                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0687n.06

                                            No. 09-3808                                  FILED
                                                                                      Nov 04, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


LUIS COLON,                                               )
                                                          )
       Petitioner-Appellee,                               )
                                                          )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Northern
ROBERT TASKEY and LAUREN MOORE,                           )   District of Ohio
                                                          )
       Respondents-Appellants.                            )
                                                          )




       Before:         BOGGS, COLE, and CLAY, Circuit Judges

       BOGGS, Circuit Judge. Luis Colon’s petition for a writ of habeas corpus sought relief from

an Ohio state court conviction on one count of domestic violence. Colon alleged that his

constitutional rights under the Confrontation Clause of the Sixth Amendment were violated when

the prosecution introduced at trial statements made by his victim, who did not testify, to a police

officer shortly after the incident. The Ohio Court of Appeals found no Confrontation Clause

violation. The federal district court, however, granted the writ, holding that the state court

unreasonably applied the Supreme Court’s Confrontation Clause jurisprudence. In so holding, the

district court erred in applying the deferential standard of review that governs collateral attacks on

state court decisions. Because the state court correctly identified and reasonably applied the legal

principles governing this case, we reverse the district court’s order granting Colon’s petition.
No. 09-3808
Colon v. Taskey and Moore

                                                   I

       During the early morning hours of August 28, 2004, Evelyn Rivera and Adam Pabon

witnessed a man beating their neighbor on the street. While Rivera called 911, Pabon grabbed a

baseball bat and unsuccessfully tried to stop the assault. The man fled when the police arrived.

Police officer Brenda Korber approached the victim, who was sitting on a curb with a bruised and

bloodied face. When asked what had happened, the victim told Korber she had been walking home

with another man when the assailant attacked her, hitting her on the face and head. The victim

identified Colon as the assailant and provided his date of birth, adding that the two had dated for two

years and once lived together but had been separated for six months.

       On September 17, 2004, Colon was charged in Cleveland Municipal Court with one count

of domestic violence. When the case proceeded to trial on January 17, 2006, the victim did not

testify, but Korber testified to the statements made by the victim at the scene of the crime. Defense

counsel raised a hearsay objection, but the trial court admitted the statements under the excited

utterance exception to the hearsay rule. The statement regarding Colon’s cohabitation with the

victim was required to prove the domestic violence offense, of which Colon was convicted.

       Colon appealed the conviction, arguing that his “right to confrontation was violated when

the prosecution introduced testimonial hearsay statements from the alleged victim.” City of

Cleveland v. Colon, No. 87824, 2007 WL 179082, at *2 (Ohio Ct. App. Jan. 25, 2007). The state

appellate court affirmed the conviction on January 25, 2007. Id. It held that, because “the primary

purpose” of Korber’s questioning at the crime scene was to “assist the victim in an ongoing

emergency,” the victim’s statements were non-testimonial under Crawford v. Washington, 541 U.S.

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36 (2004), and Davis v. Washington, 547 U.S. 813 (2006). Id. at *5. The Ohio Supreme Court did

not accept Colon’s petition for review, Cleveland v. Colon, 868 N.E.2d 680 (Ohio 2007) (table), and

the United States Supreme Court denied his petition for a writ of certiorari. Colon v. City of

Cleveland, 552 U.S. 1148 (2008).

       On January 23, 2008, Colon filed a petition for a writ of habeas corpus in federal district

court, again arguing that the Confrontation Clause barred the prosecution from introducing the

victim’s statements at trial. The district court conditionally granted Colon’s habeas petition, holding

that, because Colon fled the scene when the police arrived, the state court’s conclusion that an

“ongoing emergency” existed was unreasonable.

                                                  II

       The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214 (1996) (“AEDPA”), governs collateral attacks on state court decisions. Under AEDPA, federal

courts cannot grant a habeas petition for any claim that a state court adjudicated on the merits unless

the state court’s adjudication: “(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 upon an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d);

see also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001). In Williams v. Taylor, the Supreme

Court explained that a federal court may grant a petition under the “unreasonable application” clause

of § 2254(d)(1) “if the state court identifies the correct governing legal principle from the Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” 529 U.S. 362,

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413 (2000). Even if a federal court determines that a state court incorrectly applied federal law, it

may not grant habeas relief unless it also holds that the state court’s application was unreasonable.

Simpson v. Jones, 238 F.3d 399, 405 (6th Cir. 2000).

                                                 III

       Our analysis of when the Sixth Amendment bars the admission of statements made by a non-

testifying witness begins with Crawford v. Washington. Under Crawford, because the Sixth

Amendment gives the “accused” a right to confront “witnesses against him,” “testimonial”

statements of a witness who does not appear at trial may not be admitted unless the defendant had

a prior opportunity to cross-examine the witness. 541 U.S. at 53-54; United States v. Arnold, 486

F.3d 177, 187 (6th Cir. 2007) (en banc). In Crawford, the non-testifying witness’s statements were

made while she was in custody; she had been read her Miranda rights, and her answers were tape-

recorded. 541 U.S. at 38. Although Crawford did not precisely define the term “testimonial,” it

emphasized that “[s]tatements taken by police officers in the course of interrogations are . . .

testimonial under even a narrow standard.” Id. at 52.

       But the Court soon clarified in Davis and its companion case, Hammon v. Indiana, that not

all statements made to law enforcement are “testimonial.” 547 U.S. at 822. “Statements are non-

testimonial,” the Court explained, when made “under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”

Ibid. Davis involved a 911 call made while the alleged assailant was actually in the caller’s home.

Id. at 817. The Court held the caller’s statements to be non-testimonial. Id. at 828. The Court

contrasted those statements with those at issue in Hammon, in which police responding to a domestic

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disturbance were told by the wife that “nothing was the matter.” Id. at 819. While police confined

the husband to another room, the wife completed an affidavit in which she described an altercation

that had occurred before the police arrived. Id. at 820. The Court held that the affidavit and the

statements made by the wife to the police were not made during an emergency and were therefore

testimonial. Id. at 830.

       Distinguishing the statements made during the 911 call in Davis from those made to police

officers in Crawford and Hammon, the Court explained, “In Davis, [the victim] was speaking about

events as they were actually happening, rather than describing past events.” Id. at 828. In Crawford

and Hammon, on the other hand, “[b]oth declarants were actively separated from the defendant . .

. . Both statements deliberately recounted, in response to police questioning, how potentially

criminal past events began and progressed. And both took place some time after the events described

were over.” Id. at 830. The Court emphasized that context matters: “we do not hold . . . that no

questions at the scene will yield non-testimonial answers . . . . [O]fficers called to investigate . . .

need to know whom they are dealing with in order to assess the situation, the threat to their own

safety, and possible danger to the potential victim.” Id. at 832 (internal quotation marks and brackets

omitted).

                                                  IV

       Under AEDPA, our review of the Ohio Court of Appeals’s decision in Colon’s case is limited

to whether the court correctly identified the “governing legal principle” and whether it “unreasonably

applie[d] that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. The Ohio

court correctly identified as the governing law the Supreme Court cases just discussed. Cleveland,

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2007 WL 179082, at *2-4. Applying that law, the court found that the victim’s statements to Officer

Korber were made during an “ongoing emergency” and were therefore non-testimonial. Id. at *5.

It reasoned that, “[u]nlike the circumstances in Hammon, the incident had just concluded when the

officer arrived, the defendant had just fled the scene and had not been secured by the police, and the

victim was hurt, bleeding and crying.” Id. at *4. “Additionally, the victim made the statements with

the primary purpose of enabling the police . . . to apprehend the person involved.” Id. at *5.

       A few months after the Ohio appellate court affirmed Colon’s conviction, this court had

occasion to apply the same precedents in United States v. Arnold, a case heard on direct review from

a federal court conviction. In Arnold, we analyzed three sets of statements made by a non-testifying

witness: 1) statements made during a 911 call just after the witness had fled an alleged assailant who

was “fixing to shoot” her; 2) statements made by the still-frantic witness to officers who arrived on

the scene while the assailant was at large; and 3) statements made by the witness to the police when

the assailant suddenly reappeared on the scene. 486 F.3d at 189-92. We found that all of the

statements could be considered non-testimonial because they were made during an “ongoing

emergency.” Ibid. Even when the defendant was not on the scene, “an emergency still existed”

because the defendant remained at large and “the victim was still screaming and crying.” Id. at 190.

Thus, for this court, the distinction between Crawford/Hammon and Davis turned neither on whether

police were present nor on whether the statements were made during the course of an altercation.

We noted that each statement “must be assessed on its own terms and in its own context” and that

“difficult boundary disputes will continue to emerge.” Id. at 189.



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          Two years after we decided Arnold, the district court held that the Ohio state court’s

application of Crawford, Davis, and Hammon in Colon’s case was not just wrong, but

“unreasonable.” Quoting Davis, 547 U.S. at 828, the district court emphasized that the Supreme

Court distinguished between statements describing “events as they were actually happening” and

those describing “past events.” It reasoned that “there was no ongoing emergency” in this case

because “Colon had already left the vicinity.” The court instead viewed the case as analogous to

Hammon, in which the police discussed past incidents with a victim who indicated that she faced no

immediate threat. See Davis, 547 U.S. at 830. The district court did not mention Arnold, even

though it was brought to the court’s attention by the magistrate judge. The magistrate judge’s report

and recommendation stated: “In many respects, this case is more similar to the facts of [Arnold] than

either the Davis or Hammon scenarios.” It also emphasized our statement in Arnold that the

boundary between Crawford/Hammon and Davis is not clear cut. See 486 F.3d at 189. The

respondents did not mention Arnold in their written submissions to the district court, but Colon’s

counsel addressed the case and attempted to distinguish it in her objections to the magistrate judge’s

report.

          The magistrate judge noted that the circumstances involved here are not unlike those under

which the second set of statements in Arnold were made. In both cases, a still-distressed victim was

interviewed by police officers while her alleged assailant was at large. In both cases, the police

asked questions “in order to assess the situation,” to learn “whom they [were] dealing with,” and to

ascertain the “possible danger to the potential victim.” Davis, 547 U.S. at 832.



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       There are of course, differences between this case and Arnold: in the latter, the assailant had

threatened the witness’s life with a gun, the witness had previously called 911 in hysterics, and the

at-large assailant was unaware that police were on the scene. The situation in Arnold may have

involved a more obvious “emergency.” Under AEDPA, however, the question before us is not

whether the cases can be distinguished, but whether the state court’s application of Crawford and

Davis to the facts of Colon’s case was so far wrong as to be “unreasonable.” The boundary between

“arguably wrong” and “unreasonable” is not precisely defined. But when this court, sitting en banc,

came to a similar conclusion when addressing arguably analogous facts just four months after

Colon’s conviction was affirmed, the state court was not unreasonable in finding the statements

made by Colon’s victim to be non-testimonial.

                                                 V

       Because the Ohio state court reasonably applied the Supreme Court’s Confrontation Clause

jurisprudence in affirming Colon’s conviction, we REVERSE the district court’s grant of Colon’s

petition for a writ of habeas corpus.




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