[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 12247 Non

- Argument Calendar

_________________________
D.C. Docket No. 1:07

- cv - 00797

- RWS
BILLY RAY ROBERTSON, Petitioner

- Appellant,
v ersus WARDEN, Respondent

- Appellee.

________________________ Appeal from the United States District Court For the Northern District of Georgia

_________________________ (February 7, 2013 ) BEFORE TJOFLAT, PRYOR and EDMONDSON, Circuit Judges.

Case: 12-12247 Date Filed: 02/07/2013 Page: 1 of 32 PER CURIAM:

Billy Ray Robertson, a Georgia inmate convicted of felony murder and other charges in 1993, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that the admission, during his state court trial, of statements gi ven by a co

- conspirator to a confidential informant years after the completion of the conspiracy violated his rights under the Confrontation Clause. He argues that his co

- conspirator’s statements introduced at his trial in 1995 violated his rights under t he Confrontation Clause because they were testimonial in the light of recent Supreme Court precedent. The Sixth Amendment protects a criminal defendant’s right to confront the witnesses against him. U.S. Const. amend VI. The Supreme Court explained in C rawfor d v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the Sixth Amendment prohibits the introduction of out

- of

- court testimonial statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross

- examine the declarant. Crawford , 541 U.S. at 68, 124 S.Ct. at 1374. The Crawford opinion cited Bourjaily as an example of a case where non

- testimonial statements were properly admitted. Id . at 58, 124 S.Ct. at 1368. In Bourjaily , the Supreme Court determined that a co

- conspirator’s

Case: 12-12247 Date Filed: 02/07/2013 Page: 2 of 33 unwitting statements to an undercover agent were admissible at trial even though the defendant did not have an opportunity to cross

- examine the co

- conspirator. Bourjaily v. United States , 483 U.S. 171, 181

- 84, 107 S.Ct. 2275, 2782

- 83, 97 L.Ed.2d 144 (1987). In United States v. Underwood , 446 F.3d 1340 (11 th Cir. 2006), we wrote that a statement is testimonial if it was made under circumstances which would lead an objective witness reasonably to believe that the sta tement would be available for use at a later trial. Id . at 1347. Finding that a declarant made statements to a confidential informant without the reasonable belief “that his statement would be available for use at a later trial,” we concluded that the
st atements by the co

- conspirator to the confidential informant were not testimonial. Id . at 1347

- 1348. Applying Crawford and conducting a de novo review, * we reach the same conclusion as the district court. The pertinent statements in this case

-- whether or not they met Georgia’s hearsay exception

-- were not testimonial. Accordingly, they were admissible under the Confrontation Clause.
AFFIRMED.

* The standard of review (that is, whether deference should be given to the pertinent state decision) to be applied in this case might be debatable. So, we use a de novo standard to give Petitioner

-- for discussion sake

-- his best position. A court can reject a petition using d e novo review because any such claim must also fail under deferential review. Berghuis v. Thompkins , 130 S.Ct. 2250, 2265, 176 L.Ed.2d 1098 (2010); Allen v. Sec’y, Fla. Dep’t of Corr ., 611 F.3d 740, 753 (11 th Cir. 2010).

Case: 12-12247 Date Filed: 02/07/2013 Page: 3 of 3