                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0036p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                    X
                            Petitioner-Appellant, -
 QUINN HAMILTON,
                                                     -
                                                     -
                                                     -
                                                         No. 05-5614
         v.
                                                     ,
                                                      >
 JACK MORGAN, Warden,                                -
                            Respondent-Appellee. -
                                                    N
                      Appeal from the United States District Court
                   for the Middle District of Tennessee at Nashville.
                 No. 03-00275—William J. Haynes, Jr., District Judge.
                                   Argued: January 26, 2006
                             Decided and Filed: January 24, 2007
                Before: SILER, BATCHELDER, and MOORE, Circuit Judges.
                                      _________________
                                          COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville, Tennessee,
for Appellant. David H. Findley, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee. ON BRIEF: Michael C. Holley, R. David Baker, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. David H. Findley, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellee.
         SILER, J., delivered the opinion of the court, in which BATCHELDER, J., joined. MOORE,
J. (pp. 8-14), delivered a separate dissenting opinion.
                                      _________________
                                          OPINION
                                      _________________
       SILER, Circuit Judge. Petitioner Quinn Hamilton appeals the district court’s grant of
summary judgment in favor of Respondent Warden Jack Morgan (hereinafter “the State”) on his
habeas corpus petition, pursuant to 28 U.S.C. § 2254, seeking relief from a state court conviction
for armed robbery and evading arrest. Because the decision of the Tennessee courts to allow prior
testimony of a witness deemed unavailable for trial was neither “contrary to” nor “an unreasonable
application of” federal law, we affirm the denial of Hamilton’s writ.




                                                1
No. 05-5614           Hamilton v. Morgan                                                         Page 2


                                           I. Background
        In February 1997, Quan Shelton reported to Nashville police that two men robbed him of a
gold necklace and $550 in cash. Detective Shellie Malone, investigating the crime, met with Shelton
and took descriptions of the alleged perpetrators. Using those descriptions, she generated from a
police database photographs of black males. Shelton failed to identify the older suspect but
identified juvenile Mario Woodard.
       Police subsequently arrested Woodard, who agreed to cooperate. He identified Quinn
Hamilton as the other suspect. Based on that information, Detective Malone again met with Shelton
and showed him a photographic line-up of six men, which included a photograph of Hamilton.
Shelton “immediately” identified Hamilton.
        At Hamilton’s preliminary hearing, Shelton testified that he was walking down the street
alone when two men accosted him. He stated that a younger man was on a bicycle, but that an older
man approached him, put a gun to his stomach, and removed his gold necklace. The older man then
reached into Shelton’s pockets, demanded money, and threatened to kill Shelton. Shelton had $550
in cash, which the older man took. Shelton identified Hamilton as the older man, and Woodard as
the younger. He also stated that he had joined the armed services and would be reporting for basic
training in August 1997.
        Later, at a suppression hearing, Shelton testified that, from a photographic lineup, he
identified Hamilton as the man who robbed him and that Detective Malone did nothing to indicate
Hamilton’s photograph as the man who robbed him. He further identified Hamilton in the
courtroom. Hamilton’s attorney was present at both hearings and cross-examined Shelton.
        In January 2000, a few days before Hamilton’s first trial date, the State filed a motion
seeking to declare Shelton unavailable and requesting the court to allow his prior testimony to be
admitted at trial. In support of its motion, the State filed a letter dated January 6, 2000, from Captain
Elizabeth W. Watson, Shelton’s company commander. The letter stated that Shelton was at that time
stationed in Germany, but had twice been AWOL. For that reason, Captain Watson declined to
support his attendance at Hamilton’s trial. In response to the State’s motion, the trial court ordered
a transcript of Shelton’s suppression hearing testimony to be prepared. The trial was continued until
May 22, 2000.
       On April 14, 2000, the State filed a second motion to have Shelton declared unavailable and
requesting that his prior testimony be admitted. Attached to this motion was another letter from
Captain Watson stating that Shelton would be deploying to Kosovo for six months on April 28,
2000, and that he would be unavailable for trial. The trial court granted this motion and ruled that
the State would be able to introduce Shelton’s testimony at the preliminary hearing and at the
suppression hearing as substantive evidence at Hamilton’s trial.
        Again Hamilton’s trial was continued. A few days before the new trial date of January 8,
2001, the State filed a third motion to declare Shelton unavailable. In relevant part, this motion
stated that:
        6. Around the beginning of November [2000], Mr. Shelton returned to Germany
        from Kosovo. He immediately began having discipline problems including being
        absent-without-leave.
        7. From conversations with Mr. Shelton’s commander prior to the Christmas
        holidays, the State learned that Mr. Shelton would not be allowed to travel and in
        fact, did not wish to travel.
No. 05-5614           Hamilton v. Morgan                                                          Page 3


       8. On January 2, 2001, the State learned that the situation had changed. Mr. Shelton
       was willing to travel if he could go through Atlanta, Georgia. His commander stated
       that he would be allowed to travel, but it was too late for any flights through Atlanta.
       Since that date, the State has been unable to contact Mr. Shelton.
       The State respectfully submits that Mr. Shelton is beyond the reach of Tennessee’s
       subpoena power. Only by his full cooperation and mature decisions and behavior on
       his part could the logistical problem of getting Mr. Shelton to Nashville for this trial
       be solved. Because of his location and behavior, the problem remains unsolved. The
       State of Tennessee still wishes to prosecute [the Defendant] and asks that the Court
       grant this motion.
        The State presented no documents or evidence in support of the motion. Nonetheless, the
trial court granted the State’s motion and admitted Shelton’s prior testimony at trial.
        On January 8, 2001, Hamilton was tried in Tennessee state court on four charges, including
the armed robbery of Shelton. The State introduced transcripts of Shelton’s prior testimony.
Woodard testified that he saw Hamilton holding a gun and saw him rob Shelton. Woodard testified
that he was “sure” Hamilton was the robber and denied any participation. Detective Malone testified
regarding the police investigation and the results of the photographic line-ups. The jury returned
a guilty verdict on two of the four charges - evading arrest and the armed robbery of Shelton. The
court sentenced Hamilton to seven and nineteen years, respectively, to run consecutively, for a total
sentence of twenty-six years.
        Hamilton timely appealed his armed robbery conviction, arguing that he was deprived of his
federal Sixth Amendment right of confrontation when the trial court declared Shelton unavailable
and admitted his prior testimony. The Tennessee Court of Criminal Appeals (TCCA) denied relief.
Subsequently, the Tennessee Supreme Court summarily dismissed Hamilton’s petition.
         Hamilton then filed a habeas petition under 28 U.S.C. § 2254 in the district court, raising the
same Confrontation Clause claim. The district court granted Hamilton permission to serve certain
interrogatories and requests for production on the State regarding the “unavailability” question and
later to amend the record. The district court denied the petition for habeas corpus, but it granted
Hamilton a certificate of appealability on the Confrontation Clause issue.
                                             II. Analysis
                                      A. Standard of Review
         We review the legal conclusions of the district court sitting in habeas de novo and the factual
findings of both the state trial and appellate courts for clear error. Brumley v. Wingard, 269 F.3d
629, 637-38 (6th Cir. 2001) (internal citations omitted). Because Hamilton’s habeas petition was
filed after April 24, 1996, our review is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 1996, Pub. L. No., 104-132, 110 Stat. 1214 (1996). See Calvert v. Wilson,
288 F.3d 823, 827 (6th Cir. 2002). AEDPA provides that a federal court may not grant a petition
for writ of habeas corpus unless the state court adjudication of the claim “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law” as
determined by the Supreme Court. Id.; 28 U.S.C. § 2254(d).
        The issues of the unavailability of the witness and the reasonableness of the State’s efforts
to produce the witness are parts of the Confrontation Clause under the Sixth Amendment. Although
our court does not have a published opinion on the standard of review for such a question, other
circuits have held that these questions are mixed questions of law and fact and reviewed de novo.
No. 05-5614           Hamilton v. Morgan                                                          Page 4


See, e.g., Barrett v. Asevedo, 169 F.3d 1155, 1163 (8th Cir. 1999)(en banc); McCandless v. Vaughn,
172 F.3d 255, 265 (3d Cir. 1999). We, therefore, adopt that standard.
       B. The State’s Efforts to Procure Witness Shelton for Trial Were Reasonable
        The threshold issue for consideration is Hamilton’s complaint that the State did not make a
good faith effort to obtain Shelton for trial. Hamilton primarily points to the State’s third motion
to declare Shelton unavailable, which was based on the prosecutor’s conversations with Shelton’s
commander revealing that Shelton would not be allowed to travel due to discipline problems and
that Shelton did not desire to travel, and to information developed on January 2, 2001, that Shelton
was willing to travel to the United States, but only if he were routed through Atlanta.
        The Confrontation Clause of the Sixth Amendment strives to ensure that a criminal defendant
may have a jury assess the prosecution’s witnesses “face to face.” Mattox v. United States, 156 U.S.
237, 242-43 (1895); U.S. Const. amend. VI. (“[I]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”). Thus, the prosecution may not
substitute former testimony for live testimony unless the government first demonstrates that the
witness remains unavailable for trial proceedings. Ohio v. Roberts, 448 U.S. 56, 65 (1980),
overruled on other grounds, Crawford v. Washington, 541 U.S. 36 (2004). The unavailability
exception contains two requirements. First, the exception mandates that the witness’s testimony was
given at previous judicial proceedings against the same defendant which was subject to cross-
examination by that defendant. Crawford, 541 U.S. at 54 (“[T]he common law in 1791 conditioned
admissibility of an absent witness’s examination on . . . a prior opportunity to cross-examine. The
Sixth Amendment therefore incorporates [that] limitation[].”). Second, a witness cannot be deemed
unavailable for purposes of the exception unless the government has made a good faith effort to
obtain her presence at the trial proceedings. Roberts, 448 U.S. at 74.
        Roberts further refined the good faith standard, explaining that good faith efforts are context-
specific:
       The law does not require the doing of a futile act. Thus, if no possibility of procuring
       the witness exists . . . “good faith” demands nothing of the prosecution. But if there
       is a possibility, albeit remote, that affirmative measures might produce the declarant,
       the obligation of good faith may demand their effectuation. The lengths to which a
       prosecution must go to produce a witness is a question of reasonableness. The
       ultimate question is whether the witness is unavailable despite good-faith efforts
       undertaken prior to trial to locate and present that witness. As with other evidentiary
       proponents, the prosecution bears the burden of establishing this predicate.
Id. at 74-75 (internal citations and quotations omitted).
         If the desired witness is beyond the subpoena power of the trial state but an established
procedure of voluntary cooperation exists, then the government must go to reasonable lengths to
utilize that procedure to locate, contact, and arrange to reasonably transport the witness. Barber v.
Page, 390 U.S. 719, 720 (1968), considered the constitutionality of the trial court’s admittance of
preliminary hearing testimony of a witness who at the time of trial was incarcerated in a
federal prison in Texas. The state in Barber made no efforts to procure the witness for trial after
ascertaining that he was in a federal prison outside Oklahoma, the prosecuting state. Id. at 723.
Although the previously accepted rule was that confrontation is unnecessary if a witness - outside
the jurisdiction of the trial court - could not be compelled to trial, the Court discredited that view.
Id. It noted that a federal statute grants federal courts the power to issue writs ad testificandum at
the request of state prosecutors, and that the United States Bureau of Prisons permits federal
prisoners to testify in state court criminal proceedings pursuant to writs ad testificandum issued out
No. 05-5614               Hamilton v. Morgan                                                                      Page 5


of state courts. Id. at 724. The state prosecution’s failure to pursue the witness was unreasonable,
because “the possibility of a refusal is not the equivalent of asking and receiving a rebuff.” Id.
(internal citations and quotations omitted). Thus Barber held that “a witness is not ‘unavailable’
for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial
authorities have made a good-faith effort to obtain his presence at trial.” Id. at 724-25; see also
Brumley, 269 F.3d at 641 (finding a lack of good faith where the prosecution failed to utilize the
Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings
to secure a witness housed in prison in a different state).
        If, however, the witness is beyond the subpoena power of the prosecuting state and no
established means of communication and voluntary cooperation exist for procuring the witness, the
government arguably need not even seek a rebuff. See Mancusi v. Stubbs, 408 U.S. 204 (1972). In
Mancusi, a victim who testified at the first trial left the country and became a permanent resident
of Sweden. At the second trial, the state issued a subpoena to the victim’s last known address in
Texas. Mancusi compared the availability of procedures and policies detailed in Barber allowing
state prosecutorial authorities to compel the attendance of witnesses residing in other states with the
lack of availability of such procedures for witnesses living in other countries. Id. at 212. Because
no such procedures existed, the Court stated that “Tennessee . . . was powerless to compel his
attendance . . . either through its own process or through established procedures.” Id.
        Considered in toto, the relevant evidence supports a finding of reasonableness with respect
to the prosecution’s efforts. First, Hamilton does not identify any previously established means of
procuring Shelton to testify at trial, unlike the statutory procedures available to the state in Barber
and Brumley. In contrast to the witness in Barber, Shelton was serving in the army overseas; he was
not incarcerated in a federal prison in a different state. Therefore the available statutory procedures
for securing incarcerated witnesses for trials in other states do not apply to Shelton. Moreover,
besides the “procedure” of contacting Shelton’s commanding officer in Germany and requesting
Shelton’s presence at trial, neither Hamilton nor the State identifies any predetermined policies or
procedures that the State could – or should – have utilized to bring Shelton to Tennessee for
Hamilton’s trial.
       Second, the State worked diligently to produce Shelton, right up until the time of trial. On
January 2, 2001, the prosecution learned that Shelton was willing to travel if he could go through
Atlanta, Georgia. However, Shelton’s commander advised that it was too late to1 arrange any flights
for Shelton from Germany through Atlanta in the days remaining before trial.
       Hamilton insists that the State unreasonably abandoned its efforts to arrange Shelton’s
presence after Shelton agreed to travel to the United States. He avers that rather than investigating
commercial flights and travel plans that would include a layover in Atlanta, the State “gave up.”
He argues that a number of possible explanations that the State might offer for failing to produce
Shelton at trial - inter alia, that the expense of last-minute international travel was prohibitive, that
Shelton’s condition on flying through Atlanta constituted a rejection of the State’s offer, or that the

         1
            These facts were taken from the State’s third motion to declare the witness unavailable and to use his former
testimony at trial. The dissent relates several more detailed facts, which have been discovered through the interrogatories
before the district court on the petition for a writ of habeas corpus. Although the recitation of some of the facts by the
dissent are not erroneous, they were not facts which were known to the Tennessee courts when they made their decisions.
Some of the facts which subsequently were produced in the district court through the interrogatories are of some use in
buttressing Hamilton’s case, and other facts are useful in supporting the position of the State that it proceeded in good
faith. For example, the motion to declare the witness unavailable did not relate that the prosecutor had spoken to Shelton
on January 2, 2001, although the interrogatory indicates that the prosecutor had talked to Shelton on that date. However,
the interrogatory also shows that the prosecutor attempted to reach Shelton through the rest of the week up to the time
of the trial, but was unsuccessful in doing so. Likewise, the prosecutor indicated in his interrogatory that he attempted
to reach Shelton’s commander through the rest of the week but was unable to talk to him before the trial.
No. 05-5614               Hamilton v. Morgan                                                                      Page 6


prosecutor was not responsible for the lateness of his efforts because he had been informed
previously that Shelton would not be able or willing to travel to trial - are excuses concocted to
obscure the State’s failure to take the steps necessary to protect Hamilton’s constitutional rights.
However, this argument lacks a factual basis and thus amounts to no more than mere speculation.
Indeed, the record reflects that the State did not abandon its efforts; rather, the State continued to
attempt to reach Shelton throughout  the week leading up to Hamilton’s trial but was unable to speak
with him before the trial date. 2 Moreover, the motion by the State averred that it was too late to
arrange “any flights through Atlanta” prior to trial.
         As the TCCA found, the State’s efforts here were reasonable, based in part on the steps
taken to secure Shelton months in advance of the trial. Those efforts were thwarted: first, by
Captain Watson’s refusal to permit Shelton to travel to the United States to testify due to his
previous discipline problems and absences without leave; and second, by Shelton’s deployment to
Kosovo for six months. The State’s first two motions to declare Shelton unavailable were
accompanied by letters from Shelton’s commanding officer indicating the difficulties with securing
his presence at trial. This evidence buttresses the State’s position, despite the absence of evidence
submitted to the trial court in support of its third and final motion to admit Shelton’s prior
testimony. See United States v. Sindona, 636 F.2d 792, 804 (2d Cir. 1980) (“Although it would
have been preferable to present the court with affidavits, the fact that trial counsel for the
Government presented the factual situation orally is not fatal. It is proper for the court to accept, in
its discretion, the representations of counsel with respect to the availability of a witness.”). 3
        For these reasons, the TCCA correctly concluded that the State went to reasonable lengths
to secure Shelton’s presence at Hamilton’s trial.
    C. The State Appellate Court Did Not Err in Finding the State’s Efforts Reasonable
        Hamilton next argues that the TCCA erred in ruling that the State satisfied its obligations of
good faith and reasonableness in attempting to arrange for Shelton’s trial appearance. He complains
that the TCCA summarily concluded that Shelton was unavailable because his commanding officer
asserted he would return to Germany after his tour of duty in Kosovo, and because Germany was
beyond the subpoena power of the Tennessee criminal courts. Hamilton       asserts that this conclusion
runs “contrary to” the law as established by Barber and Roberts4 because, in his view, there was an
established procedure for procuring Shelton’s voluntary cooperation. As discussed above, however,




         2
            This fact was developed through the interrogatories in the district court. The Tennessee trial court apparently
did not know that the State had continued to try to reach Shelton and his commander between January 2, 2001, and the
trial date, January 8, 2001.
         3
           The dissent correctly quotes the decision of the TCCA when it said: “Proof of the witness’s unavailability
must consist of more than the prosecutor’s own statements to the court.” Nevertheless, the TCCA considered the
prosecutor’s statements in his motion to declare the witness unavailable plus previous statements and letters which had
been filed on the prior dates on which the trial was set. It was up to the Tennessee courts to determine the type of proof
or statements required to carry the State’s burden of proof under the criteria from Ohio v. Roberts, 448 U.S. 56, 75
(1980). The dissent criticizes the TCCA for not having followed the burden of proof requirement from Roberts.
Although the TCCA did not cite that case, nevertheless, upon a full reading of the opinion, it is clear that the court
properly placed the burden on the prosecution to show the unavailability of Shelton.
         4
           In Roberts, the prosecution issued five subpoenas to the desired witness at her parents’ home, located within
the state of Ohio. 448 U.S. at 75.
No. 05-5614               Hamilton v. Morgan                                                                         Page 7


no established procedure akin to those of Barber and Roberts existed in this case.5 The prosecutor,
on his own, initiated contact with Shelton and his commanding officer in Germany to obtain their
cooperation, which was not forthcoming. Rather, the findings of the TCCA are germane to the issue
of unavailability because they relate to the absence of an established procedure for obtaining
Shelton’s cooperation. The district court properly found that the TCCA’s decision was not contrary
to nor an unreasonable application of the governing federal law, even considering the supplemental
information added to the record before the district court.
         AFFIRMED.




         5
          At oral argument, counsel for the defendant noted that the Walsh Act of 1964, 28 U.S.C. § 1783, literally
permits a United States court to order the issuance of a subpoena to a necessary witness in a foreign country:
         A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before
         it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign
         country, or requiring the production of a specified document or other thing by him, if the court finds that
         particular testimony or the production of the document or other thing by him is necessary in the interest of
         justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible
         to obtain his testimony in admissible form without his personal appearance or to obtain the production of the
         document or other thing in any other manner.
28 U.S.C. § 1783(a).
         However, the applicability of this act was not raised prior to oral argument; thus, we deem the issue waived.
See Bickel v. Korean Airlines Co., 96 F.3d 151, 153 (6th Cir. 1996) (“We normally decline to consider issues not raised
in the appellant’s opening brief.”) (internal quotations and citation omitted).
No. 05-5614           Hamilton v. Morgan                                                      Page 8


                                        _______________
                                           DISSENT
                                        _______________
         KAREN NELSON MOORE, Circuit Judge, dissenting. The key issue in this case is whether
the state trial court was justified in admitting Quan Shelton’s testimony from a preliminary hearing
and a suppression hearing because he was unavailable to testify at the January 8, 2001 trial. The
answer turns on whether the prosecutor (Bret Gunn) carried his burden of demonstrating that he
made reasonable, or “good faith,” efforts to obtain Shelton’s presence at the January 2001 trial.
Barber v. Page, 390 U.S. 719, 724-25 (1968) (“[A] witness is not ‘unavailable’ for purposes of the
. . . exception to the confrontation requirement unless the prosecutorial authorities have made a
good-faith effort to obtain his presence at trial.”).
        Although the majority opinion correctly applies the de novo standard of review to the state
court’s determinations of unavailability and reasonableness, it concludes that the prosecutor met his
burden, notwithstanding the fact that he submitted no evidence in support of his motion to declare
Shelton unavailable. Because the majority’s decision effectively eradicates the burden of proof that
the Supreme Court established, I respectfully dissent.
                    I. THE REASONABLENESS OF GUNN’S EFFORTS
        The reasonableness of a prosecutor’s efforts to procure a witness is context-dependent. As
the United States Supreme Court put it, “[I]f no possibility of procuring the witness exists (as, for
example, the witness’ intervening death), ‘good faith’ demands nothing of the prosecution. But if
there is a possibility, albeit remote, that affirmative measures might produce the declarant, the
obligation of good faith may demand their effectuation.” Ohio v. Roberts, 448 U.S. 56, 74 (1980).
See also McCandless v. Vaughn, 172 F.3d 255, 266 (3d Cir. 1999) (“Reasonableness . . . must be
evaluated with a sensitivity to the surrounding circumstances and the defendant’s interest in
confronting the absent witness.”); Cook v. McKune, 323 F.3d 825, 835 (10th Cir. 2003)
(“[E]valuation of reasonableness or good-faith effort ‘requires us to consider all the circumstances
rather than to apply a per se rule.’” (quoting Martinez v. Sullivan, 881 F.2d 921, 924 n.1 (10th Cir.
1989))). Likewise, when a witness is key to the prosecution’s case, more is demanded of the
prosecution than in cases involving the unavailability of a relatively unimportant witness. United
States v. Quinn, 901 F.2d 522, 529 (6th Cir. 1990) (citing United States v. Lynch, 499 F.2d 1011,
1022 (D.C. Cir. 1974)). Cf. Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir. 1989) (“Where the trial
court has curtailed a defendant’s cross-examination of a ‘star’ government witness . . . its ruling
must be more carefully scrutinized.”).
       The majority opinion recognizes that context is key to this inquiry, but avoids confronting
inconvenient facts that are crucial to the context in which Bret Gunn, the prosecutor, acted.
        To determine whether the prosecution’s efforts to procure Shelton’s presence at Hamilton’s
trial were reasonable, we must consider the circumstances surrounding Shelton’s absence. First, it
is vital to note that Shelton was the prosecution’s key witness for its aggravated robbery
charge—Shelton was the victim of the robbery, as well as the only witness who indicated that
Hamilton pointed a gun at him. This contextual fact mandates requiring much from the prosecution
before concluding that Shelton was, in fact, unavailable.
        Next, we must consider the facts indicating why Shelton failed to appear at the January 2001
trial. Around December 1999, the prosecution learned that Shelton, who had since joined the
military, was stationed in Germany. J.A. at 376 (State’s Jan. 7, 2000 Mot. to Declare Witness
Unavailable ¶ 1). When Gunn contacted Shelton’s commanding officer prior to the January 2000
No. 05-5614                 Hamilton v. Morgan                                                                         Page 9


trial date, Gunn learned that Shelton had been absent without leave several times, and was
considered a flight risk. Id. ¶ 2; J.A. at 438 (Letter erroneously dated Jan. 6, 1999 from Capt.
Watson). For this reason, Shelton’s commanding officer did not permit him to testify in Nashville
in January 2000. Gunn moved the court to declare Shelton unavailable for the January 2000 trial,
and to permit the prosecution to read into the trial record Shelton’s prior testimony from the
preliminary hearing and suppression hearing. J.A. at 376 (State’s Jan. 7, 2000 Mot. to Declare
Witness Unavailable ¶ 2). Gunn attached correspondence with Shelton’s commanding officer as
evidence to support the motion, which the trial court granted. See J.A. at 48-49 (Tenn. Ct. Crim.
App. Op.). Ultimately, however, the trial court continued the trial date until May 22, 2000. J.A. at
379 (State’s Apr. 19, 2000 Mot. to Declare Witness Unavailable ¶ 3).
         Gunn again contacted Shelton’s commanding officer, and again learned that Shelton would
be unavailable to testify at trial in May 2000, this time because Shelton would be deployed to
Kosovo until the fall of 2000. Id. ¶ 4. Again, Gunn moved the court to declare Shelton unavailable,
and again Gunn attached as evidence his correspondence with Shelton’s commanding officer. J.A.
at 381 (Letter dated Apr. 13, 2000 from Capt. Watson to B. Gunn). The court granted the motion,
J.A. at 383 (St. Crim. Ct. Order dated May 11, 2000), but later continued the trial date until January
8, 2001. J.A. at 385 (State’s Jan. 2, 2001 Mot. to Declare Witness Unavailable ¶ 5).
        Gunn was aware that Shelton was due to return to Germany in October 2000 and that Gunn
would have several months between Shelton’s return and the trial to procure Shelton’s attendance.
In September 2000, Gunn received word from Shelton’s commanding officer that Shelton’s
discipline problems had vanished, and that Shelton “was being considered for some type of
commendation.” J.A. at 433-34 (Gunn’s Response to Interrogatory No. 9). Yet Gunn had only one
conversation with either Shelton or his commanding officer between Shelton’s return from Kosovo
and Christmas. J.A. at 430 (Gunn’s Response to Interrogatory No. 5). During this conversation,
Gunn learned that Shelton was neither willing, nor permitted by his commanding officer, to travel
to Nashville. J.A. at 434 (Gunn’s Response to Interrogatory No. 9). Nonetheless, Gunn contacted
Shelton again on January 2, 2001—just six days before trial—and then1 learned that Shelton was
allowed to travel and willing to do so if he could travel through Atlanta. Id. According to Gunn,
he spoke with Shelton’s commanding officer, who said it was too late to arrange for military travel2
through Atlanta. Id. The record reveals no inquiry into whether commercial flights were available.
        Given the importance of Shelton’s testimony to the State’s case, as well as the importance
of Hamilton’s Sixth Amendment right to confront adverse witnesses at trial, it is difficult to see how
these efforts could be considered reasonable. We previously have characterized more zealous efforts
as “singularly unenthusiastic.” Quinn, 901 F.2d at 528. In Quinn, the government’s attempts
included two visits to an apartment, conversations with multiple people, and a drive-by and a visit
to another house. Id. Crucial to our determination in Quinn that the prosecution’s efforts did not
amount to good faith were (1) the short time between the beginning of efforts to procure the

         1
          That Gunn bothered to call Shelton back after purportedly receiving a categorical “no” from both Shelton and
Shelton’s commanding officer indicates that the pre-Christmas rejection likely was not as categorical as the State now
claims.
         2
             I find it deeply troubling that in the State’s Third Motion to Declare Shelton Unavailable, filed on January 2,
2001, the State omitted the distinction between military flights and commercial flights. Rather than specify that Shelton’s
commanding officer noted that it was too late to arrange for a military flight through Atlanta, the State’s motion says
that Shelton’s “commander stated that . . . it was too late for any flights through Atlanta.” J.A. at 386 (emphasis added).
Not until he responded to interrogatories in this habeas proceeding did Gunn clarify that “Mr. Shelton’s commanding
officer . . . [said] that there were no military flights that could accommodate a passenger to Atlanta from Germany in the
short time remaining before trial.” J.A. at 434 (Gunn’s Response to Interrogatory No. 9) (emphasis added). Gunn’s
failure to draw this distinction in his third motion and his failure to clarify the issue in addressing the state court strongly
suggests that his efforts were less than reasonable, and that is the issue that we must decide today.
No. 05-5614               Hamilton v. Morgan                                                                 Page 10


witness’s attendance and the trial date and (2) the lack of follow-up with the people contacted. Id.
Similarly, Gunn’s attempts to procure Shelton’s attendance did not begin in earnest until just six
days before trial, and Gunn failed to follow up by looking into the availability of commercially
available flights. If the government’s efforts over the course of a week to locate the witnesses in
Quinn were unenthusiastic, the two phone calls that Gunn made to Shelton over the course of two
months were downright apathetic.
         The majority brushes away these concerns, pointing to four putative reasons for concluding
that Gunn’s efforts were reasonable. First, the majority opinion claims that Hamilton has not
identified a previously established means of procuring Shelton. Maj. Op. at 5. This claim is
dubious, as it is directly undercut by two inconvenient facts: (1) Gunn bothered to contact the
military to inquire into Shelton’s availability and (2) Shelton’s commanding officer indicated that
Shelton would not be permitted to travel to Tennessee to testify because of his prior AWOL status.
These facts cut strongly against the majority opinion’s assertion that there were “no means of
communication and voluntary cooperation” sufficient to procure an enlisted soldier serving overseas
for testimony at trial. Were the majority correct, either (1) Gunn would have been unable to initiate
such contact  or (2) the commanding officer’s reply would have been a terse, “We don’t allow
that–ever.”3
        The majority distinguishes Barber v. Page, 390 U.S. 719 (1968), on the basis that in this
case, the State lacked a statutory basis to compel Shelton’s presence at trial. In so doing, the
majority opinion conflates the “established procedures” mentioned in Mancusi v. Stubbs, 408 U.S.
204, 212 (1972), with statutory procedures. However, the Supreme Court has rejected the argument
that “because the State would have had to request an exercise of discretion on the part of federal
authorities, it was under no obligation to make such a request.” Barber, 390 U.S. at 724. Further,
no case holds that procedures are not “established” for purposes of this analysis unless they are
embodied in a statute. I can see no reason that the absence of a statutory procedure to compel
Shelton’s presence at trial should relieve the prosecution of its duty to make a good-faith effort to
bring Shelton to the trial in Nashville. As noted above, apparently Gunn also understood his duties
to be more robust. Otherwise, why would he even have tried to contact Shelton after Shelton had
gone overseas with the military?
         Next, the majority claims that the prosecution “worked diligently to produce Shelton, right
up until the time of trial.” Maj. Op. at 5. The only effort supporting the asserted diligence is a
phone call to Germany within a week of the trial date. As noted above, the record does not indicate
that the prosecution explored the availability of commercial flights, and the extent of follow-up with
Shelton or his commanding officer is unclear at best.4 I cannot accept the notion that an isolated
phone call within a week of trial constitutes diligence.
       Third, the majority opinion asserts that “the State continued to attempt to reach Shelton
throughout the week leading up to Hamilton’s trial but was unable to speak with him before the trial


         3
          Further, Captain Watson’s January 6, 2000 letter explicitly states that an established means of communication
and voluntary cooperation existed when it notes that the American Red Cross contacted her “in reference to a subpoena
from the State of Tennessee for Private Shelton to appear in court as a witness.” J.A. at 438.
         4
            In his response to interrogatories, Gunn indicated that he “continued to try and reach Mr. Shelton’s
commanding officer through the rest of the week [of January 2, 2001] but . . . was unable to talk with him again before
the trial on Monday, January 8, 2001.” J.A. at 434 (Gunn’s Response to Interrogatory No. 9). For some reason, Gunn
did not mention these efforts during the January 5, 2001 pretrial hearing, at which the trial court granted the State’s
motion to declare Shelton unavailable. J.A. at 417-25 (Pretrial Hr’g Tr.). Perhaps the efforts referred to in the
interrogatory response occurred during the weekend between Friday, January 5 and Monday, January 8. It is unclear
why this would be the case, though, as the court had already declared Shelton unavailable on January 5.
No. 05-5614               Hamilton v. Morgan                                                                   Page 11


date.” Maj. Op. at 6. As indicated previously, I am unable to find credible support for this assertion
in the record. See supra note 4.
        Finally, the majority opinion points to the prosecution’s efforts to procure Shelton’s
attendance at the January 2000 and May 2000 trial dates as evidence of reasonable efforts to bring
Shelton to the January 2001 trial. Maj. Op. at 6. The majority misconstrues the issue. At issue in
this case is the reasonableness of the prosecution’s efforts to obtain Shelton’s presence at the
January 2001 trial. While the prosecution’s efforts anent the earlier trial dates are part of the
context in which we determine the prosecution’s good faith, they cannot, in and of themselves,
establish that the prosecution’s lackluster efforts to get Shelton to testify at the January 2001 trial
were reasonable.
      Accordingly, none of the majority opinion’s proffered reasons support its conclusion that
Gunn’s efforts to protect Hamilton’s right to cross-examine Shelton were reasonable.
                                           II. HABEAS STANDARD
       Of course, erroneously concluding that the prosecution’s efforts were reasonable is of no
consequence unless the state court’s decision was contrary to clearly established Supreme Court
precedent or an unreasonable application of such precedent to the case at bar. See 28 U.S.C.
§ 2254(d)(1). In this case, the Tennessee Court of Criminal Appeals (TCCA)’s analysis was both
contrary to, and an unreasonable application of, clearly established Supreme Court precedent.
          When the TCCA considered this case, the controlling precedent was Ohio v. Roberts, 448
U.S. 56 (1980),5 which clearly requires that “the prosecution bears the burden of establishing” that
a witness is unavailable. Id. at 75. The TCCA does not clearly recognize that it is the prosecution
that has the burden of persuasion with regard to unavailability. The closest the state court comes
is its statement that “Proof of the witness’s unavailability must consist of more than the prosecutor’s
own statements to the court.” J.A. at 50 (Tenn. Ct. Crim. App. Op. at 4). In any event, it is clear
that the TCCA failed to apply the Roberts standard.
       As the majority opinion twice acknowledges, see Maj. Op. at 3, 6, the prosecution provided
no evidence—no phone records, no letter correspondence, not even an affidavit—supporting               its
motion to declare Shelton unavailable to testify at the January 8, 2001 trial.6 This, too, is a fact that
the TCCA recognized. J.A. at 50 (TCCA Op. at 4). But the TCCA affirmed the trial court’s
decision to grant the State’s motion anyway, and thus failed to place the burden of proof on the
prosecution, as Roberts requires. By failing to place the burden of proving Shelton’s unavailability
on the State, the TCCA applied a standard that is contrary to clearly established Supreme Court
precedent.


         5
           Although the Supreme Court subsequently overruled Roberts in Crawford v. Washington, 541 U.S. 36 (2004),
we apply Roberts because Crawford post-dates the TCCA’s opinion. See Brumley v. Wingard, 269 F.3d 629, 638 (6th
Cir. 2001) (“In reviewing a state court decision under [§ 2254], we look only to the Supreme Court holdings that existed
at the time of the state court’s decision.” (citing Williams v. Taylor, 529 U.S. 362, 412 (2000))).
         6
           The majority opinion, while acknowledging this lack of evidence, cites United States v. Sindona, 636 F.2d 792,
804 (2d Cir. 1980), for the proposition that the court may accept representations of counsel in lieu of evidence regarding
a witness’s availability. Maj. Op. at 6. Setting aside the conflict between this proposition and the standard the TCCA
applied, see Maj. Op. at 6, n.3, I sincerely doubt that Sindona is valid law on this point. Although the Second Circuit
decided Sindona six months after the Supreme Court announced the burden-of-proof requirement in Roberts, the Sindona
court cited Bailey v. Southern Pacific Transportation Co., 613 F.2d 1385 (5th Cir. 1980)—a case decided before
Roberts—in support of the proposition the majority opinion quotes. As Bailey is not viable on this point in light of
Roberts, neither is Sindona. In any event, a 1980 out-of-circuit case is certainly not binding on us, and we should not
follow it.
No. 05-5614           Hamilton v. Morgan                                                       Page 12


         The TCCA, as well as the majority opinion, attempts to paper over this problem by pointing
to the evidence that the State supplied in support of its earlier motions to declare Shelton unavailable
to testify. To the extent that the TCCA relied on the evidence that the State had submitted in support
of its motions to declare Shelton unavailable for the January 2000 and May 2000 trial dates, this is
an objectively unreasonable application of Roberts.
        The unreasonableness of this analysis becomes clear once we consider what the previously
proffered evidence actually demonstrates. The January 2000 evidence demonstrates that in January
2000, Shelton’s disciplinary record led the military to conclude that he was a flight risk, and that the
military would not let him travel at that time because he was considered a flight risk. Likewise, the
evidence in support of declaring Shelton unavailable for the May 2000 trial shows that Shelton
would be deployed in Kosovo from April through October 2000. None of this previously proffered
evidence demonstrates in any way that Shelton would be unavailable to testify in January 2001.
Indeed, neither of the reasons for the military’s previous refusals applied in January 2001, as Shelton
had returned from deployment to Kosovo and was no longer considered a flight risk. The evidence
attached to the previous motions may indicate that bringing Shelton to Nashville to testify would
be difficult, but difficulty is hardly tantamount to unavailability. By relying on evidence that bears
infinitesimal, if any, relevance to whether Shelton was available to testify in January 2001, the
TCCA unreasonably applied Roberts’s burden-of-proof standard.
         The majority opinion bends over backwards to accommodate the TCCA’s decision to ignore
Roberts’s burden-of-proof requirement, claiming that “[i]t was up to the Tennessee courts to
determine the type of proof or statements required to carry the State’s burden of proof under the
criteria from Ohio v. Roberts.” Maj. Op. at 6, n.3. Not so. The majority cites no authority for this
bewildering proposition of law, and for good reason: the majority’s position completely eradicates
the Roberts standard. According to the majority, state courts are free to undercut a burden-of-proof
requirement established by the Supreme Court by allowing a prosecutor to sustain his burden with
no evidence. Similarly, according to the majority, the state is free to conclude that a constitutionally
required burden of proof is met when the government references, but does not include, evidence that
is plainly irrelevant to the issue in question. The majority’s unprecedented deference to the state
courts effectively erases the burden-of-proof requirement from Roberts, and with it, the Supremacy
Clause from the text of the Constitution. This I cannot countenance.
                                    III. HARMLESS ERROR
         Finally, I believe these errors were not harmless, and accordingly, we should reverse the
district court’s judgment. “On collateral review, an error is deemed harmless unless it ‘had a
substantial and injurious effect or influence in determining the jury’s verdict.’” Stapleton v. Wolfe,
288 F.3d 863, 867 (6th Cir. 2002) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). If
the court is uncertain, but has “‘grave doubt’ as to the harmlessness of the error, it ‘should treat the
error, not as if it were harmless, but as if it affected the verdict . . . .’” Id. (quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1994)).
        Additionally, when evaluating the harmlessness of admitting prior testimony in violation of
the Sixth Amendment, courts consider whether admitting the testimony had a substantial and
injurious effect or influence on the jury, not whether the lack of cross-examination had such an
effect. As we have previously indicated, “the proper standard by which to gauge the injurious
impact of the admission of constitutionally infirm evidence is to consider the evidence before the
jury absent the constitutionally infirm evidence.” Brumley, 269 F.3d at 646 (emphasis added) (citing
Gilliam v. Mitchell, 179 F.3d 990, 995 (6th Cir. 1999); Stoner v. Sowders, 997 F.2d 209, 213 (6th
Cir. 1993)).
No. 05-5614              Hamilton v. Morgan                                                              Page 13


        In Tennessee, aggravated robbery is a robbery “[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly
weapon.” TENN. CODE ANN. § 39-13-402(a)(1). As noted previously, Shelton was the key witness
in the aggravated robbery case—indeed he was the victim of the alleged robbery—and the only
witness who testified that Hamilton pointed a gun at him. Without Shelton’s prior testimony, the
prosecution’s case would have been extremely weak, consisting solely of testimony from Mario
Woodard, who was unable to remember the details of the alleged robbery without leading questions:
        Q: Can you describe the person that he [Hamilton] robbed?
        A: No.
        Q: Well, was it a man or a woman?
        A: I guess a man.
        Q: Well, I mean, were you there?
        A: I wasn’t there, but I seen—I seen like the end of it.
        [. . .]
        Q: All right, and what was the first thing that you saw take place between the victim
              and Quinn?
        A: I didn’t see nothing.
J.A. at 201-02 (Trial Tr. at 116-17).
        Although Woodard eventually recalled some aspects of the transaction after notable
prompting from the prosecutor,7 he never testified that he saw Hamilton point a gun at Shelton, an
element of aggravated robbery. The closest he came was his testimony that he saw “Quinn
[Hamilton] run towards the other way with a gun in his hand,” apparently after the alleged robbery.
J.A. at 201 (Trial Tr. at 116). However, even this testimony is vague, as Woodard provided no
indication of either the distance or the time elapsed between the alleged robbery and his perception
of Hamilton’s holding a gun. Due to these omissions, we have no idea when Woodard claimed to
have seen the gun. Additionally, the trial transcript is peppered with indications that Woodard had
a criminal past that included felonious possession of a weapon, J.A. at 206 (Trial Tr. at 121), and
that Woodard had a powerful motive to testify against Hamilton while downplaying his own role
in the robbery, J.A. at 205 (Trial Tr. at 120), 207-08 (Trial Tr. at 122-23).
       The trial record without Shelton’s testimony is hardly the stuff of which an open-and-shut
case of aggravated robbery is made. Perhaps a reasonable jury could have convicted Hamilton
because Woodard testified that he saw Hamilton run away from Shelton while carrying a gun.
Nonetheless, it is difficult to see how the admission of prior testimony from the victim, and sole
witness who offered direct evidence of an element of aggravated robbery, could not have had a
substantial and injurious effect or influence upon the jury’s verdict. Because, under harmless error
analysis, we consider whether the errantly admitted evidence had such an influence (and not whether
a reasonable jury could have voted to convict), I cannot see how this error could be harmless.
                                            IV. CONCLUSION
       Because the state courts did not follow clearly established Supreme Court precedent and
because the error almost certainly influenced the jury’s verdict, the district court should have granted
Hamilton’s petition for a writ of habeas corpus. I respectfully dissent.




        7
         That this prompting was necessary demonstrates just how weak the prosecution’s case would appear to a jury
without Shelton’s testimony. I emphasize it for this reason only.
