### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 21, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

No. 01-12224 D. C. Docket N

o. 99-01176 CV-J-21 CHARLES EVERETT WASHINGTON, Petitioner-Appellee,

versus JAMES CROSBY, CHARLIE CRIST, Florida Attorney General,, Respondents-Appell ants.

Appeal from the United States District Court for the Middle Dist

rict of Florida (March 21, 2003)

Before DUBIN

A, RONEY a

nd COX, Circuit

Judges. DUBINA, Circuit Judge:2

Appellant, the State of Florida (“State”), appeals the district court’s order granting appellee/petitioner, Charles Everett Washington (“Washington”), federal habeas relief. For the reasons that follow, we reverse. I. BACKGROUND A. Facts On April 8, 1992, a

black male sold

less than 0.1 gram

of cocaine to a confidential informant (“CI”) in Suwannee County, Florida. Authorities videotaped the drug transaction. The audio portion of the videotape contained several incriminating statements by the CI, identifying the suspect as “ Charles.” Prior to trial, th

e State inform

ed Washington that t

he State would not div

ulge the identity of the CI. At trial, the Sta

te presented the te stimony of M ichael Bonds (“

Bonds”), who testified that he was with the CI during the drug transaction. Bonds testified that two black male s approached the CI ’s car. At the time of the tra

nsaction, Bonds did not know either indi

vidual. The entir

e drug transaction to ok approximatel y one minute and tw

enty seconds. B onds testified that he relied heavily

on the videotape in making hi s identification o f Washington as one of the suspects. During closing argum

ent, the State re

lied on the audio portion

of the videotape to persuade the jury that Washington was the correct suspect. The State rem inded3

the jury that the CI referred to the suspect as “Charles” ap proximately five times. During its delibera tions, the jury requested permission to review the v ideotape. Although Washington objected, the tr ial court perm

itted the videotape to

be replayed for the jury. B. Procedural History The State charge

d Washington with sa

le or delivery o f cocaine within 1, 000 feet of a school and possession of cocaine with intent to sell or

deliver within 1,000 feet of a scho ol. Prior to trial , Washington file d a motion in limine

asking the trial court to ex

clude as evidence th

e audio portion of the v

ideotape, arguing that the use of such e

vidence would violate

his rights to confronta

tion and due process. Throughou

t the trial, Wa

shington renewed his o

bjection to the audi

o portion of the videotape, by way of a motion for reconsideration, a m otion for a judgment of ac

quittal, and num

erous motions for

a mistrial. A jury found Washington guilty as charged. The trial court sentenced Washington as an habitual offender t

o twenty-five

years imp

risonment with a three-year minimum mandat ory ter m. Washington appeale

d his conviction to the F lorida appellate c ourt, raising several issues, inc

luding whether the tr

ial court erred in admitting the aud io portion of the videotape of the purported cocaine transaction. The appellate court1 When the State or its representative appeals, a certificate of app eal abi lit y is n ot n eces sar y. See Fed. R. App. P. 22(b)(3). 4 affirmed W

ashington’s convicti

on without opinion. W

ashington then filed a motion for post-c

onviction relief pur

suant to Rule 3.850, Fla. R. Crim . P., raising several claim

s, including his obje

ction to the audio porti

on of the videotape. The trial court denied hi s motion and the ap pellate court aff

irmed. Washington then fil

ed a federal habeas petition asserting four grounds for relief. As one g

round for relief,

Washington argues

that the trial court

improperly admitted the au

dio portion of the videot

ape, in violation of h

is Fifth, Sixth, a

nd Fourteenth Am

endment rights. The district court entered an order g

ranting the habeas petition, fi

nding that the adm

ission of the audio port

ion of the videotape violated Washington’s Sixth Amendment right to confrontation. The State then perfected this appe

al. 1 II. ISSUE Whether the district c ourt erred in determini ng that th e trial cou rt’s admission of the a

udio portion of the video tape violated Wa

shington’s Sixth Amendme

nt right of confronta

tion. III. STANDARD OF REVIEW5

In habeas cases, this court reviews de novo the district court’ s determinatio n as to whether a sta

te court decision wa

s reasonable and re

views for clear error the district court’s find ings of fact underlying the claim. Hall v. Head , 310 F.3d 683, 690 (11th Cir. 2002). IV. ANALYS IS The district court

erred in granting W

ashington habeas reli

ef because it erred in its application of the Anti-Terrorism and Effective Death Penalty A ct (“AEDPA

”). The AED

PA limits a fe

deral court’s r

eview. The fe

deral courts will not grant a petition f

or writ of habeas c

orpus of a state pris oner on any clai m adjudicated on the m

erits in the state c ourt unless (1) the a djudication of the c

laim resulted in a decisi on “contrary to,” or involved an “unreasonable applic ation of,” clearly established federal law as determined

by the United St

ates Supreme

Court, or (2) the decision w

as an unreasonable de

termination of

the facts as prese

nted in state court. 28 U.S.C. § 225 4(d)(1). A state court deci sion is “contrar y to” the Suprem

e Court’s clear

ly established precedent if (1) it applies a rule contradicting the governing law as set forth by Suprem

e Court case law,

or (2) the state co

urt, in a case wi

th facts indistinguishable from

those in a decision of the Supreme C ourt, arrives at a different result. Bottoson v. Moore , 234 F.3d 526, 531 (1 1th Cir. 2000), cert.6

denied , 534 U.S. 956, 122 S. Ct. 357, 151 L.Ed.2d 270 (2001). “A state court decision involves an unr

easonable applicati

on of Supreme C ourt precedent ‘ if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner’s case.’” Id. (quoting Williams v. Ta

ylor , 529 U.S. 362, 407, 120 S.Ct. 1495, 1520, 146 L.Ed.2d 389 (2000)). The Supreme Court cautioned that “a feder al habeas court may not issue

the writ simpl

y because that c

ourt concludes in its in

dependent judgment that the relevant state-court decision applied clearly established federal law erroneously

or incorrectly . Rather, that a pplication must a

lso be unreasonable.” Williams , 529 U.S. at 411 , 120 S. Ct. at 152 2. In applying the “contrary to” prong of AEDPA, we have recognized that where no Suprem

e Court precedent i s on point, “we cannot say that t

he state court’s conclusion . . . is contrary to clearly established Federal law as deter mined by the U.S. Supreme Court.” McIntyre v. Williams , 216 F.3d 1254, 1258 ( 11th Cir. 2000). Wa

shington does not cite an y Supreme

Court precedent tha

t has held that playing the a

udio portion of a videota

pe, without an opport

unity to crossexamine the speaker, viol ates a defendant’s Confr ontation Clause ri ghts. Thus, we conclude that the Flo

rida state court’ s decision cannot be “ contrary to” c

learly established federal law as determined by the Supreme Court. Cf. Isaacs v. He ad ,2 Even if we assumed th at the district cou rt did not err in fin

ding a Confronta

tion Clause violation, we would hold that the violation was ha

rmless under Brecht v. Abrahamson , 507 U.S. 619, 113 S. Ct. 1710, 123 L.Ed.2d 353 (1993). Accordingly, Washington would still not be ent

itled to relief.

7 300 F.3d 1 232, 1252 (11th Cir. 2 002) (hol ding that Georgia Sup reme Court’s decision was not contr

ary to clearl

y established fe

deral law becaus e neither the petitioner nor the f

ederal court found a

ny Supreme

Court precedent to support the petitioner’s asse

rtion). Because

the district court e

rred in its applicat

ion of the ADEPA standar

d of review, we

reverse the distri

ct court’s order

granting Washington federal habeas relief and remand this case with directions that judgment be entered in favor of the State. 2 REVERSED and REMANDED.