502 U.S. at 355-56, 112 S. Ct. at 742-43, and Roberts, 448 U.S. at 65, 100 S.
Ct. at 2539.
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At least five other circuits have directly addressed this issue, and all but one
have either concluded or suggested that Crawford does not apply retroactively. See
Murillo v. Frank, 402 F.3d 786, 790-91 (7th Cir. 2005); Dorchy v. Jones, 398 F.3d
783, 788 (6th Cir. 2005); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004); Brown
v. Uphoff, 381 F.3d 1219, 1226-27 (10th Cir. 2004); see also McGonagle v. United
States, 137 Fed. Appx. 373 (1st Cir. 2005) (per curiam unpublished) (expressing
doubt that the Crawford rule meets the Teague exceptions); Evans v. Luebbers, 371
F.3d 438, 444-45 (8th Cir. 2004) (en banc) (same). But see Bockting v. Bayer, 399
F.3d 1010 (holding that Crawford applies retroactively), rehearing en banc denied,
Bockting v. Bayer, 418 F.3d 1055 (9th Cir. 2005). We agree with the weight of
authority on this issue and hold that Crawford did not announce a watershed rule of
criminal procedure, and it therefore does not apply retroactively to cases on collateral
review.
C. The Law in Force at the Time of Espy’s Conviction
Became Final Forecloses Relief
Turning to the merits of Espy’s petition, we review the state court’s decision
based on the law in force prior to Crawford. See White, 502 U.S. at 355-56, 112 S.
Ct. at 742-43. Under White, the sole question is whether the statements at issue here
carried with them sufficient indicia of reliability to bring them within a firmly rooted
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hearsay exception. Id. We conclude that the statements in question met this standard.
The Georgia state court admitted the statements pursuant to its res gestae exception.
This exception has been part of the Georgia Code since at least 1863,3 and it was a
staple at common law.4 The Federal Rules of Evidence have codified aspects of the
exception in two subsections of Rule 803. Thus, the exception is firmly rooted.
Whether the statements in question properly fit Georgia’s res gestae exception has not
been placed at issue here, and thus we accept the Georgia Court of Appeals’ decision
that Georgia’s res gestae exception applies.
V. Conclusion
We affirm the district court’s denial of Espy’s 28 U.S.C. § 2254 petition.
AFFIRMED.
3
See Ga. Code § 3696 (1863).
4
See Michael H. Graham, Fed. Prac. & Proc. § 7043 (explaining the replacement of the
common law concept of the res gestae with Fed. R. Evid. 803(1) and (2)).
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Kieno Leon Espy v. Arsene Massac
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-04-03
Citations: 443 F.3d 1362
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