                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 18a0099p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 MARTY LEVINGSTON,                                       ┐
                                 Petitioner-Appellant,   │
                                                         │
                                                          >     No. 17-3167
        v.                                               │
                                                         │
                                                         │
 WARDEN, WARREN CORRECTIONAL INSTITUTION,                │
                          Respondent-Appellee.           │
                                                         ┘

                     Appeal from the United States District Court
                    for the Southern District of Ohio at Cincinnati.
  No. 1:12-cv-00724—Michael R. Merz, Magistrate Judge; Timothy S. Black, District Judge.

                               Decided and Filed: May 30, 2018

               Before: SUTTON, McKEAGUE, and DONALD, Circuit Judges.
                                _________________

                                          COUNSEL

ON BRIEF: Paul M. Laufman, LAUFMAN & NAPOLITANO, Cincinnati, Ohio, for
Appellant. Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati,
Ohio, for Appellee.

                                     _________________

                                           OPINION
                                     _________________

       SUTTON, Circuit Judge. Someone murdered Michael Grace. An eyewitness identified
Marty Levingston as the assailant, or at least one of them.        And a jury convicted him.
Levingston filed a habeas petition claiming that the trial court allowed the jury to use the
eyewitness’s testimony in violation of the Confrontation Clause and the Due Process Clause.
Because the Ohio courts permissibly rejected those claims, we affirm.
 No. 17-3167                         Levingston v. Warden                                  Page 2


       More than ten years ago, Savana Sorrells looked out of her cousin’s second-story
apartment window. In a parking lot across the street, she saw two men arguing. She knew both
of them—David Johnson and Michael Grace—from the neighborhood. Johnson knocked Grace
to the ground.    Suddenly a third man, Marty Levingston, whom she also knew from the
neighborhood, approached from the shadows. Although a car obstructed her view of Grace’s
fallen body, Sorrells saw one thing: Johnson and Levingston standing over him, followed by
flashes of fire coming from the guns in their hands. Sorrells heard about ten shots. She never
saw Grace fire a gun or move after the shots were fired.

       Sorrells did not want to get involved at first. But her mother convinced her it was the
right thing to do. Ten days later, she contacted the police and told them what she had seen.
Speaking with Detective Matt Thompson, Sorrells identified Johnson and Levingston as the
shooters and said she was “[o]ne hundred percent” sure it was them. R. 10-10 at 43. Ten days
after that, she told a grand jury the same thing. Sorrells asked police to place her and her mother
in a witness protection program and move her to a different school. The government charged
Levingston with murder, felonious assault, and tampering with evidence. Ohio Rev. Code
§§ 2903.02(A), 2903.11(A)(2), 2921.12(A)(1).

       Sorrells did not appear at a pre-trial hearing. Prosecutors tracked her down, and Sorrells
repeated that she was certain that she saw Johnson and Levingston shoot Grace. But at the
rescheduled hearing in front of Levingston, Sorrells equivocated.         For the first time, she
expressed doubt about whether Levingston was one of the shooters. And for the first time, she
said she was not wearing her glasses or contacts that night.

       At trial, the court called Sorrells as its own witness so that both parties could cross-
examine her. See Ohio R. Evid. 614(A). During the government’s cross-examination, Sorrells
said that she changed her testimony based on what other people were telling her and admitted she
was afraid “of being contacted or influenced.” R. 10-5 at 87. During Levingston’s cross-
examination, Sorrells said that she genuinely grew unsure over what she saw.              Detective
Thompson testified about his interview with Sorrells and the jury heard a recording of their
conversation. The court instructed the jury that it could consider Sorrells’ prior statements to the
police and the grand jury “as testified by her” only to impeach her credibility. R. 10-11 at 165.
 No. 17-3167                           Levingston v. Warden                                  Page 3


But it said the jury could consider the prior statements and the recorded conversation through
Detective Thompson’s testimony as substantive evidence of Levingston’s guilt under an
exclusion to Ohio’s hearsay rule. See Ohio R. Evid. 801(D)(1)(c).

          The jury found Levingston guilty. He appealed, arguing that the trial court violated his
confrontation rights by instructing the jury that it could consider Sorrells’ earlier statements as
substantive evidence. The Ohio Court of Appeals rejected this argument and some others as
well. State v. Levingston, 2011 WL 1331883 (Ohio Ct. App. Apr. 8, 2011). The Ohio Supreme
Court declined to hear the appeal. State v. Levingston, 953 N.E.2d 843 (Ohio 2011) (mem.).

          Levingston filed a federal habeas petition. The district court stayed the action to permit
Levingston to exhaust his post-conviction remedies under Ohio law. In his post-conviction
petition, Levingston argued that, when the trial court allowed the government to use Sorrells’
statements as substantive evidence, it violated his right to confront the witnesses against him
under the Sixth and Fourteenth Amendments and his right to due process under the Fifth and
Fourteenth Amendments. The trial court denied his claims. The Ohio Court of Appeals rejected
the petition as procedurally barred, and the Ohio Supreme Court again declined to hear the
appeal.

          The district court rejected the habeas petition and granted Levingston a certificate of
appealability with respect to both claims.

          Federal law prohibits us from granting a habeas petition adjudicated on the merits in state
court unless the state court unreasonably applied Supreme Court precedent or relied on
unreasonable fact findings. 28 U.S.C. § 2254(d). Levingston has not met this standard with
respect to either of his claims.

          Confrontation Clause. Levingston maintains that the state trial court violated his Sixth
Amendment right to be confronted with the witnesses against him by permitting the government
to introduce Sorrells’ testimonial statements as substantive evidence. Levingston acknowledges
that he had the opportunity to cross-examine Sorrells at trial. But that by itself does not suffice,
he insists, because her prior “testimony was not subject to cross examination” at the time she
made her out-of-court statements. Br. of Appellant 9. The factual premise is correct; she was
 No. 17-3167                           Levingston v. Warden                                  Page 4


not cross-examined when she gave her out-of-court statements to police.               But the legal
conclusion is not; the Confrontation Clause contains no such requirement.

       By its words, the Sixth Amendment protects a defendant’s right “to be confronted with
the witnesses against him.”         U.S. Const. amend. VI.    Sorrells was a “witness[] against”
Levingston. And Levingston had the opportunity “to be confronted with” her at trial, “where he
could cross-examine [her] and try to expose [her] accusation as a lie.” Crawford v. Washington,
541 U.S. 36, 62 (2004). That Sorrells may have been a “witness” against Levingston in one
sense earlier (at the time she spoke to police) does not matter so long as Levingston had the
chance to cross-examine her about the statements at trial.

       Many Confrontation Clause cases arise in this context. Take Crawford. It agreed that
statements by a witness to police officers during an interrogation are testimonial. 541 U.S. at 52,
65. But it did not demand that they be subjected to cross-examination at the time the witness
uttered them on pain of exclusion. To the contrary, it held that a court may admit the statements
without violating the Sixth Amendment if the witness is “test[ed] in the crucible of cross-
examination” at trial. Id. at 61.

       Keep in mind that the nature of a police investigation does not permit, or at most would
rarely permit, a cross-examination by the suspect’s attorney at the time of the initial statement. It
is an investigation after all. At the time of the interview, the police may not yet know whom
they plan to ask a grand jury to indict. Pre-indictment, there is no defendant and (usually) no
attorney to conduct the cross-examination.

       In rejecting a challenge identical to Levingston’s, albeit in a pre-Crawford setting, the
Court put the point this way: “[T]he Confrontation Clause does not require excluding from
evidence the prior statements of a witness who concedes making the statements, and who may be
asked to defend . . . his prior and his present version of the events in question, thus opening
himself to full cross-examination at trial as to both stories.” California v. Green, 399 U.S. 149,
164 (1970).

       In taking a similar approach, the Ohio Court of Appeals did not unreasonably apply
clearly established Supreme Court precedent. To the contrary, the court got it just right.
 No. 17-3167                         Levingston v. Warden                                 Page 5


       Also unavailing is Levingston’s apparent claim that the Ohio courts misapplied Ohio law
and permitted the introduction of unreliable evidence. For one, state hearsay rules and the
Confrontation Clause are not coterminous. See Green, 399 U.S. at 154–56, 163 n.15; Crawford,
541 U.S. at 51. For another, the trial court’s evidentiary rulings, just like other “state-court
determinations on state-law questions,” may not form the basis for federal habeas relief. Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991).

       Due Process Clause. Levingston’s back-up argument—that the instruction violated due
process—falls short too. To prevail, he must show that “the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten,
414 U.S. 141, 147 (1973), and that the state court unreasonably rejected the claim.

       We doubt that the trial court’s instruction was ailing at all. But even if it was, “the
category of infractions that violate ‘fundamental fairness’” has been defined “very narrowly.”
Dowling v. United States, 493 U.S. 342, 352 (1990). The Court has never invalidated an
instruction like this one, and it has repeatedly rebuffed due process challenges to erroneous jury
instructions. See, e.g., Waddington v. Sarausad, 555 U.S. 179, 192–94 (2009); Henderson v.
Kibbe, 431 U.S. 145, 152 (1977).

       Levingston does not cite a single Supreme Court decision to the contrary. He instead
points us to a Fifth Circuit decision that (he says) suggests that the use of prior inconsistent
statements as substantive evidence may violate due process.         See United States v. Leslie,
542 F.2d 285 (5th Cir. 1976). But Leslie says no such thing. It merely construes Rule 803(24)
of the Federal Rules of Evidence, and the phrase “due process” never takes the stage. Id. at 289–
91. One thing more: Even if we pretended that Leslie contained a Due Process holding, it is not
“clearly established Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). It thus “cannot form the basis for habeas relief under AEDPA.” Parker v.
Matthews, 567 U.S. 37, 48–49 (2012).

       We affirm.
