[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-12247

Non-Argument Calendar

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D.C. Docket No. 1:07-cv-00797-RWS

BILLY RAY ROBERTSON,

Petitioner-Appellant,

versus

WARDEN,

Respondent-Appellee.

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Appeal from the United States District Court

For the Northern District of Georgia

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(February 7, 2013)

BEFORE TJOFLAT, PRYOR and EDMONDSON, Circuit Judges.

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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 given 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 the 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 

Crawford 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 

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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 (11th 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 statement 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 

statements 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 de 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 (11th Cir. 2010).

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