                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 14a0159p.06

                         UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


 REGINALD WILLIAMS,                                            ┐
                                    Petitioner-Appellant,      │
                                                               │
                                                               │         No. 13-1463
            v.                                                 │
                                                                >
                                                               │
 CATHERINE S. BAUMAN, Warden,                                  │
                          Respondent-Appellee.                 │
                                                               ┘
                               Appeal from the United States District Court
                               for the Eastern District of Michigan at Flint.
                         No. 4:09-cv-14793—Mark A. Goldsmith, District Judge.
                                         Argued: June 26, 2014
                                   Decided and Filed: July 21, 2014

                 Before: SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge.*

                                           _________________

                                                COUNSEL

ARGUED: Christine A. Pagac, STATE APPELLATE DEFENDER OFFICE, Detroit,
Michigan, for Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Christine A. Pagac, STATE
APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellant. John S. Pallas, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.




        *
          The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio,
sitting by designation.




                                                      1
No. 13-1463             Williams v. Bauman                                       Page 2

                                       _________________

                                            OPINION
                                       _________________

       GRIFFIN, Circuit Judge. Reginald Williams, who was convicted in Michigan state court
for the fatal shooting of the proprietor of a video store during an attempted robbery, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition. Williams’s petition alleged (1) that
Williams’s rights under the Confrontation Clause were violated by the introduction of statements
given at two separate preliminary hearings by an eyewitness to the shooting who died before
Williams’s trial, (2) that Williams’s trial counsel was ineffective for failing to object to the
introduction of the statements in question, and (3) that the witness’s identification of Williams as
the shooter was due to an impermissibly suggestive lineup. The district court denied the petition,
concluding that the Michigan state court was not unreasonable in holding that Williams’s
arguments had no merit. We affirm.

                                                 I.

       A robbery went wrong in a Detroit video store in October 2005. When police officers
arrived at the scene, they found store proprietor Waad Shaba lying dead behind the counter with
a gun in his hand, shot through the right temple and left knee. David Banks was one of two
witnesses to the robbery and shooting. He informed the officers that two young men had entered
the store, that one of them—who Banks said was wearing a dark shirt and a black hat—had
pointed a gun at Shaba and demanded money, and that shots rang out moments later. Video
surveillance footage confirmed that two individuals—one of whom was wielding a gun and was
wearing a beige or khaki-colored shirt—had entered the store.

       Within an hour of the shooting, Thomas Coleman returned to his mother’s house, shot in
the hand and the back of the leg, and wearing different clothes than when he had left home
earlier that day. Coleman, who was a friend of Williams, was accompanied by another young
man whom Coleman’s mother later testified that she did not recognize but knew was not
Williams. Coleman told his mother that he had been shot during an argument at a local gas
station, and his mother brought him to the hospital for treatment.
No. 13-1463            Williams v. Bauman                                      Page 3

       The officers investigating the video-store shooting learned that Coleman was at the
hospital and photographed his injuries. Coleman was tested for gunshot residue, but none was
found on him.

       Several streets away from the crime scene, the officers recovered a backpack containing a
beige or khaki short-sleeved shirt, black jeans, and a black baseball cap. Gunshot residue was
found on the shirt in a pattern that suggested that the wearer had fired a gun at chest level. The
shirt was also spattered with blood, which DNA testing identified as belonging to Coleman with
a 1-in-7.663 quadrillion chance that it came from someone else. A DNA profile obtained from
the jeans that were in the backpack was identified as belonging to Williams with a 1-in-1.372
billion chance that it matched that of someone else, and a DNA profile lifted from the baseball
cap also matched Williams, with a 1-in-29.47 quadrillion possibility that it belonged to a
different contributor. Coleman was excluded as a contributor to the material on the jeans and the
baseball cap.

       Coleman was charged in state court, and his preliminary hearing was held on October 19,
2005. Banks, who had witnessed the shooting, testified at Coleman’s hearing that he could not
identify the man who had come into the store with the gunman but that he would be able to
identify the gunman “if he were dressed like he was before.”

       Williams was arrested the next day. After he was brought to the local precinct, officers
conducted a live lineup of five people, one of whom was Williams. Williams and one other
member of the lineup—who was several inches taller than Williams—were wearing dark shirts.
Banks was brought in to view the lineup, and “within seconds,” he identified Williams as the
gunman at the video store where Shaba was killed.

       Banks also testified at Williams’s preliminary hearing, which was held in early
November 2005. At the beginning of the hearing, counsel for Williams noted that he had just
been made aware of Banks’s testimony at Coleman’s preliminary hearing and requested a
continuance so that he could obtain a transcript of Banks’s prior testimony. The trial court
denied the motion for a continuance, noting that Banks was in poor health. At the hearing,
Banks identified Williams as the gunman who had entered the video store. When asked about
his previous identification of Williams in the lineup, Banks testified that he had identified
No. 13-1463             Williams v. Bauman                                         Page 4

Williams as the gunman “[n]ot because of a dark shirt but because of an ID of his face, even
though he did have a dark shirt on.”

       Banks died before Williams’s and Coleman’s joint trial. Without objection, Banks’s
testimony from both preliminary hearings was read to Williams’s jury.               The prosecution
presented several lay and expert witnesses testifying to the above facts, and both defendants were
convicted. Williams, who was found guilty of felony murder and possession of a firearm during
the commission of a felony, received a life sentence.

       Williams filed a direct appeal, arguing in pertinent part that the introduction of Banks’s
testimony at the preliminary hearings violated Williams’s rights under the Confrontation Clause,
that his attorney was ineffective for failing to object to the introduction of the testimony, and that
the lineup in which Williams participated was unduly suggestive and thereby violated the due
process clause.    The Michigan Court of Appeals denied relief, concluding that Williams’s
constitutional rights were not violated and that even if they were, the errors were harmless. See
People v. Williams, 2008 WL 239648 (Mich. Ct. App. Jan. 29, 2008). The Michigan Supreme
Court denied leave to appeal.

       Williams then filed a 28 U.S.C. § 2254 petition in federal district court, alleging the same
claims he asserted in state court. The district court agreed, in part, with Williams by concluding
that the admission of Banks’s testimony at Coleman’s preliminary hearing violated Williams’s
confrontation rights because “Williams did not have any opportunity to cross-examine Banks at
Coleman’s preliminary examination.”        Nevertheless, the district court held that Williams’s
claims for relief had no merit, given the reasonableness of the state court’s determination that
any constitutional errors were harmless.       The district court denied Williams’s petition and
granted a certificate of appealability on the claims at issue. Williams appeals.

                                                 II.

       On appeal, Williams reasserts the three arguments that he made in the state and district
courts. We review these claims in light of the substantial deference owed to the state court’s
decision. Section 2254(d) restricts our authority to remedy state-court error, permitting habeas
corpus relief to a state prisoner only where there is an “extreme malfunction[ ]” in the state
No. 13-1463             Williams v. Bauman                                      Page 5

criminal justice process rather than serving as “a substitute for ordinary error correction through
appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citation omitted). The statute thus
provides that a state prisoner’s § 2254 petition may not be granted unless the state court’s
adjudication of his claims on the merits either

       (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 presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has repeatedly instructed that a state court’s resolution
of an issue is not necessarily unreasonable, even if it is incorrect.         “[A]n unreasonable
application of [the Supreme Court’s] holdings must be objectively unreasonable, not merely
wrong; even clear error will not suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(internal quotation marks omitted). In other words, even if we are convinced that the petitioner’s
claim has merit, it does not necessarily follow that “the state court must have been unreasonable
in rejecting it.” Harrington, 131 S. Ct. at 786. Instead, the petitioner “must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 786–87.

                                                  III.

       First, Williams argues that his confrontation rights were violated by the admission at trial
of Banks’s prior testimony at both Williams’s preliminary hearing and that of his codefendant
Coleman. In this regard, the Supreme Court has clarified that the Confrontation Clause “bars
‘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.’”
Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting Crawford v. Washington, 541 U.S. 36,
53–54 (2004)). The parties do not dispute that Banks’s testimony at the preliminary hearings
was testimonial, nor that he was unavailable to testify at trial due to his death. See id. at 822
(defining “testimonial” statements); Crawford, 541 U.S. at 68 (noting that testimony at a
preliminary hearing is “testimonial”). The core dispute, therefore, is whether the state court
No. 13-1463            Williams v. Bauman                                      Page 6

unreasonably determined that Williams had a prior “opportunity” to cross-examine Banks in the
manner contemplated by the Confrontation Clause.

                                               A.

       The state court did not come to an unreasonable conclusion of law when it decided that
Williams’s confrontation rights were not violated by the admission of the statements that Banks
made at Williams’s own preliminary hearing. Williams, after all, was able to cross-examine
Banks’s statements at that hearing. Arguing that his opportunity to cross-examine Banks was
nevertheless constitutionally deficient, Williams asserts that the Confrontation Clause requires
that the defendant have an “adequate” opportunity to cross-examine witnesses, relying for this
adjective on two of the Supreme Court’s later descriptions of its core holding in Mattox v. United
States, 156 U.S. 237, 242–43 (1895). See Crawford, 541 U.S. at 57; United States v. Owens,
484 U.S. 554, 557 (1988). But Williams has failed to identify any Supreme Court precedent
supporting his contention that his opportunity to cross-examine Banks at his own preliminary
hearing was inadequate to satisfy the rigors of the Confrontation Clause.          See Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012) (observing that appellate court precedent does not
satisfy § 2254(d)’s requirement that a state-court error violate “clearly established Federal law,
as determined by the Supreme Court”).

       Despite Williams’s suggestion that his preliminary hearing categorically did not afford
him an adequate opportunity to cross-examine Banks due to the relatively limited purpose of the
proceeding, this court has recently observed that “there is some question whether a preliminary
hearing necessarily offers an adequate prior opportunity for cross-examination for Confrontation
Clause purposes.” Al-Timimi v. Jackson, 379 F. App’x 435, 437 (6th Cir. 2010). See also
Vasquez v. Jones, 496 F.3d 564, 577 & n.11 (6th Cir. 2007). If there is room for reasonable
debate on the issue, the state court’s decision to align itself with one side of the argument is
necessarily beyond this court’s power to remedy under § 2254, even if it turns out to be wrong.
See Woodall, 134 S. Ct. at 1702.

       Williams’s backup argument is that his ability to cross-examine Banks at his own
preliminary hearing was rendered inadequate by the trial court’s refusal to continue the hearing
until he could obtain a transcript of the testimony that Banks had previously given at Coleman’s
No. 13-1463             Williams v. Bauman                                        Page 7

hearing. But both we and the Supreme Court have observed that a trial court’s denial of a
defendant’s request to access potential impeachment evidence does not necessarily violate a
defendant’s confrontation rights. See Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (refusing
to “transform the Confrontation Clause into a constitutionally compelled rule of pretrial
discovery”); Middlebrooks v. Bell, 619 F.3d 526, 542–43 (6th Cir. 2010) (finding no
unreasonable Confrontation Clause determination where the defendant was able to cross-
examine the declarant, even though the trial court refused to permit the defendant to access
potential impeachment material), vacated on other grounds sub nom. Middlebrooks v. Colson,
132 S. Ct. 1791 (2012). The impeachment evidence of which Williams was deprived in this case
was relatively insignificant, as it was substantially the same as the testimony that Banks gave at
Williams’s preliminary hearing.     Williams’s inability to access it does not suggest that an
outcome different than that in Ritchie and Middlebrooks is obviously required in this case,
meaning that the state court was not unreasonable in reaching a similar result.

       Given the dearth of Supreme Court precedent controlling the question of whether a
defendant’s confrontation rights require something more than an opportunity to cross-examine a
declarant at the defendant’s own preliminary hearing without access to desired potential
impeachment evidence, the state court’s resolution of the issue against Williams is not
susceptible to this court’s second-guessing. Woodall, 134 S. Ct. at 1702, 1705–07. At least with
respect to the admission at trial of Banks’s testimony at Williams’s own preliminary hearing,
then, the state court’s conclusion that Williams suffered no confrontation error was not
unreasonable.

                                                B.

       As the district court recognized, a more problematic confrontation issue arises with
respect to the admission at trial against Williams of Banks’s testimony at Coleman’s preliminary
hearing. The state court seems to have reasoned that Williams’s opportunity to cross-examine
Banks at Williams’s own preliminary hearing satisfied the Confrontation Clause’s cross-
examination requirement, such that the admission at trial of Banks’s testimony at Coleman’s
preliminary hearing was fair game—despite the fact that Williams was not a party to Coleman’s
hearing and in fact had little or no idea what Banks had said at it. By implication, the state
No. 13-1463                Williams v. Bauman                                   Page 8

court’s position is that the Confrontation Clause permits the introduction of out-of-court
testimonial statements against a defendant as long as the defendant was at some point able to ask
the declarant questions under oath, even in an entirely different proceeding, even if the questions
were about entirely different statements, and even if the defendant was prevented from learning
about the very testimonial statements that are subsequently sought to be introduced against him
at trial.

            It is difficult to square this reasoning with pertinent Supreme Court precedent, which
exhibits a concern not about unexamined persons but about unexamined testimony.
“[C]onfrontation,” the Supreme Court has long held, “means more than being allowed to
confront the witness physically.” Delaware v. Fensterer, 474 U.S. 15, 19 (1985) (quoting Davis
v. Alaska, 415 U.S. 308, 315 (1974)). Crawford, which demanded that a defendant have had a
prior opportunity for cross-examination before an out-of-court testimonial statement could
constitutionally be admitted against him, rooted its insistence in a testimony-specific rationale:
“[T]he Clause’s ultimate goal is to ensure reliability of evidence . . . . It commands, not that
evidence be reliable, but that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.” Crawford, 541 U.S. at 61. In other words, the Confrontation
Clause does not require an opportunity for cross-examination merely to ensure that the defendant
can at some point—perhaps in a different proceeding altogether—see the declarant in court in the
flesh. It requires cross-examination to ensure that the defendant can attack the reliability of the
particular statements that his accuser has made. See id. at 62 (“[T]he problem [with Sir Walter
Raleigh’s trial] was that the judges refused to allow Raleigh to confront [his accuser] in court,
where he could cross-examine him and try to expose his accusation as a lie.”). It is therefore
difficult to interpret Crawford’s cross-examination requirement as failing to presuppose that the
defendant has the ability to cross-examine the declarant about the out-of-court statements that are
later sought to be admitted against him. Id. at 43–50, 57–59. Indeed, that appears to be the
whole point of the rule.

            Regarding this issue, however, we need not decide whether the state court unreasonably
applied clearly established federal law as determined by the Supreme Court because a
confrontation violation, if any, was harmless.         “[W]hen a state court determines that a
No. 13-1463             Williams v. Bauman                                       Page 9

constitutional violation is harmless, a federal court may not award habeas relief under § 2254
unless the harmlessness determination itself was unreasonable.” Fry v. Pliler, 551 U.S. 112, 119
(2007). Generally, a constitutional error is harmless only if a court is “able to declare a belief
that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24
(1967). But a federal court reviewing a § 2254 petition must assess the prejudicial impact of
even a constitutional error under the harmlessness standard of Brecht v. Abrahamson, 507 U.S.
619 (1993), under which “an error requires reversal only if it ‘had substantial and injurious effect
or influence in determining the jury’s verdict.’” Id. at 631 (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)). See Fry, 551 U.S. at 121. This standard is even more difficult for a
§ 2254 petitioner to meet than a requirement that the petitioner demonstrate that the state court’s
determination of harmless constitutional error was itself unreasonable, meaning that we do not
need to formally apply “both tests (AEDPA/Chapman and Brecht)” as “the latter obviously
subsumes the former.” Fry, 551 U.S. at 120.

       The Brecht standard is not satisfied here. In determining whether a Confrontation Clause
violation was prejudicial, we reference the factors suggested in Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986), see Vasquez, 496 F.3d at 575 & n.9, which include the centrality of
the testimony to the prosecution’s case, whether the testimony was cumulative, the existence of
other evidence that materially corroborated or contradicted the testimony, the extent of cross-
examination permitted, and “the overall strength of the prosecution’s case.”          Van Arsdall,
475 U.S. at 684. As indicated, the state court reasonably concluded that the admission of
Banks’s testimony at Williams’s own preliminary hearing posed no Confrontation Clause issue,
meaning that we may not disturb the state court’s ruling that it was properly admitted at trial.
This is fatal to Williams’s assertion that any confrontation violation with respect to Banks’s other
testimony was not harmless.      As the state court noted, Banks gave substantially identical
testimony at both hearings, so the admission of the testimony from Coleman’s preliminary
hearing added little to the case against Williams. Banks’s positive identification of Williams as
the shooter, in fact, was referenced only in the testimony he gave at Williams’s preliminary
hearing, not the testimony he gave at Coleman’s preliminary hearing.           Further, the minor
inconsistencies between the statements were helpful to Williams, whose counsel highlighted
them in closing argument.
No. 13-1463             Williams v. Bauman                                      Page 10

       As a result, far from being prejudiced by the admission of the testimony that Banks had
given at Coleman’s preliminary hearing, it appears that Williams benefited to some degree from
its admission. At the very least, the admission at trial of Banks’s testimony at Williams’s
preliminary hearing rendered Banks’s testimony at Coleman’s preliminary hearing largely
redundant, bearing almost no impact on what was a strong case against Williams. See Van
Arsdall, 475 U.S. at 684. Thus, we conclude that the introduction of this testimony against
Williams—even if erroneous—did not substantially affect the verdict returned against him and
was, as a result, harmless. Brecht, 507 U.S. at 631.

                                                 C.

       Williams’s ineffective-assistance claims fare no better. As we have noted, the state court
reasonably concluded that the admission of some of Banks’s statements was not error, and the
admission of the remainder of Banks’s statements was harmless. Accordingly, it follows that the
state court reasonably concluded that Williams was not prejudiced by his counsel’s failure to
object to their admission. See Strickland v. Washington, 466 U.S. 668, 692 (1984).

                                                IV.

       Finally, Williams claims that the lineup in which he participated was so suggestive that it
violated his due process rights. He is correct that the use by the police of an identification
procedure may at times pose due process concerns—but it does so “only when law enforcement
officers use an identification procedure that is both suggestive and unnecessary.” Perry v. New
Hampshire, 132 S. Ct. 716, 724 (2012). Even then, suppression of the evidence is warranted
only if, on the totality of the circumstances, “improper police conduct created a ‘substantial
likelihood of misidentification.’” Id. (quoting Neil v. Biggers, 409 U.S. 188, 201 (1972)). The
“corrupting effect of the suggestive identification” must be weighed against factors indicating
that the eyewitness identification is reliable, including “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
No. 13-1463             Williams v. Bauman                                   Page 11

       Despite Williams’s arguments, we cannot agree with him that the state court acted
unreasonably when it determined that the eyewitness identification procedure did not violate
Williams’s due process rights.     See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)
(“[E]valuating whether a rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.”). Williams concentrates on the fact that Banks testified that the
robbery occurred quickly, that Banks was “petrified,” that Banks believed that the gunman had
been wearing a dark shirt (contrary to the videotape, which showed the gunman wearing a white
or beige shirt), that Banks testified at Coleman’s preliminary hearing that he thought that he
would be able to recognize the gunman “if he were dressed like he was before,” and that
Williams was the shorter by several inches of the two participants in the lineup who were
wearing a dark shirt.

       But Banks also testified that he was only twenty feet away from the gunman during the
attempted robbery and was able to look him full in the face. The lineup was held only two weeks
after the incident occurred. An attorney was present to ensure that it was fair, and Williams was
permitted to choose where in the lineup he wished to stand. Williams’s wardrobe was a matter
of happenstance: he was not required to wear a dark shirt at the lineup, but simply happened to
be wearing one when he was arrested. Banks, when brought in to view the lineup, identified
Williams as the gunman “within seconds.” Banks later testified that he identified Williams in the
lineup “[n]ot because of a dark shirt but because of an ID of his face, even though he did have a
dark shirt on.” Finally, DNA evidence later linked Williams to a complete set of clothes
matching those worn by the gunman, including a shirt spattered with gunshot residue and
Coleman’s blood.

       On these facts, the state court concluded that the lineup was not so impermissibly
suggestive as to cause a substantial likelihood of misidentification and that Williams was not
prejudiced by it, in any event. This eminently reasonable conclusion requires our deference
under § 2254(d).

                                                V.

       For these reasons, we affirm the judgment of the district court.
