RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0197p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

A NDRE S INKFIELD , Petitioner-Appellant,

v.

A NTHONY J. B RIGANO , Warden, Respondent-Appellee. X - - - -
> , - - N No. 06-3512

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 03-00082—Walter H. Rice, District Judge. Argued: January 23, 2007 Decided and Filed: May 29, 2007 Before: SILER, GIBBONS, and ROGERS, Circuit Judges.

_________________ COUNSEL
ARGUED: Darrell L. Heckman, Urbana, Ohio, for Appe llant. M. Scott Criss, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Darrell L. Heckman, Urbana, Ohio, for Appellant. Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ SILER, Circuit Judge. Andre Sinkfield appeals th e district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks relief from his state court convictions for aggravated robbery, attempted a ggravated murder, aggravated murder, and having a weapon while under disability. We AFFIRM the de nial of Sinkfield’s habeas petition because the decision of the Ohio courts to exclude the potentially exculpatory testimony of two witnesses was neither contrary to, nor an unreasonable application of, federal law.

I. In 1996, James Brown met Jay Washington, Bre ndan Byrdsong, and Bill Vance at Vance’s house in Dayton, Ohio to smoke marijuana. Shortly after Brown arrived, two black males knocked on the front door. The two men were later identif ied by Brown as Jeffrey Stevens and Sinkfield. Although Vance greeted Stevens when he came thr ough the door, the encounter soon turned violent. Stevens and Sinkfield, both visibly armed, de manded that Brown, Washington, Byrdsong, and

1No. 06-3512 Sinkfield v. Brigano Page 2

1 A firearm specification and specification related to Si nkfield’s prior felony convictions were included on each count. Vance get on the floor because they were being robbed. Stevens took money from Brown and retreated to a rear room. He returned with a pillow, placed it against Vance’s head, and attempted to shoot Vance through the pillow. When his firearm malfunctioned, he took Sinkfield’s gun from him and fired a single shot through the pillow, striking Vance in the back of the head. Brown jumped from the ground and began wrestli ng with Stevens and Sinkfield. During the scuffle, Washington and Byrdsong fled the apartment. Brown broke free and attempted to flee as well, but was shot in the back as he reached the front door. Stevens and Sinkfield fled the apartment and were apparently accompanied by Washington. Byrdsong ran next door to the house of James Townsend, Vance’s brother. Together, Byrdsong and Townsend ran down the street, called 911, and returned to Vance’s house where they found Brown on the ground bleeding and Vance dead. During the ensuing investigation, Brown identified Stevens as the shooter and Sinkfield as his accomplice in a subsequent photospread lineup. A Montgomery County grand jury indicted both Sinkfield and Stevens. Sinkfield was charged w ith three counts of aggravated robbery, Ohio Rev. Code. Ann. (“O.R.C.”) § 2911.01(A)(1); one count of attempted aggravated murder, O.R.C. §§ 2903.01(B), 2903.02(A); one count of aggravated murder, O.R.C. § 2903.01(B); and one count of having a weapon while under disability, O.R.C. § 2923.12(A)(2). 1
At trial, Sinkfield attempted to introduce testimony from two witnesses, Rod Garrett and Garrett’s girlfriend, Karleia Gray. Sinkfield’s c ounsel proffered that Garrett would testify that minutes after Vance’s murder, he received a phone call from Stevens, who, in a shaking voice, told him that he and Henry Watson had just murdered Vance. This testimony was offered as an excited utterance, an admission against interest, and as a matter of constitutional law pursuant to Chambers v. Mississippi , 410 U.S. 284 (1973). The trial court permitte d Garrett to testify that Stevens admitted that he murdered Vance, but excluded any reference that Stevens made to Watson’s role in the crime. Sinkfield’s counsel also proffered that Gray would testify that immediately after Garrett hung up with Stevens (after Stevens’s alleged confession), Garrett called Gray and repeated Stevens’s statement that he and Watson had just murdered Vance. Defense counsel offered this testimony as an excited utterance on top of an excited utteran ce, and as a matter of constitutional law pursuant to Chambers . The trial court excluded this testimony as well. Sinkfield was convicted on all counts and sentenced to life imprisonment for aggravated murder, ten to twenty-five years for aggravated r obbery and attempted aggravated murder, and three to five years for having a weapon while under di sability. In 2001, the Se cond District Court of Appeals for Montgomery County, Ohio affirmed Sinkfield’s convictions. In 2002, the Supreme Court of Ohio dismissed his app eal because it failed to raise a substantial constitutional question. The United States Supreme Court denied Sinkfield’s petition for writ of certiorari. In 2003, Sinkfield filed a petition for a writ of ha beas corpus in the federal district court, alleging that exclusion of Garrett and Gray’s potentially exculpatory testimony was an unreasonable application of clearly es tablished federal law – Chambers . Sinkfield’s petition was referred to a magistrate judge, who found that the decision of th e Court of Appeals of Ohio was an objectively reasonable application of Chambers . The district court adopted the magistrate judge’s report andNo. 06-3512 Sinkfield v. Brigano Page 3

2 The district court stated: While this Court, were it sitting as the trier of fact , or, for that matter, as a member of an appellate panel on direct appeal, might have decided the issue differently, the undersigned is simply unable to say that the rationale and decision of the state court of appeals was “an unreasonable application of clearly established federal law as determinedby the Supreme Court of the United States.” recommendation and denied Sinkfield’s petition, agreei ng that the state court of appeals’ decision was not an unreasonable application of Chambers

. 2

II.
The Antiterrorism and Effective Death Pe nalty Act of 1996 (“AEDPA”) applies to Sinkfield’s habeas petition because the petition was filed after AEDPA’s effective date. See 28 U.S.C. § 2254. Under AEDPA, we “may not grant habeas relief for a state prisoner unless the state court adjudication of his claim ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United States.’” Stuart v. Wilson , 442 F.3d 506, 514-15 (6th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1)). The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have separate meanings. Under the “contrary to” clause, a federal court may issue the writ if “the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone , 535 U.S. 685, 694 (2002) (citing Williams v. Taylor , 529 U.S. 362, 405-06 (2000)). Under the “unreasonable application” clause, a federal court may grant relief if “the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the fact s of the particular case.” Id . (citing Williams , 529 U.S. at 407-08). An unreasonable application of federal law is onethat is “objectively unreasonable” and not merely incorrect. Johnson v. Luoma , 425 F.3d 318, 324 (6th Cir. 2005). State court factual findings and legal determin ations are afforded heightened respect under AEDPA. Spisak v. Mitchell , 465 F.3d 684, 691 (6th Cir. 2006). “A determination of a factual issue made by a state court is presumed to be correct , and the Defendant has the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id . (citing 28 U.S.C. § 2254(e)(1)). Because federal habeas corpus is available only to remedy federal constitutional violations,

see 28 U.S.C. § 2254(a), our review is limited to deciding whether exclusion of the testimony violated the United States Constitution. Sinkfieldargues that the exclusion of this testimony violated his due process and compulsory process rights because it was an unreasonable application of Chambers . We disagree.

In Chambers , the defendant attempted to introduce three separate statements of another man, Gabe McDonald, in which he admitted responsibility for the murder with which the defendant was charged. The trial court refused to allow the testimony of three witnesses to whom McDonald confessed to committing the murder because the statements were hearsay. The Supreme Court acknowledged that McDonald’s statements were technically hearsay that did not fall into an established exception, but found that, under the facts and circumstances of that case, the statements were required by the Constitution because they were made “under circumstances that provided considerable assurance of their reliability.” Chambers , 410 U.S. at 300. Critical to the Court’s holding was that the statements were: (1) spontane ously made to close friends shortly after the murder; (2) corroborated by other sufficiently str ong evidence; and (3) undeniably self-incriminatoryNo. 06-3512 Sinkfield v. Brigano Page 4

and against his interest because he would not havebenefitted by disclosing his role in the murder. Id . at 300-01. In affirming Sinkfield’s convictions, the Second District Court of Appeals of Ohio found that Chambers shared some similarity to Sinkfield’s case because the defendants in both cases presented the defense that another person committed the crime for which they were charged. The court noted that Stevens’s statement inculpating himself and Watson met the first element of Chambers because it was made soon after the murder. However, the court never unequivocally stated the result of its analysis of the second Chambers factor. While there was evidence corroborating Watson’s involvement in the crime, the court found it difficult to overturn the trial court’s decision to discredit the testimony because it was in the best position to determine the credibility of that testimony. Finally, with respect to the third Chambers factor, the court noted that unlike Chambers , where the statement was wholly self-inculpatory, Stevens’s statement inculpated himself and another party, Watson.
The court turned to Williamson v. United States , 512 U.S. 594 (1994), for guidance in determining what effect Stevens’s reference to Watson’s role had on the reliability of his confession. In Williamson , the Court analyzed the admissibility of a declarant’s statement that inculpated himself as well as the defendant, under Federal Ru le of Evidence 804(b)(3). The Court noted that some statements inculpating the declarant and another party are not always truly self-inculpatory because the statements are instead intended to shift blame or curry favor. Id . at 601. Thus, the proper inquiry is “whether the statement was suffici ently against the declarant’s penal interest ‘that a reasonable person in the declarant’s position woul d not have made the statement unless believing it to be true,’ and this question can only be answ ered in light of all the surrounding circumstances.” Id . at 603-04 (quoting Fed. R. Evid. 804(b)(3)) (footnote omitted). Even though the statement in Williamsoninculpated the declarant and the defendant, whereas the statement in this case implicated the declarant and another party, the Ohio court nonetheless applied Williamson and found that Stevens’s statement did not carry the same indicia of reliability as a truly self-inculpatory statement. Conse quently, the court found no constitutional violation in excluding Garrett’s and Gray’s testimony. This decision was neither contrary to, nor an unreasonable application of Chambers for two reasons. First, one of the factors the Supreme Court relied on in finding that the statements were constitutionally required in Chambers , the existence of sufficiently strong corroborating evidence, is not present in this case. Consistent with hi s defense that Watson, and nothimself, was Stevens’s accomplice, Sinkfield introduced corroborating evidence, including: testimony from Charles Sinkfield, the defendant’s brother, and Tony Hill, in which both stated that Watson apologized to Keith DeWitt for getting hi m involved in his and Watson’s situation; testimony that Watson and Stevens were long time friends and former fello w inmates; testimony linking Watson and Stevens together shortly before the murders; Watson’s si milar physical appearance to Sinkfield; and Hill’s testimony that Brown told the prosecutor that he c ould not testify against Sinkfield because he was not the perpetrator. While this evidence was certainly corroborative, its credibility was very much in dispute. As the Court of Appeals of Ohio noted, “After revi ewing the evidence in this case, we find that there was some testimony that was so incredible that it defied belief. Unfortunately, much of the incredible testimony was elicited from defense witnesses.” Sinkfield acknowledged the credibility problems of some of his supporting testimony. In Chambers , the corroborating evidence consisted of a sworn confession that was later repudiated, eyewitness testimony, testimony that McDonald was seen with a gun following the shooting, and testimony that McDonald owned a gun. However, there is no mention of any credibility issues surrounding the corroborating evidence similar to those in this case.No. 06-3512 Sinkfield v. Brigano Page 5

Second, and most significantly, although Chambers involved the confession of a party not on trial, that confession did not implicate a third party. Under AEDPA, Sinkf ield must point to an unreasonable application of clearly established federal law, as determined by Supreme Court decisions. See Williams , 529 U.S. at 412. However, as the Court noted in Montana v. Egelhoff
, 518 U.S. 37 (1996), the holding in Chambers is extremely limited:
Chambers was an exercise in highly case-specific error correction. . . . Thus, the holding of Chambers – if one can be discerned from such a fact-intensive case – is certainly not that a defendant is denied “a fair opportunity to defend against the State’s accusations” whenever “critical evidence” favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.
Id. at 52-53 (citations omitted).
Thus, Chambers does not compel the conclusion that exclusion of the testimony of Garrett and Gray resulted in the denial of Sinkfield’s due process and compulsory process rights. If any analogy to Chambers may be made, it is that the exclusion of the testimony was not a mechanical and unyielding application of the rules of evidence. Instead, the state court carefully evaluated the factors outlined in Chambers and concluded that the requisite indicia of reliability were not present. Its application of Chambers was neither contrary to, nor an unreasonable application of, clearly established federal law.

AFFIRMED.