                                                                  [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                    No. 10-11889                   DEC 27, 2010
                                Non-Argument Calendar               JOHN LEY
                                                                      CLERK
                              ________________________

                        D.C. Docket No. 4:06-cv-00514-RH-AK

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                              Plaintiff - Appellant,

versus

WILLIE BAKER,

                                                              Petitioner - Appellee.

                             ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________

                                  (December 27, 2010)

Before BLACK, WILSON and FAY, Circuit Judges.

PER CURIAM:

         The State of Florida appeals the district court’s grant of a writ of habeas
corpus to Willie Baker, a Florida prisoner, on grounds that the exclusion of certain

impeachment evidence violated his rights under the Confrontation and Due

Process Clauses. The state argues that Baker did not present the Confrontation

Clause argument in his 28 U.S.C. § 2254 petition, and did not exhaust the claim in

the state courts. The state further argues that the exclusion of the evidence did not

violate the Confrontation Clause, and, regardless, the state court reasonably

concluded that any such error was harmless. For the reasons set forth below, we

affirm.

                                          I.

      In 1999, a 15-year-old girl identified as “D.A.” filed an abuse report against

Baker, her brother-in-law. He was charged with one count of committing a sexual

act on a victim under 16 years of age, by “oral, anal, or vaginal penetration by or

union with the sexual organ of another,” in violation of Fla. Stat. § 800.04(3)

(1998). At trial, D.A. testified that she was living with her sister and Baker in

1999. She said, “I was laying on the couch and my sister went out . . . . So,

[Baker] came—out of the blue, just came out touching me, feeling on me. He

grabbed my finger, my hand, and took me in their room and he had sex with me

with a condom.” She added,




                                          2
      He was kissing all over my neck. He was feeling all on my breasts
      and all between my legs and stuff. And he grabbed my hand and took
      me in their room.
             ....
             . . . He undressed me and he laid me down on the bed and he
      had sex with me with a condom. And I told him that I don’t go out
      like that, period.”
             ....
             . . . I say, ain’t you married to my sister? I do not go out like
      that.

She testified that, on another occasion, Baker drove uptown looking for her and

told her to ride with him. He touched her again and “was going to try to do it

again, but [she] would[ not] let him.” She said that he was “[k]issing on [her] and

feeling on [her] . . . personal thing,” but did not have sex with her.

      Baker proffered cross-examination of D.A. outside the presence of the jury.

She stated that she used to live in Alabama with her grandmother, but she came to

Florida because her “auntie’s boyfriend” raped her when she was nine years old.

He was not prosecuted because “[t]hey couldn’t catch up with him.” She spent her

first couple of days in Florida living with her uncle, Risey Darden, until his

grandsons tried to have sex with her. She told the boys’ grandmother that they had

tried to do so. When asked whether she had also accused Darden of trying to have

sex with her, she said, “Not that I know of,” and, “I might have.” She testified that

Darden had not tried to have sex with her, but she might have accused him of



                                           3
doing so. She later moved in with her other sister and brother-in-law, Angela and

Eddie Price. While she was living with them, she accused Eddie of trying to have

sex with her, but she later told an investigator that he had not done so. At one

time, she accused her brother, Lloyd Andrews, of having sex with her, as well.

She testified that Andrews had not had sex with her.

      Baker proffered D.A.’s testimony as relevant to her credibility and veracity.

The court, however, excluded the evidence on grounds that only general reputation

evidence, not specific instances of untruthfulness, could be used for impeachment.

      While an investigator was on the stand, the state played Baker’s recorded

statement, including the following excerpt:

      INVESTIGATOR HAIRE: Willie, there was an abuse report that
      came in to us from the Department of Protective Services and the
      abuse report said that DA, we will call her—do you know who I’m
      speaking about when I say DA?
            MR. BAKER: Yes.
            INVESTIGATOR HAIRE: That DA had said that you had
      forced her to have sexual intercourse with you two times. Is this true?
            MR. BAKER: Yes.
            INVESTIGATOR HAIRE: It is true?
            MR. BAKER: We started off playing around and it led to other
      things. And it led around to it. But, didn’t nothing happen. I
      couldn’t do it.
            ....
            INVESTIGATOR HAIRE: Okay. And inside the house there
      you said you got to playing around. Start from the beginning and tell
      me what all happened.



                                          4
        MR. BAKER: Well, we started playing around with one
another and one thing led to another. And it got down to where I
tried to have sex with her. I couldn’t. I couldn’t do it.
        INVESTIGATOR HAIRE: Did you touch her on her breast?
        MR. BAKER: No. Maybe around her waist and on her
shoulder and stuff like that.
        INVESTIGATOR HAIRE: Okay. Did you touch her on her
legs or her behind or between her legs?
        MR. BAKER: No.
        INVESTIGATOR HAIRE: Did you take her clothes off?
        MR. BAKER: No. She already pulled them down.
        INVESTIGATOR HAIRE: She pulled her clothes down?
        MR. BAKER: Uh-huh.
        INVESTIGATOR HAIRE: What kind of clothes? What was
she wearing?
        MR. BAKER: I can’t remember exactly. I believe she had
on—I believe she had on jeans. . . .
        INVESTIGATOR HAIRE: And she pulled those down to try to
have sex with you?
        MR. BAKER: Uh-huh.
        INVESTIGATOR HAIRE: But, because of your condition, you
said you weren’t able to have sex?
        MR. BAKER: I wasn’t able.
        INVESTIGATOR HAIRE: How old is she?
        MR. BAKER: I think she’s fifteen.
        INVESTIGATOR HAIRE: Okay. Let’s see. Her date of birth
is in January. So, I guess she would have just turned fifteen. Had
you ever had sex with her?
        MR. BAKER: Yes.
        INVESTIGATOR HAIRE: Now, she said—she mentioned two
times. Was there a second time?
        MR. BAKER: No.
        INVESTIGATOR HAIRE: You did not take her in your car
and take her to C & E Farm Road—
        MR. BAKER: No.
        INVESTIGATOR HAIRE: —and try to have sex with her?
        MR. BAKER: No.

                                5
            INVESTIGATOR HAIRE: That did not happen?
            MR. BAKER: No, that did not happen.
            INVESTIGATOR HAIRE: The only time that you attempted to
      have sex with her was this one time in your house?
            MR. BAKER: That’s right.

Outside the presence of the jury, Baker proffered testimony from Andrews,

Darden, and Angela Price regarding D.A.’s past allegations of sexual abuse, all of

which they denied. The court excluded the evidence. After hearing the remaining

evidence, the jury found Baker guilty.

      On direct appeal, Baker argued that Florida’s evidence laws do not abrogate

a defendant’s constitutional rights, and, thus, must give way when such laws deny

the defendant “the right to constitutional confrontation, or to due process.” The

proffered false-accusation testimony “presented classic credibility questions,” and

exclusion of the evidence “interfered with [Baker’s] confrontation rights[] and

precluded [him] from presenting a full and fair defense.” Baker contended that the

trial court may not refuse to admit evidence that is critical to a fabrication claim,

and failure to admit the evidence of D.A.’s prior false allegations was not

harmless. He concluded that the refusal to admit the evidence “gutted [his]

defense, denied him his state and federal rights to confront the witness, and denied

[him] his state and federal rights to due process.”




                                           6
      The First District Court of Appeal noted that a witness’s credibility

generally cannot be attacked with specific acts of misconduct that bear on her

truthfulness. It further noted that the Second District Court of Appeal had

recognized an exception for impeachment with prior acts of misconduct that

involve the witness’s prior false accusations of a crime. The court held that, even

if it were to adopt the Second District’s false-accusation exception, any error in

this regard was harmless beyond a reasonable doubt, in light of the “undisputed

evidence” that Baker had “admitted twice that he had sexual intercourse with the

victim.” If Baker had denied the charged sexual contact, the exclusion of the

false-accusation evidence might have constituted reversible error, but because he

had admitted the act, the alleged false accusations were of no moment. The

dissenting judge disagreed with the majority’s characterization of Baker’s

statement, saying that the “so-called admission[s]” might have been mere

acknowledgments of the victim’s accusations rather than admissions to those

accusations, calling the statement “equivocal, at best,” and noting that Baker never

admitted to either union with or penetration of the relevant portions of D.A.’s

anatomy.

      After unsuccessfully pursuing state post-conviction relief, Baker filed pro se

the instant federal petition for a writ of habeas corpus, pursuant to § 2254. He

                                          7
raised two claims for relief: (1) he was denied due process when the state court

excluded evidence that D.A. had falsely accused others of sexual crimes in the

past, particularly as the court’s decision was based on its erroneous finding that

any error was harmless in light of his purported confession to law enforcement;

and (2) the state court erred in failing to grant a new trial in light of the victim’s

subsequent recantation, which proved his actual innocence. In particular, Claim 1

alleged that the trial court’s exclusion of the evidence and the appellate court’s

harmless-error determination did “not follow laws created by the state,” thus

violating his constitutional right to due process, and that the harmless-error

determination rested on an incorrect statement of the facts. After the state

responded, Baker submitted a reply that invoked the principle of substantive due

process and asserted that precluding the jury from hearing the false-accusation

testimony caused a miscarriage of justice.

      The district court appointed counsel and ordered further briefing. As to

Claim 1, Baker stated that he had argued on direct appeal that the exclusion of the

false-accusation evidence violated his confrontation rights and precluded him from

presenting a full and fair defense. He contended that the appellate court’s

rejection of his claim incorrectly and unreasonably recited the harmless-error test,

reached a conclusion that would have been an incorrect application of the

                                            8
Supreme Court’s true harmless-error test, and was based on an unreasonable

determination of the facts. The state responded to Baker’s Confrontation Clause

argument on the merits.

      The district court found that Baker’s right to effective cross-examination

was violated by the exclusion of the false-accusation evidence. The proposed

evidence went to the heart of the witness’s credibility, and “[i]t [wa]s hard to

imagine a good reason for excluding” the evidence of the witness’s admission that

she had made prior, similar false accusations against others. Furthermore, this

error was not harmless, as the victim’s testimony was critical to the prosecution, it

provided the only evidence of the elements of “oral, anal, or vaginal penetration

by, or union with, the sexual organ,” and a reasonable jury might have received a

significantly different impression of her credibility if the evidence had been

admitted. The Florida appellate court had correctly noted that the statute does not

require penetration, but that “union” with a sexual organ could consist merely of

touching. Baker never admitted, however, to touching the victim’s sexual organs

or to touching any part of her with his penis, and he unequivocally denied

touching her breasts or “between her legs.”

      The court further found that, in context, Baker’s affirmative response to the

question, “DA had said that you had forced her to have sexual intercourse with

                                          9
you two times. Is this true?” appeared merely to acknowledge that she had made

the allegation. Moreover, Baker’s answer of “yes” to the question, “Her date of

birth is in January. So I guess she would have just turned fifteen. Had you ever

had sex with her?” might have been an acknowledgment of her age, particularly as

the question could be heard as asking only whether D.A. would have been 15 if

the sex had occurred as alleged. Standing alone, Baker’s affirmative response to

this question could not be viewed as an unequivocal recantation of his otherwise

clear and consistent statements to the contrary. The court found that Baker had

admitted to repugnant conduct, but he did not admit to committing the crime of

which he was convicted. Accordingly, without reaching Claim 2, the court

granted the § 2254 petition.

                                         II.

      We review de novo a district court’s grant or denial of a habeas petition

under § 2254. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.), cert. denied, 79

U.S.L.W. 3128 (U.S. Nov. 29, 2010) (No. 10-288). Factual findings are reviewed

for clear error, whereas mixed questions of law and fact, including the district

court’s conclusion regarding the reasonableness of the state court’s application of

federal law, are reviewed de novo. See id.

                                         III.

                                         10
      The federal courts “follow the principle of party presentation. That is,

[they] rely on the parties to frame the issues for decision and assign to courts the

role of neutral arbiter of matters the parties present.” Greenlaw v. United States,

554 U.S. 237, 244, 128 S.Ct. 2559, 2564, 171 L.Ed.2d 399 (2008). To the extent

that courts have varied from the general party-presentation rule, they usually have

done so in order to protect the rights of pro se litigants. Id. at 244-45, 128 S.Ct. at

2564. Pro se pleadings must be liberally construed, though the courts may not

serve as de facto counsel for the litigant or rewrite an otherwise deficient pleading

in order to sustain an action. GJR Investments, Inc. v. County of Escambia, Fla.,

132 F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other grounds,

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507

U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), as recognized by Randall v.

Scott, 610 F.3d 701, 705-06 (11th Cir. 2010).

      Moreover, before bringing a federal habeas action, the petitioner must

exhaust all state court remedies available for challenging his conviction, either on

direct appeal or in a state post-conviction motion. § 2254(b)-(c). Exhaustion of

state remedies presents a mixed question of law and fact that we review de novo.

Mauk v. Lanier, 484 F.3d 1352, 1357 n.3 (11th Cir. 2007). Exhaustion requires

the petitioner to fairly present his federal claims in the state courts, in order to give

                                           11
the state courts the first opportunity to hear and resolve the claims. Ogle v.

Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007). “A habeas petitioner exhausts

available state remedies when he fairly presents his claim for a state remedy even

if the state never acts on his claim.” Id. at 1369.

      The Sixth Amendment’s right to cross-examination of witnesses is

incorporated against the states through the Fourteenth Amendment’s Due Process

Clause. See McDonald v. City of Chicago, 561 U.S. __, 130 S.Ct. 3020, 3034 &

n.12, 177 L.Ed.2d 894 (2010) (citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965)).

      Here, Baker’s pro se petition did not specify whether he claimed a violation

of procedural due process, substantive due process, or both. Claim 1 referred to

“due process,” vaguely asserted that the state courts must follow state law, and

primarily discussed the merit of the appellate court’s denial of the false-

accusation-evidence claim, which had challenged the exclusion of the evidence on

confrontation and due-process grounds. His subsequent pro se reply mentioned

the concept of substantive due process and discussed the miscarriage of justice

caused by preventing him from introducing the false-accusation evidence. His

counseled memorandum discussed the Confrontation and Due Process Clauses at

length, and the state responded on the merits without suggesting that Baker was

                                          12
required to amend the petition in order to make the Confrontation Clause

argument. Liberally construing the pro se pleadings and reading them as a whole

with the counseled memorandum, the district court did not err in treating Claim 1

as having raised a claim of a violation of substantive due process, specifically

through a Confrontation Clause error. See Greenlaw, 554 U.S. at 244-45, 128

S.Ct. at 2564.

      As to the state’s exhaustion argument, Baker’s brief on direct appeal clearly

and repeatedly stated that exclusion of the false-accusation evidence had violated

his constitutional rights to confrontation and due process, including explicit

mention of his “state and federal rights to confront the witness, and . . . his state

and federal rights to due process.” Thus, he did fairly raise his Sixth and

Fourteenth Amendment claim in the state appellate court, irrespective of that

court’s decision to decide the issue on harmless-error grounds without resolving

the constitutional question. See Ogle, 488 F.3d at 1368-69. Accordingly, Baker’s

state-court remedies have been exhausted.

                                          IV.

      Under § 2254(d), a federal court may not grant habeas relief on claims that

were previously adjudicated in state court, unless the state-court adjudication

“resulted in a decision that was contrary to, or an unreasonable application of,

                                          13
clearly established [f]ederal law, as determined by the Supreme Court of the

United States; or . . . resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the [s]tate court

proceeding.” § 2254(d)(1)-(2). A state-court decision is contrary to clearly

established precedent if it applies a rule that contradicts the governing law set

forth in Supreme Court case law, or if it reaches a different result from the

Supreme Court when faced with materially indistinguishable facts. Ward, 592

F.3d at 1155. A state-court decision involves an unreasonable application of

clearly established federal law if the state court unreasonably extends or fails to

extend a clearly established legal principle to a new context. Id.

      The Confrontation Clause guarantees the defendant the opportunity to

cross-examine the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673,

678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). “[T]he exposure of a

witness’[s] motivation in testifying is a proper and important function of the

constitutionally protected right of cross-examination.” Id. at 678-79, 106 S.Ct. at

1435 (quotation marks omitted). Trial judges retain wide latitude to impose

reasonable limits on cross-examination of a witness, based on concerns about

harassment, prejudice, confusion of the issues, the witness’s safety, interrogation

that is repetitive or only marginally relevant, and other concerns. Id. at 679, 106

                                          14
S.Ct. at 1435. Yet the trial court may not prohibit all questioning of the witness

about an event that the jury might reasonably have found furnished the witness a

motive for favoring the prosecution in his testimony. See id. “The partiality of a

witness is subject to exploration at trial, and is always relevant as discrediting the

witness and affecting the weight of his testimony.” Davis v. Alaska, 415 U.S. 308,

316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quotation marks omitted). “[A]

criminal defendant states a violation of the Confrontation Clause by showing that

he was prohibited from engaging in otherwise appropriate cross-examination

designed to show a prototypical form of bias on the part of the witness, and

thereby to expose to the jury the facts from which jurors could appropriately draw

inferences relating to the reliability of the witness.” Olden v. Kentucky, 488 U.S.

227, 231, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (quotation marks and

alteration omitted).

      “While some constitutional claims by their nature require a showing of

prejudice with respect to the trial as a whole, the focus of the Confrontation Clause

is on individual witnesses.” Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1435.

“Accordingly, the focus of the prejudice inquiry in determining whether the

confrontation right has been violated must be on the particular witness, not on the

outcome of the entire trial.” Id. Nevertheless, an otherwise valid conviction

                                          15
should not be set aside if the error was harmless beyond a reasonable doubt. Id. at

684, 106 S.Ct. at 1438 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967)). Whether an error was harmless depends on a variety of

factors, such as the importance of the witness’s testimony and the presence or

absence of corroborating or contradictory evidence. Id.

      In Davis, 415 U.S. at 316, 94 S.Ct. at 1110, the Supreme Court stated that

evidence of a witness’s prior crime may be used in a general attack on the

witness’s character for truthfulness, or as a particular attack directed at revealing

possible biases, prejudices, or ulterior motives, as they relate directly to the issues

or personalities in the case. As the witness’s testimony provided a crucial link in

the proof of the case against Davis, the witness’s accuracy and truthfulness were

key to the prosecution. Id. at 318, 94 S.Ct. at 1111. The state’s interest in

protecting the anonymity of juvenile offenders did not outweigh the serious

damage that the evidence would have done to the prosecution, and, thus, exclusion

of the evidence constituted a violation of the Confrontation Clause. See id. at 318-

20, 1111-12.

      In Olden, 488 U.S. at 228-29, 109 S.Ct. at 481-82, the trial court excluded

any evidence that the defendant was in an extramarital relationship with the

purported rape victim and that the victim was lying to protect her marriage. See

                                           16
id. at 230-31, 109 S.Ct. at 482. The Supreme Court held, “It is plain to us that a

reasonable jury might have received a significantly different impression of the

witness’[s] credibility had defense counsel been permitted to pursue his proposed

line of cross-examination” into the victim’s reason for lying about the rape. Id. at

232, 109 S.Ct. at 483 (quotation marks and alteration omitted). “[T]he limitation

here was beyond reason,” and the “exclusion of evidence “with such strong

potential to demonstrate the falsity of [the victim’s] testimony” was unjustifiable

under the circumstances. Id. Furthermore, the victim’s testimony was crucial to

the prosecution’s case and directly contradicted the defendant’s account of that

night, so the restriction on his right to confrontation was not harmless beyond a

reasonable doubt. Id.

      Here, D.A. was questioned under oath about her past accusations of sexual

assault by male relatives. She testified that her “auntie’s boyfriend” raped her

when she was nine years old, but he was never caught. She said that Risey

Darden’s grandsons tried to have sex with her during the day and a half that she

spent at Darden’s home, but Darden denied that it had happened. She said that she

might have accused Darden of having sex with her, as well, but he had not done

so. While she was living with Eddie Price, she accused him of trying to have sex

with her, but later told an investigator that he had not done so. While she was

                                         17
living with Lloyd Andrews, she accused him of having sex with her, as well, but

she testified that he had not done so. Thus, D.A. herself explicitly stated that the

allegations against Price and Andrews were false, she acknowledged that she

might have made a third false accusation against Darden, and Darden would have

testified that the allegation against his grandsons also was false.

      D.A.’s truthfulness was key to the prosecution, and the evidence of her prior

false accusations not only spoke to her general character for truthfulness, but

particularly attacked her truthfulness and motivation for testifying as they related

directly to her allegation against Baker. See Davis, 415 U.S. at 316, 318, 94 S.Ct.

at 1110-11. The evidence that D.A. had habitually lied about sexual assaults by

family members had “strong potential to demonstrate the falsity of [her]

testimony” in this case, and “a reasonable jury might have received a significantly

different impression of [her] credibility had defense counsel been permitted to

pursue his proposed line of cross-examination.” See Olden, 488 U.S. at 232, 109

S.Ct. at 483. Furthermore, the trial court only limited the testimony in light of the

state’s rules of evidence regarding impeachment, rather than out of concerns such

as harassment, prejudice, confusion, or a policy of protecting sexual-assault

victims. Supreme Court precedent clearly indicates that the exclusion of the false-

accusation evidence violated Baker’s rights under the Sixth and Fourteenth

                                          18
Amendments. Thus, failure to find a Confrontation Clause violation would

constitute an unreasonable application of federal law.

                                          V.

      State courts’ findings of fact are entitled to a presumption of correctness.

Ward, 592 F.3d at 1155-56 (citing § 2254(e)(1)). “Federal habeas courts generally

defer to the factual findings of state courts, presuming the facts to be correct

unless they are rebutted by clear and convincing evidence.” Jones v. Walker, 540

F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc), cert. denied, 129 S.Ct. 1670

(2009). However, when a state court’s adjudication of a claim is based on an

unreasonable determination of the facts, we are not bound to defer to the

unreasonably found facts or to the legal conclusions that flow from them. Id. In

such an instance, the petitioner’s claim is reviewed de novo. Id. at 1288 & n.5.

      On collateral review of “constitutional error of the trial type,” the federal

courts do not apply the harmless-error standard that was set forth in Chapman and

Van Arsdall. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722,

123 L.Ed.2d 353 (1993). Rather, we ask “whether the error had substantial and

injurious effect or influence in determining the jury’s verdict.” Id. at 637, 113

S.Ct. at 1722 (quotation marks omitted). “Under this standard, habeas petitioners

may obtain plenary review of their constitutional claims, but they are not entitled

                                          19
to habeas relief based on trial error unless they can establish that it resulted in

actual prejudice.” Id. (quotation marks omitted). The federal courts apply Brecht

regardless of which harmless-error standard was applied by the state court. Vining

v. Sec’y, Dep’t of Corr., 610 F.3d 568, 571 (11th Cir. 2010).

      The Florida offense of sexual battery on a child under 16 years of age

prohibits “oral, anal, or vaginal penetration by, or union with, the sexual organ of

another.” Fla. Stat. § 800.04(3) (1998), cross-referencing § 794.011(1)(h).

“Union permits a conviction based on contact with the relevant portion of

anatomy, whereas penetration requires some entry into the relevant part, however

slight.” Seagrave v. State, 802 So.2d 281, 287 n.7 (Fla. 2001).

      In reviewing Baker’s statement to the investigator, the district court

correctly found that Baker unequivocally denied touching D.A.’s breasts, bottom,

or “between her legs.” He admitted only to touching “around her waist and on her

shoulder and stuff like that.” He said that he tried to have sex with her but could

not, apparently because of a physical condition, and that D.A., not Baker, removed

her jeans. He admitted only to trying to have sex with her the one time at the

house, while unequivocally denying that he tried to have sex with her in his car.

      The district court did not clearly err when it found that Baker’s answer of

“yes” to the question, “DA had said that you had forced her to have sexual

                                           20
intercourse with you two times. Is this true?” appeared in context of other denials

to be a mere acknowledgment of the accusation. The court also did not clearly err

when it found that Baker’s other “yes,” to the question, “Let’s see. Her date of

birth is in January. So, I guess she would have just turned fifteen. Had you ever

had sex with her?” appeared in context of other denials to be a confirmation of her

age, rather than an admission to some other sexual encounter. The court correctly

noted that a jury would not be required to accept this one-word answer as a

recantation of the otherwise clear and consistent statements that Baker never had

sex with the victim because he was unable to do so and never touched her breasts

or “between her legs.”

      Furthermore, the state argues merely that Baker admitted to trying to have

sex with D.A., not to completing the sex act. Baker was neither charged with

attempt to commit a sexual act, nor convicted of attempt as a lesser included

offense. Baker’s admission that he “tried to have sex with her” does not indicate

what form his attempt took, but he repeatedly denied that it included touching her

in a prohibited area, and he never suggested that he actually penetrated or touched

her with his penis, as required by § 800.04(3).

      The record clearly does not support the state appellate court’s finding that

the “undisputed evidence” showed that Baker had admitted to having sex with

                                         21
D.A. Accordingly, this unreasonable determination of the facts is not entitled to

deference, nor is the harmless-error finding that flowed from it. See Jones, 540

F.3d at 1288 & n.5. As D.A.’s testimony provided the only evidence of

penetration or union, the exclusion of evidence that likely would have discredited

her allegations had a substantial and injurious effect on the jury’s verdict. See

Brecht, 507 U.S. at 637, 113 S.Ct. at 1722. Thus, the district court correctly found

that the Confrontation Clause error was not harmless.

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

      AFFIRMED.




                                         22
