NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0178n.06 No. 10-2063 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J UAN WAL KER, Petitioner-Appellant,

v. SHI RL EE A. HARRY, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED S TATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : COOK, MCKEAGUE, a nd ROTH, Circuit J udg es. *
COOK, Circuit J udg e. J uan Walker appea ls the district court’s denial of his habea s petition. We g rante d an expanded Certifica te of Appea lability on two issues: 1) whether the state trial court’s decision to admit testimony reg arding a dy ing victim’s non-ver bal identification violated Walker’s ri gh t s u nder the Six th Amendment Confrontation Clause; and 2) whether the state appea ls court proper ly reje cted Walker ’s ineff

ective a ssistance of c ounsel claim. We aff irm.

A jury convicted Walker for the murder of Tommie L ee Ba ines, who died from three g unshot wounds inflicted by a 9mm handg un. Police transporte d Ba i n es t o the hospital shortly afte r the shooting, a

nd doctors per formed two sur g erie s on Ba ines during the next few day s. The surg erie s proved unsuc cessf

ul, and B aines died f

rom his injuries four day s after the shooting. Acc ording to
The Honora

ble J ane R. Roth, United States Court of Appea ls for the Third Circuit, sitti ng * by desig nation.No. 10-2063

W alker v . Harry

Ba ines’s mother, on the day befor e Ba ines died, she asked h i m whether Walker was the shooter. Ba ines nodded his head in the aff i rm ati ve. At trial, Walker moved to suppress as hear say the testimony of B aines’s mother

reg arding

the hea d nod. The state tr ial court conclude d that the nod fell within the “dy ing decla ration” exception to Michig an’s hear s ay rule and denied Walker’s motion.

Whil e Walker’s direc t appea l pended, the Supreme Court decide d Crawf ord v. W ashington , 541 U.S. 36 (2004). The Crawf ord Court held that the Confrontation Clause bars the use of “testimonial” hear say in criminal trials. See id. at 51-52. Walker filed a supplemental brief with the Michig an Court of Appea ls, citing Crawf ord and arg uing that testimony reg arding the nod violated h i s Confrontation Clause rig hts. The court reje cted Walker’s arg ument and aff irmed. After the Michig an Supreme Court denied him leave to appea l, 705 N.W.2d 133 (Mich. 2005), and the United States Supreme Court denied his petition for a writ of cer tiorari, 549 U.S. 844 (2006), Walker filed h i s h abea s petition with the district court, raising both Confrontation Clause and ineffe ctiv e assistance claims. The district cour t denied both claims. This appe al followed. Section 2254(d) pr ovides:

An application for a writ of habea s corpus on behalf of a person in custody pursuant to the j udg men t o f a S t at e court shall not be gra nted wit h respe ct t o any claim t hat was a djudicated on the me rits in St ate c ourt proce eding s unless the adjudica tion of the claim—

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W alker v . Harry (1) resulted in a decision that was co n t ra ry t o , o r i n v o l v ed an unre asonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea sonable deter mination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 28 U.S.C. § 2254(d) (2006).

Walker ar g ues that the Michig an Court of Appe als’s re jection of his Confrontation C lause challeng e wa s “cle arly

err oneous and objectively unrea sonable.” We disag ree . To the extent that Walk er ch alleng es the state court’s finding that the alleg ed nod was a “dy ing decla ration” under Michig an’s evidentiar

y rules, that claim is not cog nizable on fede ral habea s revie w beca use “State Court ruling s on the admissibili ty of evidenc e may not be questioned in a fede ral habea s proce eding unless [t hey ] ra ise[] a fede ral constitutional que stion.” Bell v. Arn , 536 F.2d 123, 125-26 (6th Cir. 1976).

The dist rict court corr ectly reje cted W alker ’s Crawf ord arg ument as well. Fa

r fr om being “cle arly established Fe dera l law, as deter mined by the Supreme Court of the United States,” the Supreme Court has ref

raine d from ruling on the status of dy ing decla rations under the Confrontation Clause. I n Crawf

ord and ag ain in Giles v. Calif ornia , 554 U.S. 353 (2008 ), the Supreme Court hinted that dy ing decla

rations may fall within an exception to the constitutional bar ag ainst testimonial hear say . See Crawf ord , 541 U.S. at 56 n.6 (“A lthough many dy ing decla rations may not be testimonial, ther e is a

uthority for admitting even those that clea rly are . . . . We need not de cide

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W alker v . Harry

in this case whether the Six th Amendment incorporates an exception for testim o n i al dy ing d ecla rations.”) ; Giles , 554 U.S. at 358 (re cog nizi ng dy ing decla rations as one of “two fo rm s o f testimonial statements
. . . admitted at common law even th o u gh they wer e unconfr onted”)

. The Michig an court’s holding on Walker’s Confrontation Clause challeng e thus did not offe nd “cle arly established” la

w.

L astly , Walker g rounds his ineffe ctive assistance claim on his tria l c ounsel’s failure to c all two of Ba ines’s trea ting phy sicians who, Walker asser ts, would have testified that Ba ines was nonresponsive and would have been unable to make the g esture identify ing Walker as his shooter

. As the district court noted, howeve r, Walker cannot establish prejudice beca use he failed to call either phy sician at the evidentiary hear ing—a lso known i n Michig an as a “ Ginther hear ing,” see People v. Ginther , 212 N.W.2d 922 (Mich. 1973)—during his state court dire ct appe al:

As an initial matter, petitioner failed to call Dr. Fowle r or Dr. Nava rra to testify at the Ginther hear ing. P et i t i o ner has offe red, neither to the Michig an courts or to this Court, any evidenc e bey ond Her bert Fr iedman’s hear say testimony , as to what the testimony of Dr. Fowle r o r Dr

. Nava rra would have been. I n the absenc e of such proof, petitioner is unable to establish that he was prejudice d by counsel’s failure to call Dr. Fowle r t o testify at t rial, or f or fa iling to attempt to impeach Dr. Navarr a’s trial testimony , so as to support his ineffe ctive assistance of counsel claim. See Clark v. W aller , 490 3d 551, 557 (6th Cir. 2007). Be cause Dr. Fowle r and Dr. Nava rra did not testify at the Ginther hear ing, this Court may not hold an evidentiar y hear ing to permit petitioner t h e o pportunity to develop what his testimony would have been beca use he “fa iled” to deve lop the evidentiary support for this claim i n state court, as re quired by

28 U.S.C. § 2254(e)(2)

. We ag ree and af

firm.

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