RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0074p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MICHAEL ANTHONY PEAK,

 Petitioner-Appellant,

v.

PATTI WEBB,

 Respondent-Appellee.

X

-

-

-

-

>

,

-

-

-

N

No. 09-5977

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 07-00233—John G. Heyburn II, District Judge.

Argued: November 16, 2011

Decided and Filed: March 14, 2012 

Before: MERRITT, BOGGS, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Howard J.C. Nicols, SQUIRE, SANDERS & DEMPSEY (US) LLP,

Cleveland, Ohio, for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY

ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Howard

J.C. Nicols, Steven A. Delchin, SQUIRE, SANDERS & DEMPSEY (US) LLP,

Cleveland, Ohio, for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY

ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. Michael Anthony Peak,

Central City, Kentucky, pro se. 

BOGGS, J., delivered the opinion of the court, in which MERRITT, J., joined,

with MERRITT, J. (p. 13), also delivering a separate concurring opinion. CLAY, J. (pp.

14–33), delivered a separate dissenting opinion.

1
No. 09-5977 Peak v. Webb Page 2

1

The victim was identified six years later as Miguel Garcia. Until then, he was called Juan Doe

or Unidentified Male, Case FA-99-09. See Dan Berry, A Name and Face No One Knew, but Never Forgot, N.Y. TIMES, Apr. 21, 2008, http://www.nytimes.com/2008/04/21/us/21land.html? pagewanted=all

(describing the search for Garcia’s identity).

_________________

OPINION

_________________

BOGGS, Circuit Judge. Michael Peak, convicted of first-degree murder and

sentenced to life in prison, petitioned the United States District Court for a writ of habeas

corpus. He argued that his Confrontation Clause rights had been violated at trial when

the government played a tape recording of his co-defendant’s custodial statement

without affirmatively calling the co-defendant as a witness, over Peak’s objection. The

court denied the petition, and Peak now appeals that denial. Though the trial court may

well have violated Peak’s constitutional rights when it failed to sustain his objection, we

cannot say, as the Supreme Court now requires, that fairminded jurists could not disagree

with our opinion when the co-defendant was in the courtroom and available to testify

and be (cross-) examined. In fact, four such fairminded justices of the Kentucky

Supreme Court did disagree. Therefore, we are compelled to AFFIRM.

I

In 2002, Leann Bearden, Patrick Meeks, and Michael Peak were charged with

murdering, robbing, and conspiring to murder an unidentified person. Peak v. Kentucky,

197 S.W.3d 536, 541 (Ky. 2006).1 The investigation of Peak, Meeks, and Bearden

began when Bearden told Charles Mackem, a man to whom she sold cocaine, that she

had been involved in a murder. Mackem told the story to police in exchange for

immunity from prosecution.

The case was notable for its lack of physical evidence or witnesses. No blood

or fingerprints were found at the scene. The murder weapon was never found. The only
No. 09-5977 Peak v. Webb Page 3

2

Bearden’s facts were partially corroborated by the testimony of Mike Cissell, who did not

participate in and was not present at the murder, but who helped Peak and Meeks move the victim’s body

hours after the murder was committed. Cissell, one of Peak’s best friends, testified that Peak and Meeks

had approached him in advance of the murder about killing a man and stealing his cocaine.

3

Bearden seems to have known Meeks through a mutual friend when she was in graduate school.

 She stated she did not know Peak until the night they first discussed killing Mike. Specifically, she stated

that she met Peak the night she discussed the victim with Meeks, and that she and Peak had sex later that

same night.

4

In his taped statement, which was played at trial and is the subject of this appeal, Meeks said

that he used to live in the farmhouse. 

witnesses were the three co-conspirators themselves. Of the three, only Bearden

testified. Her testimony was the version of the facts primarily relied upon at trial.2

According to Bearden’s testimony at trial, she met the victim, whom she only

knew as “Mike,” at a social occasion in Louisville, where they used cocaine together.

At another social event, Mike told Bearden that he wanted to sell a kilo of cocaine.

After learning that Mike was trying to sell a kilogram of cocaine, Peak, Meeks, and

Bearden conspired to kill Mike in order to take the cocaine.3

 Peak allegedly said to

Meeks, “Yeah, you get the gun and I’ll do the shooting.” She testified that the next night

she saw Meeks give Peak a gun. Bearden testified that at that point, she worried that the

men were actually planning to kill Mike. 

The next night, two nights after the three had first discussed killing the victim,

Bearden, Peak, and Meeks drove to a farmhouse together.4

 Meeks told Bearden to call

Mike and tell him there was a buyer for the cocaine. Bearden testified that she thought

Meeks also had a gun at this point, so that both men were armed. She testified that Peak

told her, “When you walk in and Mike’s behind you, you better get out of the way or

you’re going to get shot yourself.” Bearden testified that when she, Meeks, and the

victim arrived at the farmhouse she went inside, hoping to find a way out of the house

so that she could escape. She testified that no one was right behind her, but that she

believed Mike came in next, and that Meeks did not come in the house. She stated that

she did not see Peak when she went into the house. She stated that she “wound up”

walking into a bathroom and was trying to open a window in the bathroom when she

heard two shots. She testified that she heard Peak cursing and then calling for Meeks,
No. 09-5977 Peak v. Webb Page 4

yelling: “He’s not dead, he’s still standing, and he’s coming towards me.” She then left

the bathroom, and ran into Peak, who said: “Get Meeks and get him in here.”

Bearden further testified that when it was getting light out, hours later, Meeks

came outside and told her to come in to help clean up blood. She testified that she saw

blood “everywhere” but that she did not see Mike’s body. Bearden testified that, when

they were finished cleaning, they drove out into the country and Peak got out of the car

to throw out the gun. However, Bearden stated that she did not see the gun at any point.

She merely stated that Peak said: “We need to get rid of the gun.” 

Later in her testimony, Bearden talked about telling the police “everything” as

soon as they showed her photos of Peak and Meeks at an initial questioning. She took

them to where the gun had allegedly been discarded and to the farmhouse, which had

been “burnt.” In her testimony, Bearden verified that she had signed a deal with

prosecutors that if she testified truthfully they would not seek the death penalty against

her. 

After direct examination of Bearden, Peak’s attorney moved for severance and

a mistrial, because Bearden was “wearing two hats,” as she was serving as both a

defendant and as a witness for the prosecution, and because she had been allowed to be

in the courtroom during the prosecution’s opening statement, which gave her “the benefit

of hearing him characterize her testimony immediately before getting on the witness

stand.” Meeks also moved for severance of the trials. These motions were denied.

During cross-examination, Bearden was demonstrated to be a witness with

somewhat less than sterling credibility. She agreed that she was a drug dealer. She was

impeached with contradictory statements that she had made about being frightened

primarily of Meeks, not of Peak. She admitted that she did not actually see the gun,

when she had said initially that Meeks gave Peak the gun. She stated she never saw

blood on Peak or Meeks after the killing. She also stated that she became pregnant with

Peak’s child and had an abortion. Finally, Bearden admitted that she had failed a

polygraph exam that she took while imprisoned.
No. 09-5977 Peak v. Webb Page 5

5

These tapes (there were two) were introduced at trial as Commonwealth Exhibit 53A and 53B.

The tapes were transcribed in the record but were not provided for our review, so they are quoted from the

record transcript.

The only direct evidence establishing Peak as the shooter in this murder came

from Meeks’s unsworn taped confession.5 This confession was undisputedly made to

police while Meeks was in custody, after his arrest. At trial, Meeks asserted his Fifth

Amendment right not to incriminate himself. Because the state wanted to play his taped

interrogation, it created a redacted version to skirt the statements that would violate

Meeks’s right against self-incrimination. However, Meeks thought this version made

him appear even more to have been the shooter. Because he did not want this redacted

version to be played, Meeks waived his Fifth Amendment rights so the state could play

the unredacted tape. Meeks was available to be called as a witness at trial. Peak had not

had any prior opportunity to cross-examine Meeks.

Peak objected to the government’s introduction of Meeks’s taped confession,

arguing that playing the tape without calling Meeks to the stand at the same time

violated Peak’s Sixth Amendment right to confront the witnesses against him. He also

moved for a mistrial. His objections were overruled. In overruling his objections, the

court stated that any party could now call Meeks, as his Fifth Amendment rights had

been waived.

The forty-five-minute tape was then played, during the testimony of Detective

Griffin of the Kentucky State Police, who had arrested Meeks. On the tape, Meeks

stated that Peak was the shooter. Meeks’s statement was played twice more during trial:

during the government’s closing argument, and, at the jury’s request, during

deliberations. The tape stated in relevant part: 

[Mike, Leann, and I] [w]alked in the door [of the house where the victim

was killed]. Next thing I know Leanne [sic]—Tony—Tony jumped out

from a doorway[,] pulled a gun[,] and Leanne screamed, ran. I heard a

gunshot. I ran. We both ran outside. I heard more gun shots. I came

back inside, found the individual laying on the ground face down on the

ground in a pool of blood with Tony standing pretty much over top [sic]

of him hollering and screaming. Then I proceeded to go back outside

because I heard Leanne scream. I went outside. She was screaming,
No. 09-5977 Peak v. Webb Page 6

6

Meeks’s statement on the tape differs dramatically from Bearden’s version of the events. Meeks

recalls Bearden running immediately outside; she recalled being inside the house when she heard shots

fired. Meeks’s version leaves out the screaming and Peak shouting that Mike was not dead yet. Meeks

makes the incident sound quick, while Bearden’s version had the three at the farmhouse for at least three

or four hours.

7

Justice Roach concurred only in the result.

freaking out. I go back inside. Tony’s pretty much freaking out . . . over

what he’s done. And then . . . worried about where the drugs are. Finds

the drugs. Gets in Leanne’s car. Drives it past the river. Throws the gun

in the river.6

Meeks also stated, “I didn’t kill anybody” and “I thought the gun was for Tony’s

protection.” 

At the end of the trial, the jury convicted Peak of intentional murder, first-degree

robbery, conspiracy to commit murder, and tampering with physical evidence. He was

sentenced to life in prison without the possibility of probation or parole for twenty-five

years. Meeks was convicted of wanton murder, first-degree robbery, conspiracy to

commit murder, and tampering with physical evidence. He was sentenced to life in

prison without the possibility of probation or parole for twenty-five years. Peak, 197

S.W.3d at 540. Bearden pleaded guilty to murder, robbery, and conspiracy and received

a twenty-year sentence.

Peak appealed his conviction. His appeal was consolidated with Meeks’s. Ibid.

A majority of the Kentucky Supreme Court, comprised of four justices, affirmed Peak’s

conviction, but only a three-justice plurality joined the opinion.7

 The plurality reasoned

that the Confrontation Clause does not bar a statement as long as “‘the declarant is

present at trial to defend or explain it.’” Id. at 544 (quoting Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004)). Because Peak had the opportunity to call Meeks as a

witness and chose not to, the court reasoned, he “waived his right to confrontation.”

Ibid.

Three justices dissented, stating that they believed the trial court had erred in

overruling objections to a “clear violation” of the Confrontation Clause, and that they

would grant Peak a new trial. Id. at 551. The dissent relied on Crawford’s language that
No. 09-5977 Peak v. Webb Page 7

8

Up to this point in the case history, Peak had proceeded through counsel. He filed his petition

for habeas corpus pro se.

“[w]here testimonial evidence is at issue, the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.”

Id. at 550 (quoting Crawford, 541 U.S. at 68). Meeks’s statement was undeniably

testimonial, as Crawford explicitly held that “police interrogations” were testimonial.

Crawford, 541 U.S. at 68. Therefore, the dissent reasoned, the trial court had allowed

testimonial evidence to be presented where the declarant was both available and where

there had not been a prior opportunity for Peak to cross-examine him, a violation of both

Crawford requirements. Peak, 197 S.W.3d at 550. The dissent disputed the plurality’s

decision that Peak waived his confrontation rights. It argued that it is not the job of a

criminal defendant to cure the trial court’s error. Ibid. Calling Meeks during Peak’s

case-in-chief was not an adequate substitute for immediate cross-examination, the

dissent reasoned—days later, there would not be the immediacy of cross-examination

and the jurors would be reminded of what they had heard.

One month after the Kentucky Supreme Court opinion was published, Peak filed

a petition for rehearing in the Kentucky Supreme Court. He argued that “[t]he Court’s

majority opinion in this case misconceives the issue and overlooks controlling law in

upholding the prosecution’s introduction and use of the unredacted confession of a

nontestifying co-defendant.” The court denied the petition for rehearing. See Peak, 197

S.W.3d at 536 (noting the denial in the case caption).

Peak next petitioned the United States Supreme Court for a writ of certiorari.

The Court denied the petition after requesting a response on the case after conference.

549 U.S. 1283 (2007); 75 U.S.L.W. 3497 (U.S. Mar. 19, 2007 ). 

Having exhausted his state-court remedies, Peak filed a petition for a writ of

habeas corpus in the district court, raising the single ground that admission of his

Meeks’s taped statement at trial violated his rights under the Confrontation Clause.8

 The

district court denied his petition but granted a certificate of appealability. The court, in

noting the standards set forth by the Antiterrorism and Effective Death Penalty Act
No. 09-5977 Peak v. Webb Page 8

9

AEDPA states in relevant part:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment

of a State court shall not be granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim—

(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 that was presented in the State court proceeding.

28 U.S.C. § 2254. 

10In making its decision, the district court explicitly relied on a Sixth Circuit case, Bailey v.

Pitcher, 86 F. App’x 110 (6th Cir. 2004). However, this case was decided before Crawford and is

irrelevant in any determination of whether the Kentucky Supreme Court was contrary to clearly established

federal law when the federal law in question is Crawford’s holding on the right of a criminal defendant

to confront the witnesses against him.

(AEDPA) of 1996,9 determined that the decision of the Kentucky Supreme Court was

not contrary to Crawford and its progeny, because the district court determined that “the

Constitution does not actually require the prosecution to call a witness to the stand in its

case-in-chief to satisfy the Confrontation Clause. Rather, the Constitution simply

requires that the witness must be made available for cross-examination.” The court

reasoned that “Peak’s ability to have called Meeks is fatal to his Confrontation Clause

argument. Placing a burden on the prosecution to do more than make the witness

available . . . goes beyond what the Supreme Court cases dealing with the Confrontation

Clause have required.”10

Peak appealed the district court’s denial of his petition to this court. We affirm.

II

The Sixth Amendment Confrontation Clause states: “In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S.CONST. amend. VI. Crawford v. Washington held that where “testimonial evidence

is at issue, . . . the Sixth Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68.

Peak’s rights under the Confrontation Clause were at issue when the government

played Meeks’s taped statement. The Supreme Court has held that “witnesses” are those

who “‘bear testimony.’” Crawford, 541 U.S. at 51 (quoting 2 N. WEBSTER, AN
No. 09-5977 Peak v. Webb Page 9

AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). The Court held that

“testimony” is defined as “‘[a] solemn declaration or affirmation made for the purpose

of establishing or proving some fact.’” Ibid. Further, the Court held that “functional

equivalent[s]” of in-court testimony, specifically including custodial examinations, are

the core class of testimonial statements, noting further that “[s]tatements taken by police

officers in the course of interrogations are . . . testimonial under even a narrow

standard.” Id. at 51–52; see also id. at 53 (“interrogations by law enforcement fall

squarely within [testimonial hearsay]”). Meeks’s recorded statement did fall under the

Confrontation Clause—his statement was made during a custodial examination and bore

witness against Peak.

Next, we must consider whether the trial court’s decision to allow the

government to play Meeks’s recorded statement during the testimony of Detective

Griffin was an error clear enough to permit relief under AEDPA. We may only grant

habeas relief to Peak if we find that the trial court’s decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence that was presented in the State court

proceeding.” 28 U.S.C. § 2254(d). The law in question must have been clearly

established at the time the state-court decision became final, not after. See Williams v.

Taylor, 529 U.S. 362, 380 (2000) (“It is perfectly clear that AEDPA codifies Teague [v.

Lane, 489 U.S. 288 (1989)] to the extent that Teague requires federal habeas courts to

deny relief that is contingent on a rule of law not clearly established at the time the state

conviction became final.”). 

Further, the Supreme Court has very recently made abundantly clear that the

review granted by AEDPA is even more constricted than AEDPA’s plain language

already suggests. As long as “fairminded jurists could disagree on the correctness of the

state court’s decision,” then relief is precluded under AEDPA. Harrington v. Richter,

131 S. Ct. 770, 786 (2011) (internal quotation marks omitted). A habeas court “must

determine what arguments or theories supported or . . . could have supported[] the state
No. 09-5977 Peak v. Webb Page 10

11A conviction becomes final when a petition for certiorari is denied or when the time for filing

a petition for certiorari elapses. Allen v. Hardy, 478 U.S. 255, 258 n.1 (1986). A petition for a writ of

certiorari from a state criminal judgment, when any party has filed a petition for rehearing in the state

court, must be filed within 90 days after the petition for rehearing is denied. 28 U.S.C. § 2101(c)

(incorporating by reference United States Supreme Court Rule 13(1), (3)). Therefore, because Peak filed

a petition for rehearing and the petition was denied, he had 90 days from August 24, 2006, when his

petition was denied, to file a petition for certiorari. He did not do so, and therefore, his conviction became

final on November 22, 2006. See U.S. Sup. Ct. R. 30.

court’s decision; and then it must ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with the holding in a prior

decision of this Court.” Ibid. Therefore, if it is possible for a fairminded jurist to believe

that the state court’s rationale comports with the holding in Crawford, then we must

deny relief. This is a very high standard, which the Court freely acknowledges. See

ibid. (“If this standard is difficult to meet, that is because it is meant to be.”). 

Crawford requires unavailability and a prior opportunity to cross-examine for the

use of testimonial hearsay. Crawford, 541 U.S. at 68. When Meeks’s statement was

played at trial, Meeks was available and there has been no prior opportunity for Peak

to cross-examine him. Clearly, if Peak was not “confronted” with Meeks, then playing

Meeks’s statement violated Crawford. 

The crux of the issue is whether making a witness available to be called is

confrontation, or whether confrontation instead requires the witness to take the stand at

the very time, according to Supreme Court precedent that was clearly established when

Peak’s conviction became final.11 It is an open question whether confrontation requires

the witness to actually take the stand. At some points, Crawford seems to equate

confrontation with cross-examination, which would require the state to put Meeks on the

stand when the tape was played. See, e.g., Crawford, 541 U.S. at 61 (the Clause

“commands . . . that reliability be assessed in a particular manner: by testing in the

crucible of cross-examination.”); id. at 68 (describing as a violation the admission of a

testimonial statement when the petitioner “had no opportunity to cross-examine her”)

(emphasis added). Another Supreme Court case decided prior to Peak’s case becoming

final also implied that confrontation requires the ability to cross-examine. See Davis v.

Washington, 547 U.S. 813, 822 n.1 (2006) (“The Framers were no more willing to
No. 09-5977 Peak v. Webb Page 11

exempt from cross-examination volunteered testimony or answers to open-ended

questions than they were to exempt answers to detailed interrogation.”). 

However, Crawford also contains language that suggests that confrontation

requires only that the witness be made available to be called at trial, not that the witness

be put on the stand for immediate cross-examination. See Crawford, 541 U.S. at 59

(“Testimonial statements of witnesses absent from trial have been admitted only where

the declarant is unavailable, and only where the defendant has had a prior opportunity

to cross-examine”) (emphasis added); id. at 53–54 ( “[T]he Framers would not have

allowed admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify.”) (emphasis added). So there seems to be a question

of whether confrontation demands the opportunity to cross-examine the declarant who

has been called by the prosecution, or merely that the declarant is available at trial to be

called and (cross-)examined. This case requires an answer to this question. The one

Supreme Court case discussing this aspect of Crawford that was decided prior to the

finality of Peak’s conviction does not dispel the uncertainty. See Davis, 547 U.S. at 822

(“In Crawford, we held that [the Confrontation Clause] bars admission of testimonial

statements of a witness who did not appear at trial . . . .”) (emphasis added) (citation and

internal quotation marks omitted). The Supreme Court simply had not, at the time

Peak’s conviction became final, clearly held that the ability to cross-examine

immediately is required by the Confrontation Clause.

It is not unreasonable to believe, as did at least three justices on the Kentucky

Supreme Court, as well as the trial-court judge, that confrontation only requires that a

declarant be made available in the courtroom for a criminal defendant to call during his

own case. It can be argued that this ability is equivalent to cross-examination. The

defendant can, for example, employ leading questions in questioning a hostile witness

on direct examination just as he could in cross-examination. FED. R. EVID. 611(c);

United States v. Hughes, 308 F. App’x 882, 890 (6th Cir. 2009). More basically, the

defendant has had the ability to confront the witness face-to-face, and to question the

witness about the testimonial statement while the witness is under oath.
No. 09-5977 Peak v. Webb Page 12

12See, e.g., Greene v. Fisher, 132 S. Ct. 38, 43–44 (2011) (“[T]he purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions . . . and not as a means of error

correction.”) (internal quotation marks omitted); Bobby v. Dixon, No. 10-1540, 132 S. Ct. 26, 27 (2011)

(per curiam) (“Because it is not clear that the Ohio Supreme Court erred . . . so transparently that no

fairminded jurist could agree with [its] decision, the Sixth Circuit’s judgment [granting habeas relief] must

be reversed.”); Harrington, 131 S. Ct. 770, 786 (2011) (“A state court’s determination that a claim lacks

merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the

state court’s decision.”) (internal quotation marks omitted).

We are not convinced that the opportunity to call a witness, as opposed to the

opportunity to immediately cross-examine a witness, satisfies the Confrontation Clause.

However, we are convinced that there is a possibility for fairminded disagreement on the

issue, and under clear, and increasingly strident,12 Supreme Court precedent, that is all

that is required to affirm. 

III

Because there is room for reasoned agreement with the conclusion of the

Kentucky Supreme Court that, in the circumstances of this case, the Confrontation

Clause does not require the opportunity to cross-examine as soon as an out-of-court

statement is introduced, we respect the strictures of AEDPA and AFFIRM the denial of

Peak’s habeas petition.
No. 09-5977 Peak v. Webb Page 13

_____________________

CONCURRENCE

_____________________

MERRITT, Circuit Judge, concurring. I agree with Judge Boggs’ opinion in the

case on the AEDPA problem because in the recent case of Greene v. Fisher, 132 S. Ct.

38 (2011), a unanimous Supreme Court observed that the AEDPA standard “is difficult

to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice system, and not as

a means of error correction.” (Internal quotation marks omitted.) This interpretation of

the AEDPA standard appears to grant much more deference to state decisions when we

review them under AEDPA than the earlier interpretation in Williams v. Taylor, which

was worded in terms of “unreasonable” interpretation or application and not in terms of

reversing only “extreme malfunctions in the state criminal justice systems.” The

Supreme Court has itself in the past commented on the obscure nature of the language

of AEDPA, Lindh v. Murphy, 521 U.S. 320, 336 (1997). Court decisions have varied

significantly in interpreting this unclear text between greater and lesser deference to state

court decisions. The unanimous decision in Greene and other recent cases have now

come to an interpretation of AEDPA that gives much greater deference to state court

interpretations of the federal constitution.

I also agree with Judge Boggs’ suggestion on the merits of the confrontation

question: it is doubtful that a witness who appears in court ready for the defendant’s

examination can be said to meet the “unavailable” element of the test under the Sixth

Amendment.
No. 09-5977 Peak v. Webb Page 14

________________

DISSENT

________________

CLAY, Circuit Judge, dissenting. Michael Peak’s Sixth Amendment

Confrontation Clause right was irrefutably violated when his co-conspirator’s

testimonial, hearsay confession accusing Peak as the triggerman and ringleader of a

robbery and murder was played to the jury in lieu of the co-conspirator’s live testimony.

The majority holds that while Peak “may well have” suffered a constitutional violation,

the Kentucky Supreme Court plurality decision ruling otherwise was not contrary to

clearly established federal law. (Maj. Op. at 2.) Contrary to the majority’s holding, if

the plain language of the Sixth Amendment is not clearly established federal law, then

nothing is. For this reason and the reasons that follow, I dissent.

I. Factual Background

In 2000, Peak was tried in Kentucky state court together with his two alleged coconspirators, Patrick Meeks and Leann Bearden, for the 1998 robbery and murder of a

drug dealer later identified as Miguel Garcia. Peak, Meeks, and Bearden became

suspects in the murder when Mike Cissell, who was facing criminal charges on an

unrelated matter, sought leniency by informing the authorities that he had information

as to Garcia’s unsolved murder. Cissell agreed to testify against Peak, Meeks, and

Bearden in exchange for a special deal with the prosecution relating to his involvement

in the crime. Cissell admitted to helping the three dispose of Garcia’s body but

expressly denied assisting them in the murder. Peak, Bearden, and Meeks all pleaded

not guilty.

Prior to trial, Bearden entered into an agreement with the prosecution to

withdraw the possibility of her being subjected to a death penalty sentence, in exchange

for waiving her Fifth Amendment right against self-incrimination and for testifying

against her alleged co-conspirators. At trial, Bearden contended that she introduced

Garcia to Peak and Meeks, and she knew of the plan to murder Garcia and rob him of

a large amount of cocaine. However, although she provided substantial assistance in
No. 09-5977 Peak v. Webb Page 15

facilitating the crime, she did not anticipate that the crime would actually occur.

Importantly, Bearden testified that she did not witness the murder. While she assumed

that Peak killed Garcia, she admitted that she did not know whether Peak was even

present when Garcia was murdered and that she saw only Meeks, and not Peak, with the

firearm.

Peak and Meeks both invoked their Fifth Amendment right against selfincrimination. However, Meeks had previously submitted himself to police interrogation

regarding the murder, and the interrogation was recorded. The prosecution planned to

play the recorded interrogation to the jury at the trial; although containing hearsay, it

could be played against Meeks as permitted by Kentucky Rule of Evidence 801A(b)(1),

as a party admission.

During the recorded interrogation, Meeks admitted that he was involved in the

robbery and murder and offered details related to the planning and execution of the

crimes. However, he expressly denied that he shot Garcia, and instead accused Peak of

being the triggerman and the ringleader of the conspiracy.

When the prosecution sought to admit into evidence Meeks’ recorded

interrogation, Meeks and Peak both objected. Meeks asserted that his statements were

made under duress and fatigue, given that the interrogation took place in the middle of

the night (between 1:26 am and 2:03am, and between 6:08am and 6:42am). Meeks also

contended that the tactics used by the investigators were coercive and that the

interrogation continued despite his request for an attorney. He thus argued that his

statements should be excluded as unreliable since they were not made knowingly,

intelligently, or voluntarily. The trial court judge rejected Meeks’ argument.

After Meeks failed to prevent the admission of the interrogation, Peak argued that

the recorded interrogation could not be played in totum against him, because many of

Meeks’ confessions contemporaneously shifted the blame to Peak, and the admission of

these statements would violate Peak’s rights under the Sixth Amendment, as interpreted

by Bruton v. United States, 391 U.S. 123 (1968), and Crawford v. Washington, 541 U.S.

36 (2004). The trial court agreed with Peak that playing the recorded interrogation
No. 09-5977 Peak v. Webb Page 16

would violate Peak’s constitutional rights. The trial court therefore required that the

prosecution redact all portions of Meeks’ recorded statement that implicated Peak,

before the tape could be admitted.

In accordance with the trial court’s mandate, the prosecution redacted the

portions of the interrogation where Meeks accused Peak of assisting in the crime.

However, Meeks objected to the redacted version of the tape, because he felt that the

redacted version framed Meeks as the only person involved in the murder and thus

assigned him greater culpability than he felt he deserved. Eventually, the prosecution

and Meeks struck a deal wherein the prosecution would admit and play the entire

unredacted version of Meeks’ interrogation if Meeks would waive his Fifth Amendment

right against self-incrimination. Although this would resolve Meeks’ concerns, Peak

reminded the trial court that the redaction had been ordered for Peak’s benefit, not for

Meeks, so Meeks’ waiver of his Fifth Amendment right did not cure the violation of

Peak’s Sixth Amendment right. Despite Peak’s numerous objections and motions to

exclude the unredacted statement, for a new trial, or for bifurcation of the trials, the trial

court allowed admission of the unredacted interrogation implicating Peak and refused

to sever the trials.

Once the unredacted interrogation was deemed admissible, the trial court

permitted the prosecution to play the tape, including Meeks’ statements implicating

Peak, without the prosecution calling Meeks to the stand. Although Meeks had waived

his Fifth Amendment right, the prosecution never called Meeks to the stand, none of the

defendants called Meeks, and Meeks decided not to testify on his own behalf, in

conformity with his original plan. Each time the tape was played, Peak continued to

object to the violation of his rights under the Sixth Amendment Confrontation Clause,

Bruton, and Crawford. The trial court denied each of Peak’s objections.

Meeks’ recorded statements implicating Peak were played to the jury a total of

three times. The tape was first played to the jury during the prosecution’s direct

examination of a detective. The prosecution played the tape a second time during its

closing statement. Finally, during jury deliberations, the jury requested to hear the
No. 09-5977 Peak v. Webb Page 17

recorded statements again. The jury was brought back into the courtroom and once more

listened to Meeks’ confession implicating Peak. This was the only piece of evidence

that the jury requested to hear or see again.

Meeks’ recorded statements were crucial to the prosecution’s case against Peak.

First, Meeks was the only purported eyewitness to the murder, and thus he provided the

sole eyewitness testimony that it was Peak, and not he, who shot Garcia. Although

Bearden and Cissell gave testimony implying that Peak was the shooter, neither of them

witnessed the shooting and the credibility of both was impeached throughout the trial.

Second, the prosecution did not admit any physical or forensic evidence whatsoever

linking the murder to Peak or Peak to the location where the events allegedly transpired.

Furthermore, the versions of events offered by the witnesses differed greatly, especially

between Bearden’s testimony and Meeks’ recorded statements.

The prosecution itself was aware that the admission of Meeks’ recorded

statements against Peak was the primary, if not only, means of obtaining a conviction

against Peak. During its closing statement, the prosecution argued that Meeks’ recorded

statements against Peak were by themselves enough to convict Peak of the charged

crimes. The prosecution also advised the jury that the fact that Peak did not call Meeks

to the stand to question Meeks’ recorded statements meant that Peak attested to the truth

of the recorded statements.

Ultimately, the jury assigned the greatest culpability to Peak. It convicted Peak

of intentional murder, and convicted Meeks of the lesser charge of wanton murder. Peak

and Meeks received the same sentences with respect to their murder convictions:

imprisonment for life, without the possibility of parole for 25 years. However, Meeks

was only sentenced to ten years for conspiracy to commit murder, whereas Peak was

sentenced to twenty years on that charge. They were also sentenced to 20 years for the

robbery charge and 5 years for the tampering charge, with all sentences running

concurrently.

Peak and Meeks appealed their convictions directly to the Kentucky Supreme

Court. Among other issues, Meeks argued that his recorded interrogation should have
No. 09-5977 Peak v. Webb Page 18

been excluded from evidence as unreliable because his statements therein were not made

knowingly, intelligently, or voluntarily and because he requested a lawyer. The

Kentucky Supreme Court rejected Meeks’ arguments.

Peak appealed the violation of his Confrontation Clause right. A plurality of

justices denied his appeal on that basis, finding no Confrontation Clause error and stating

that even if there was an error, it was likely harmless. The dissenting justices disagreed

and found an egregious violation of Peak’s Confrontation Clause right. This federal

habeas action ensued.

II. The Sixth Amendment’s Confrontation Clause

A. The Purposes of the Confrontation Clause and Heightened

Bruton Concerns

Our Confrontation Clause, penned under the Sixth Amendment to the United

States Constitution, guarantees that accusations against a criminal defendant can be

admitted at trial only once the accusers take the stand and confront the defendant. U.S.

Const. amend. VI. This rule stretches back to seventeenth century English law and even

to the Roman empire. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (“[The Confrontation

Clause] comes to us on faded parchment, with a lineage that traces back to the

beginnings of Western legal culture.” (internal citation and quotation marks omitted));

see Crawford, 541 U.S. at 43–45; White v. Illinois, 502 U.S. 346, 361–62 (1992)

(Thomas, J., concurring); Mattox v. United States, 156 U.S. 237 (1895). “The main and

essential purpose of confrontation is to secure for the opponent the opportunity of crossexamination.” Davis v. Alaska, 415 U.S. 308, 315–16 (1974) (internal citation and

quotation marks omitted). The right of a defendant to be confronted with his accuser is

“not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but

for the purpose of cross-examination, which cannot be had except by the direct and

personal putting of questions and obtaining immediate answers.” Id. at 316 (internal

citation and quotation marks omitted). The Confrontation Clause was designed to root

out “the principal evil” of using “ex parte examinations as evidence against the

accused.” Michigan v. Bryant, 131 S. Ct. 1143, 1152 (2011) (quoting Crawford, 541
No. 09-5977 Peak v. Webb Page 19

U.S. at 50) (internal quotation marks omitted). “The preference for live testimony . . .

is because of the importance of cross-examination, ‘the greatest legal engine ever

invented for the discovery of truth.’” White, 502 U.S. at 356 (quoting California v.

Green, 399 US. 149, 158 (1970)). Specifically, confrontation “impress[es] [the witness]

with the seriousness of the matter and guard[s] against the lie by the possibility of a

penalty for perjury” as well as “permits the jury that is to decide the defendant’s fate to

observe the demeanor of the witness in making his statement, thus aiding the jury in

assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845–46 (1990) (quoting

Mattox, 156 U.S. at 242, and Green, 399 U.S. at 158) (internal alterations and quotation

marks omitted); see also Davis, 415 U.S. at 316 (noting that cross examination is the

“principal means by which the believability of a witness and the truth of his testimony

are tested”).

In the landmark case of Bruton v. United States, the Supreme Court held that the

credibility and truth-telling concerns of the Confrontation Clause are heightened when

the evidence that the prosecution seeks to admit is a testimonial, hearsay accusation

against the defendant, uttered by a co-conspirator in the course of a confession. 391 U.S.

at 132 (holding that “[t]his prejudice cannot be dispelled by cross-examination if the codefendant does not take the stand” (internal citation omitted)); see also Crawford, 541

U.S. at 63–65 (refining the scope of the Confrontation Clause but reiterating concerns

in Bruton related to the admission of a co-conspirator’s accusation); Lilly v. Virginia,

527 U.S. 116, 132 (1999) (“[T]he truthfinding function of the Confrontation Clause is

uniquely threatened when an accomplice’s confession is sought to be introduced against

a criminal defendant without the benefit of cross-examination.” (quoting Lee v. Illinois,

476 U.S. 530, 541 (1986))); Akins v. Warren, 362 F. App’x 508, 512 (6th Cir. 2010) (“A

defendant’s admissions, implicating his or her co-defendants, cannot be introduced at

a joint trial unless the confessing defendant takes the stand.”). The rule of “Bruton

makes clear that the protections of the Confrontation Clause are at their zenith whenever

. . . the prosecution offers into evidence a non-testifying hearsay declarant’s confession

that names the accused as his partner in crime.” Jones v. Basinger, 635 F.3d 1030, 1049

(7th Cir. 2011). This is so because “when one person accuses another of a crime under
No. 09-5977 Peak v. Webb Page 20

circumstances in which the declarant stands to gain by inculpating another, the

accusation is presumptively suspect and must be subjected to the scrutiny of crossexamination.” Lilly, 527 U.S. at 132 (quoting Lee, 476 U.S. at 541).

B. The Plain Language of the Sixth Amendment Places with the

Prosecution the Burden of Calling Accusers to the Stand

1. The Confrontation Clause Grants Defendants a

“Right” and Not a Mere “Privilege”

The Sixth Amendment commands:

In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.

U.S. Const. amend. VI. The language drafted by our founding fathers and unchanged

since 1791 could not be clearer. The right is conferred in the passive voice: a defendant

has a right “to be confronted with” his accusers, not merely the privilege “to confront”

his accusers. See Coy, 487 U.S. at 1017. “The Confrontation Clause . . . language,

employing the passive voice, imposes a burden of production on the prosecution, not on

the defense.” Thomas v. United States, 914 A.2d 1, 16 (D.C. 2006). “The defendant’s

rights to be informed of the charges against him, to receive a speedy and public trial, to

be tried by a jury, to be assisted by counsel, and to be confronted with adverse witnesses

are designed to restrain the prosecution by regulating the procedures by which it

presents its case against the accused.” Taylor v. Illinois, 484 U.S. 400, 410, 410 n.14

(1988) (emphasis added, internal citation omitted) (comparing this with the Compulsory

Process Clause, which, “on the other hand[,] . . . operates exclusively at the defendant’s

initiative and provides him with affirmative aid in presenting his defense”); see

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2718 (2011) (holding that the prosecution

bears the burden to preserve a defendant’s Confrontation Clause rights).

Because a defendant has the right to be confronted with his accusers, the

prosecution consequently has the burden to confront the defendant. This requires that

the prosecution subpoena the witness, that the prosecution put that accusing witness on

the stand, and that the witness actually testify. It is not the defendant’s obligation to
No. 09-5977 Peak v. Webb Page 21

present the prosecution’s witnesses or to cure the prosecution’s errors. Bullcoming, 131

S. Ct. at 2718; Taylor, 484 U.S. at 410. Recently, the Supreme Court affirmed this basic

premise in Melendez-Diaz v. Massachusetts, reiterating that the Confrontation Clause

requires the prosecution to subpoena an available affiant if it chooses to introduce that

affiant’s ex parte testimonial statement against a defendant. 129 S. Ct. 2527, 2533, 2542

(2009). Although the defendant also could have subpoenaed the affiant, the Court held

that the defendant did not carry that burden:

Converting the prosecution’s duty under the Confrontation Clause into

the defendant’s privilege under state law of the Compulsory Process

Clause shifts the consequences of adverse-witness no-shows from the

State to the accused. More fundamentally, the Confrontation Clause

imposes a burden on the prosecution to present its witnesses, not on the

defendant to bring those adverse witnesses into court.

Id. at 2540. I find no compelling distinction between the present case and MelendezDiaz. Bringing the witness to the courthouse would mean little if the witness was not

also obliged to take the stand, just as putting the witness on the stand means little if the

witness lawfully invokes a right or privilege not to testify.

While Melendez-Diaz post-dated the Kentucky Supreme Court decision at issue

here, it did not provide a new or novel interpretation of the Confrontation Clause. See

Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (citing Lockyer v. Andrade, 538 U.S.

63, 71–72 (2003)) (explaining that the reasonableness of a state court decision is to be

measured only against rules that existed at the time the decision was issued). Instead,

Melendez-Diaz performed a “rather straightforward application of [the] holding in

Crawford” and merely confirms the plain language of the Sixth Amendment and its

undisturbed interpretation by the Supreme Court. 129 S. Ct. at 2533. It has always been

clear that the Sixth Amendment is not satisfied where the prosecution presents its

evidence via ex parte testimonials and waits for the defendant to subpoena the witness

(as in Melendez-Diaz) or to call the witness to the stand (as is the case here). The

Confrontation Clause requires that the prosecution call its available witnesses to the

stand to face the defendant, rather than simply making its witnesses available for the

defendant to call.
No. 09-5977 Peak v. Webb Page 22

2. The Crawford Exception

Our Supreme Court has heretofore held that where the prosecution does not put

an accuser on the stand to directly accuse the defendant, it may admit a testimonial,

hearsay accusation against the defendant under only one exception: where the declarant

is unavailable, but the defendant has had a prior opportunity to cross-examine the

declarant with regard to the accusation. See Bryant, 131 S. Ct. at 1153 (“We therefore

limited the Confrontation Clause’s reach to testimonial statements and held that in order

for testimonial evidence to be admissible, the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity for cross-examination.”

(internal quotation marks and citation omitted)); Crawford, 541 U.S. at 59. 

The Supreme Court has never held that the prosecution may admit a testimonial,

hearsay accusation against the defendant if the declarant is seated in a pew in the back

of the courtroom, but is allegedly willing to testify. The Supreme Court has similarly

never held that a defendant waives his Confrontation Clause right if he fails to call an

available accuser to the stand and cure the prosecution’s violation of his Confrontation

Clause right. There is but one way for the prosecution to admit into evidence a

testimonial, hearsay accusation against a defendant: establish unavailability of the

declarant and show that the defendant had a prior opportunity to cross-examine that

witness.

Moreover, if the defendant does not have the burden to bring the prosecution’s

witnesses to the stand, the defendant cannot be deemed to have waived his rights for

failing to do so. The defendant does not have the duty to cure the prosecution’s

Confrontation Clause errors. Importantly, a defendant is deemed to have waived his

Confrontation Clause right by pleading guilty, stipulating to the admission of evidence,

failing to preserve error, or procuring the unavailability of a witness. See Illinois v.

Allen, 397 U.S. 337, 342–43 (1970); Boykin v. Alabama, 395 U.S. 238, 243 (1969);

United States v. Chun Ya Cheung, 350 F. App’x 19, 21–22 (6th Cir. 2009); United States

v. Johnson, 440 F. 3d 832, 845–46 (6th Cir. 2006). If a defendant must call the

prosecution’s witness, he would be faced with a “catch-22,” wherein he waives his
No. 09-5977 Peak v. Webb Page 23

1

If the witness is called by the prosecution and the defendant’s cross-examination followed, the

testimony would be presented with some immediacy, satisfying the Confrontation Clause requirement.

See Davis, 415 U.S. at 316 (holding that the Confrontation Clause requires “cross-examination, which

cannot be had except by the direct and personal putting of questions and obtaining immediate answers”

(internal citation and quotation marks omitted)). The majority states that there is no requirement that the

ability to cross-examine be immediate, (see Maj. Op. at 11); however, it is notable that the majority has

not cited any legal authority to support that contention.

Confrontation Clause right if he fails to call the prosecution’s witness, but he also waives

his Confrontation Clause right if he calls the witness.

3. Constitutional Prerequisites Support the Plain

Language of the Confrontation Clause

As a matter of policy, if we permit the prosecution to introduce accusations

merely by having potential witnesses present in the courtroom rather than by producing

them as actual witnesses for purposes of confrontation, the prosecution has only to gain

and the defendant has only to lose. In such a situation, a defendant will be forced to

make a choice. On one hand, he could call the prosecution’s witness as a hostile witness

and be permitted to ask leading questions, but he would not have had the opportunity to

immediately cross-examine the witness following the prosecution’s introduction of the

accusation,1

 and he would risk the possibility of eliciting unfavorable testimony that

would not otherwise have been presented. In the alternative, the defendant could decide

to avoid these risks by not calling the witness and forgoing the opportunity to question

him altogether. In many instances, the defendant will find that calling the witness is not

worth the risk, as Peak did. 

Under the prosecution’s approach, the prosecution is provided with an

overwhelming advantage. If the defendant calls the witness, the prosecution avoids its

responsibility under the Confrontation Clause of producing the witness by putting him

on the stand and is alleviated of its burden to provide direct examination. However, if

the defendant chooses not to call the witness, only the version of the facts that the

prosecution finds helpful to its case is introduced; there is no compliance with the

requirements of the Confrontation Clause, and the prosecution avoids the possibility that

the witness will be effectively cross-examined or change his story in response to cross-
No. 09-5977 Peak v. Webb Page 24

examination, and thereby jeopardize the prosecution’s case. The prosecution also avoids

the responsibility of being the proponent of the witness’ testimony.

Indeed, in this case, the prosecution likely did not call Meeks to the stand

because Meeks disputed the reliability and veracity of his recorded admissions and

accusations and would likely discredit the prosecution’s evidence. By purporting to

resolve the Confrontation Clause violation against Peak by merely requiring Meeks to

waive his Fifth Amendment right but not put him on the stand, the trial court permitted

the prosecution to introduce all of the testimonial, hearsay evidence that it hoped to

admit but avoid the introduction of any contradictory evidence. The prosecution should

not be permitted to resort to such opportunistic manipulation. “The Confrontation

Clause may make the prosecution of criminals more burdensome, but that is equally true

of the right to trial by jury and the privilege against self-incrimination.” Melendez-Diaz,

129 S. Ct. at 2540.

4. Right Against Self-Incrimination

A defendant’s Fifth Amendment right against self-incrimination may also be

implicated by the defendant being forced to call a witness who is expected to incriminate

the defendant in order for the defendant to avail himself of his Confrontation Clause

right. Because the defendant would be the party calling the witness, the defendant could

easily be placed in the untenable position, in front of the jury, of appearing to be the

proponent of the witness’ testimony which ends up incriminating the defendant. United

States v. Hubbell, 530 U.S. 27, 36–38 (2000) (discussing right against selfincrimination); Schmerber v. California, 384 U.S. 757, 761 (1966). Neither the right

against self-incrimination nor the Confrontation Clause right is subordinate to the

other—such that a defendant can be forced to relinquish one right in order to assert the

other. See Simmons v. United States, 390 U.S. 377, 394 (finding a defendant’s

compelled election between his Fourth and Fifth Amendment rights to be “intolerable”);

see also McGautha v. California, 402 U.S. 183, 213 (1971) (holding that “the threshold

question is whether compelling the election [between constitutional rights] impairs to

an appreciable extent any of the policies behind the rights involved”). 
No. 09-5977 Peak v. Webb Page 25

III. AEDPA and the Kentucky Plurality Decision

A. AEDPA, Generally

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.

§ 2254, permits us to grant habeas relief only where a state court judgment “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

“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).

Clearly established federal law “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

v. Taylor, 529 U.S. 362, 412 (2000). A decision is contrary to clearly established federal

law if “the state court arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court decides a case differently than this Court

has on a set of materially indistinguishable facts.” Id. at 412–13. An unreasonable

application of clearly established federal law occurs where “the state court identifies the

correct governing legal principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. at 413; Harrington v.

Richter, 131 S. Ct. 770, 785 (2011). We ask whether “fairminded jurists could disagree”

as to the decision. Harrington, 131 S. Ct. 786 (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). We are reminded that an unreasonable application of law is

different from an incorrect application of law. Williams, 529 U.S. at 410; Harrington,

131 S. Ct. 785.

B. Habeas Relief Under AEDPA is Warranted in Peak’s Case

Peak’s Confrontation Clause right was unquestionably violated. At Peak’s trial,

the prosecution admitted into evidence over Peak’s objection—and played three

times—his non-testifying, co-conspirator’s testimonial hearsay confession implicating

Peak as the triggerman. Meeks never took the stand, and the exception in Crawford did

not apply because Meeks was available and Peak had not had a prior opportunity to
No. 09-5977 Peak v. Webb Page 26

cross-examine him. This constitutional violation is clear under the simplest, most

straightforward application of the Confrontation Clause and Supreme Court

jurisprudence, as outlined above. See Lilly, 527 U.S. at 131 (“[T]he admission of a

nontestifying accomplice’s confession, which shifted responsibility and implicated the

defendant as the triggerman, ‘plainly denie[s] the defendant the right of crossexamination secured by the Confrontation Clause.’” (quoting Douglas v. Alabama, 380

U.S. 415, 419 (1965)) (internal alteration omitted)).

Despite this incontrovertible violation, the Kentucky Supreme Court plurality

ruled that Peak’s Confrontation Clause rights were not violated. The Kentucky Supreme

Court thus unreasonably applied the Sixth Amendment to Peak’s case and unreasonably

extended a legal principle that permits the use of testimonial hearsay when the

prosecution is unable to call its witnesses to the stand, see Crawford, 541 U.S. at 42–43,

to situations where the prosecution is able to do so but chooses not to. It also permitted

the admission of a non-testifying accomplice’s confession implicating Peak, contrary to

the rule in Bruton, 391 U.S. at 132. Habeas relief is therefore warranted under the

standards set forth in § 2254(d)(1), as interpreted by Williams and Harrington, and their

progeny.

Also indicative of the Kentucky Supreme Court’s unreasonable application of the

Confrontation Clause in Peak’s case is the fact that the Kentucky Supreme Court itself

recently reconsidered the issue and came to the opposite conclusion. See Coleman v.

Commonwealth, No. 2008-SC-72-MR, 2009 Ky. Unpub. LEXIS 128 (Ky. Oct. 29,

2009). The Kentucky Supreme Court majority in Coleman correctly held that there is

a Confrontation Clause violation where the prosecution admits witnesses’ untested

accusations against a defendant without calling the witnesses to the stand, despite the

fact that “the witnesses [are] present in the courthouse under the prosecution’s

subpoena” and are able and allegedly willing to testify. Id. at *10–11. The Kentucky

Supreme Court went so far as to hold that “[t]he only possible conclusion” in this

situation is that the defendant’s “[Confrontation Clause] rights were violated.” Id. at

*12. While the fact that the relevant Coleman and Peak factual scenarios are nearly
No. 09-5977 Peak v. Webb Page 27

identical but yielded different results does not necessarily establish unreasonableness

under § 2254(d)(2), it does “raise[] a red flag to possible ‘extreme malfunctions in the

state criminal justice system.’” Rice v. White, 660 F.3d 242, 255 (6th Cir. 2011).

Finally, one of our sister circuits recently applied Crawford to a habeas claim

nearly identical to Peak’s claim. See Jones v. Basinger, 635 F.3d 1030, 1041 (7th Cir.

2011). In Jones, during a defendant’s trial for robbery and murder, the prosecution

admitted a testimonial, hearsay accusation of a declarant who had been subpoenaed by

the prosecution and was available to testify, without calling that witness to the stand.

Id. The court found “no reasonable room for doubt” that the Confrontation Clause was

violated by this conduct and that habeas relief was warranted due to the state court’s

clear error, “beyond any possibility for fairminded disagreement,” in permitting such a

violation. Id. at 1043, 1052.

In sum, the Kentucky Supreme Court plurality was objectively unreasonable in

its application of the Sixth Amendment, and its decision was contrary to clearly

established federal law.

C. Specific Problems with the Majority’s Acceptance of the

Kentucky Supreme Court Plurality’s Decision

Despite the centuries old rule that the prosecution must put its witnesses on the

stand, the majority here suggests that it was not unreasonable for a Kentucky Supreme

Court plurality to interpret the Confrontation Clause to mean that so long as the

prosecution’s witnesses are sitting in a pew in the back of the courtroom and allege that

they are willing to testify, the defendant’s right to be confronted with his accusers is

satisfied—even if the prosecution has admitted those witnesses’ untested, out-of-court

accusations into evidence without calling them to the stand. The majority would grant

the defendant the mere privilege of calling the prosecution’s witnesses to the stand, on

his own initiative, rather than the right, in the language of the Sixth Amendment, “to be

confronted with” those witnesses. This is in direct contradiction to the plain language

of the Sixth Amendment and our Supreme Court’s jurisprudence. See Section II, supra.
No. 09-5977 Peak v. Webb Page 28

The majority endeavors to explain its irrational decision. Specifically, the

majority believes that the Kentucky Supreme Court plurality’s decision was not

unreasonable, because although “some points [of] Crawford seem[] to equate

confrontation with cross-examination[,] . . . Crawford also contains language that

suggests that confrontation requires only that the witness be made available to be called

at trial, not that the witness be put on the stand for immediate cross-examination.” (Maj.

Op. at 10–11.) This latter proposition is flatly incorrect. Although Supreme Court

jurisprudence includes language such as “appears at trial,” see Crawford, 541 U.S. at

53–54, 59; Davis, 547 U.S. at 822 n.1 (drawing language from Crawford), this language,

standing alone and as used by the majority, is ripped from its context. The language at

issue in Crawford is as follows: “the Framers would not have allowed admission of

testimonial statements of a witness who did not appear at trial unless he was unavailable

to testify, and the defendant had had a prior opportunity for cross-examination,”

Crawford, 541 U.S. at 53–54, “[the English common law] conditioned admissibility of

an absent witness’s examination on unavailability and a prior opportunity to crossexamine,” id. at 54, and “[t]estimonial statements of witnesses absent from trial have

been admitted only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine,” id. at 59. The crucial difference between the

circumstances of the present case and the holding in Crawford is that in each of these

statements, the Supreme Court frames the Crawford test as applying to situations where

the prosecution was unable to call the witnesses to the stand, not situations where the

prosecution was able to call the witness to the stand but simply chose not to, as in the

instant case.

Furthermore, as discussed above, the plain meaning of “appear at trial,” in the

Confrontation Clause context, must mean that the accusers are brought to the stand by

the prosecution and not merely that they are in the courtroom. For a witness to be in the

courtroom but not testify—or for a witness take the stand but refuse to testify—would

render meaningless the design of the Confrontation Clause to prevent the evils of the use

of ex parte examinations against the defendant. Bryant, 131 S. Ct. 1152. It would fail

to address the need for the witness to be sworn in and impressed with the seriousness of
No. 09-5977 Peak v. Webb Page 29

the matter, the defendant’s cross-examination, and the jury’s ability to decide the

witness’ credibility first-hand. Green, 399 U.S. at 158; Craig, 497 U.S. at 845–46.

Moreover, the defendant cannot be required to cure the prosecution’s error of failing to

call the witness to the stand by the defendant calling the witness as a hostile witness and

asking leading questions, because the Supreme Court has interpreted the plain language

of the Confrontation Clause as providing defendant with a right and not a privilege.

Taylor, 484 U.S. at 410.

The other allegedly problematic language in Crawford, which the Kentucky

Supreme Court plurality explicitly relied on in making its decision, is similarly taken out

of context. Footnote nine of Justice Scalia’s majority opinion provides, “When the

declarant appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements. . . . The Clause does not

bar admission of a statement so long as the declarant is present at trial to defend or

explain it.” Crawford, 541 U.S. at 59 n.9. That footnote was part of a discussion of

scenarios where, again, a witness was actually put on the stand by the prosecution to

testify, but the reliability of his testimony was at issue. Thus, the “present at trial”

language did not provide a new interpretation of the Sixth Amendment that permits the

admission of testimonial hearsay when the declarant is merely seated in the courtroom

but not brought to the stand. The reasoning of the Kentucky Supreme Court’s dissent

on this matter is persuasive:

[In that footnote], Justice Scalia was responding to concerns expressed

in Chief Justice Rehnquist’s dissenting opinion that the reliability of

some out-of-court statements “cannot be replicated even if the declarant

testifies to the same matters in court.” . . . Obviously, both Justice Scalia

and Chief Justice Rehnquist were assuming that the declarant would

testify, but the Chief Justice believed that the prior statement might be

more reliable than the in-court testimony.

Peak v. Commonwealth of Kentucky, 197 S.W.3d 536, 550–51 (Ky. 2006) (Cooper, J.,

concurring in part and dissenting in part). It was thus patently unreasonable for the

Kentucky justices in the plurality to use the “present at trial” language in footnote nine

to reject the plain language of the Sixth Amendment. 
No. 09-5977 Peak v. Webb Page 30

IV. The Majority and Concurrence Misread Recent Supreme Court

Cases as Increasing the Level of Deference Under AEDPA

While it is clear that Peak has demonstrated his right to habeas relief under even

the strictest interpretation of AEDPA, it is also the case that the two judges in the

majority here incorrectly interpreted Harrington and two subsequent cases, Greene v.

Fisher, 132 S. Ct. 38 (2011), and Bobby v. Dixon, 132 S. Ct. 26 (2011) (per curiam), as

increasing AEDPA’s deference to state courts beyond that originally required by

Williams.

In Williams, the Supreme Court interpreted the language of § 2254(d) and

outlined an objective reasonableness standard. 529 U.S. at 409. It noted that an

“unreasonable” application of federal law is different from an “incorrect” application of

federal law. Id. at 410. As discussed supra, the Supreme Court in Williams further

explained § 2254(d)(1) by defining its terms. After Williams, we granted habeas relief

in a number of situations, finding various state courts’ decisions to be objectively

unreasonable because they were contrary to or involved an unreasonable application of

clearly established federal law. See, e.g., Rice, 660 F.3d at 242.

Harrington involved another application of AEDPA by the Supreme Court.

131 S. Ct. at 783. The Harrington Court cited Williams for the interpretation of

§ 2254(d) and decided that when a state court denies relief unaccompanied by

explanation, the reasonableness standard in § 2254(d) still applies to habeas review. Id.

at 785. In the course of explaining its decision, the Court further cited language that

relief under AEDPA should be granted “where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with this Court's precedents.” Id.

at 786; see also Bobby, 132 S. Ct. at 27 (same).

The majority interprets Harrington’s reference to “fairminded jurists,” see 131 S.

Ct. at 786, as setting a higher standard than the objective reasonableness standard

provided in Williams. But the “fairminded jurists” term originates from Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004), which itself applies Williams’ objective

unreasonableness standard. 541 U.S. at 665–66. Importantly, this Court has explained,
No. 09-5977 Peak v. Webb Page 31

without contradiction by the Supreme Court, that the “fairminded jurist” language is just

another way of phrasing the objective unreasonableness standard. Wiggins v. Parker,

423 F. App’x 534, 537 (6th Cir. 2011) (“Only if the state court’s decision was

‘objectively unreasonable,’ Sanborn v. Parker, 629 F.3d 554, 577 (6th Cir. 2010), only

if in other words no ‘fairminded jurists’ could resolve the case the way the state courts

did, Harrington v. Richter, 131 S. Ct. 770, 786 (2011), may we grant the writ.”). We

have already considered and applied AEDPA following Harrington and have continued

to apply Williams’ objective unreasonableness standard of review and level of deference.

See Rice, 660 F.3d at 249–51, 254. Our Circuit has not been alone in doing so. See, e.g.,

Jones, 635 F.3d at 1044; Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011); Elmore v.

Ozmint, 661 F.3d 783 (4th Cir. 2011); Guzman v. Sec’y, Dep’t of Corrections, 663 F.3d

1336 (11th Cir. 2011); Blystone v. Horn, 664 F.3d 397 (3rd Cir. 2011). Finally, given

the number of AEDPA cases decided by the Supreme Court in recent years, it is safe to

assume that had the Supreme Court sought to raise the Williams level of deference to be

given to state court judgments, it would have said so. See, e.g., Howes v. Fields, No. 10-

680, ___ U.S. ___, slip op. at 4 (Feb. 21, 2012); Cullen, 131 S. Ct. at 1399; Harrington,

131 S. Ct. at 785; Thaler v. Haynes, 130 S. Ct. 1171, 1173–74 (2010); Wood v. Allen,

130 S. Ct. 841, 849 (2010); Smith v. Spisak, 130 S. Ct. 676, 681 (2010). In none of these

cases does the Supreme Court state that Williams is overruled; indeed, in each of these

decisions, the Supreme Court continues to cite Williams’ mandates under AEDPA. 

The majority’s misunderstanding of the effect of Harrington and other recent

cases affects its analysis. In erroneously interpreting Harrington’s “fairminded jurists”

language as setting a new, higher standard for AEDPA review, the majority holds that

because “four such fairminded justices of the Kentucky Supreme Court did disagree”

that the Confrontation Clause was not violated, we are “compelled” to grant deference

under AEDPA. (Maj. Op. at 2.) In other words, because we are to presume that the

justices are fairminded, the majority reasons, we must conclude that their decisions are

similarly fairminded.
No. 09-5977 Peak v. Webb Page 32

2

That language reads, “We have said that [the § 2254(d)] standard of ‘contrary to, or involving

an unreasonable application of, clearly established Federal law’ is ‘difficult to meet,’ because the purpose

of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the

state criminal justice systems,’ and not as a means of error correction.” Greene, 132 S. Ct. at 43 (quoting

Harrington, 131 S. Ct. at 786) (internal alteration and quotation marks omitted).

The majority erroneously defers to the Kentucky Supreme Court justices’ status

as state court judges, rather than their legal analysis. Though the AEDPA standard is

“difficult to meet,” Harrington, 131 S. Ct. at 786, the majority’s interpretation makes the

standard impossible to meet, as no habeas claim would reach our Court unless a jurist

presumed to be fairminded had not already once decided the issue against the defendant.

Contrary to the majority’s argument, the “fairminded jurist” references in Harrington

and Bobby cannot be understood to suggest a subjective reasonableness test or, worse,

complete deference to state court judges. The level of deference advocated by the

majority subverts rather than illuminates the Supreme Court’s standard inasmuch as it

would essentially render the Great Writ of Habeas Corpus completely meaningless. As

we recently held, “[d]espite the great deference accorded state court adjudications of

federal claims, AEDPA, of course, ‘stops short of imposing a complete bar on federal

court relitigation of claims already rejected in state proceedings.’” Rice, 660 F.3d at 251

(quoting Harrington, 131 S. Ct. at 786). “Federal courts retain statutory and

constitutional authority, absent suspension of the writ, to remedy detentions by state

authorities that violate federal law, so long as the procedural demands of AEDPA are

satisfied.” Rice, 660 F.3d at 251.

Finally, the concurrence fixates upon the “extreme malfunctions” language in

Greene.

2

 (Con. Op. at 13). That language is also offered in Harrington and was lifted

from Justice Stevens’ concurrence in Jackson v. Virginia, 443 U.S. 307, 322 n.5 (1979).

It was already in existence in Supreme Court jurisprudence when Williams was decided

and does not alter Williams’ objective unreasonableness standard. See Rice, 660 F.3d

at 251, 255. Nor does it set some new, higher standard, as the concurrence appears to

suggest. In any event, the state court’s interpretation of the Confrontation Clause in this

case was indeed an extreme malfunction. See Jones, 63 F.3d at 643.
No. 09-5977 Peak v. Webb Page 33

In conclusion, the Kentucky Supreme Court plurality’s decision to uphold the

admission of Meeks’ ex parte accusation against Peak, without the prosecution calling

Meeks to the stand despite its ability to do so, is both contrary to and an unreasonable

application of the Sixth Amendment and Supreme Court jurisprudence, see 28 U.S.C.

§ 2254(d)(1), because our Constitution has always required the prosecution to bring

accusers to the stand to face the accused. U.S. Const. amend. VI. The majority has also

misread recent AEDPA jurisprudence to raise the bar for federal habeas relief to an

impossible height. I would therefore reverse and grant the writ.

Given the United States Supreme Court’s steadfast protection of our country’s

Sixth Amendment Confrontation Clause right, I am hopeful that the Supreme Court will

consider this matter on petition for writ of certiorari.