                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0023p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                           Petitioner-Appellant, -
 RANDOLPH WILKINS,
                                                    -
                                                    -
                                                    -
                                                        No. 07-3339
          v.
                                                    ,
                                                     >
 DEB TIMMERMAN-COOPER, Warden,                      -
                           Respondent-Appellee. -
                                                   N
                    Appeal from the United States District Court
                   for the Southern District of Ohio at Columbus.
                  No. 06-00027—Gregory L. Frost, District Judge.
                                        Argued: November 28, 2007
                                   Decided and Filed: January 14, 2008
     Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; BELL, Chief District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Theresa G. Haire, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: Theresa G. Haire, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
       JULIA SMITH GIBBONS, Circuit Judge. This appeal arises out of the district court’s
dismissal of petitioner-appellant Randolph Wilkins’s (“Wilkins”) petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The district judge held that the use of videoconferencing at
Wilkins’s parole revocation hearing did not violate his rights to due process and to confront his
accuser and therefore did not violate the Fifth and Sixth Amendments.
         For the reasons set forth below, we affirm the district court’s decision.




         *
           The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan,
sitting by designation.


                                                         1
No. 07-3339           Wilkins v. Timmerman-Cooper                                                 Page 2


                                                  I.
        We rely upon the factual findings of the state appellate court on direct review. Girts v.
Yanai, 501 F.3d 743, 749 (6th Cir. 2007); see also 28 U.S.C. § 2254(e)(1) (“In a proceeding
instituted by an application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.”) The Ohio Tenth District Court of Appeals (“state court of
appeals”) summarized the facts and procedural history as follows:
       On December 31, 1997, while on parole from a 1985 rape conviction, Wilkins was
       indicted by the Summit County Grand Jury for the rape of Shauneeka Mishauna
       Wilson. The alleged rape occurred on or about July 25, 1997. Wilson was ten years
       of age at the time.
       Wilkins was returned to the custody of the Ohio Department of Rehabilitation and
       Correction (“ODRC”) as a parole violator. The case was tried to a jury and, on
       September 3, 1998, Wilkins was found guilty. Wilkins was sentenced to life in prison
       and found to be a sexual predator. Wilkins appealed, and on September 29, 1999, the
       Ninth District Court of Appeals reversed Wilkins's conviction. The Ninth District
       Court of Appeals found that the trial court erred in admitting testimony concerning
       Wilkins's 1985 rape conviction. State v. Wilkins (1999), 135 Ohio App.3d 26, 732
       N.E.2d 1021. The court held that the testimony did not meet the requirements of
       Evid. R. 404(B) or R.C. 2945.59 and, as such, was inflammatory and prejudicial. Id.,
       135 Ohio App.3d at 32, 732 N.E.2d 1021. As a result, the case was remanded to the
       Summit County Court of Common Pleas. On September 15, 2000, the state dismissed
       the rape charge against Wilkins.
       ODRC continued to hold Wilkins as a recommissioned parole violator at the
       Southern Ohio Correctional Facility (“SOCF”), because he allegedly committed the
       following violations: (1) he had sexual relations with Wilson who was ten years old
       at the time of the encounter; (2) he changed his residence without permission of his
       parole officer; (3) he failed to report to his parole officer; (4) he had contact with a
       female under the age of 21 without permission of his parole officer; (5) he operated
       a motor vehicle in which a female was the passenger, without the permission of his
       parole officer; and (6) he was in the state of Louisiana without the permission of his
       parole officer.
       On October 27, 2000, Wilkins was notified that he was subject to a parole revocation
       hearing to be conducted via videoconferencing. On November 14, 2000, Wilkins
       filed a complaint for injunctive relief and motion for temporary restraining order,
       asserting that under Morrissey v. Brewer (1972), 408 U.S. 471, 92 S. Ct. 2593, 33 L.
       Ed.2d 484, the scheduled revocation hearing by videoconferencing would violate
       Wilkins's right to confront witnesses under the Fifth and Fourteenth Amendments of
       the United States Constitution. Appellees filed a memorandum opposing Wilkins's
       motion for temporary restraining order. Thereafter, the trial court conducted an oral
       hearing to allow both Wilkins and appellees to present their arguments. At the
       hearing, the trial court asked:
               “THE COURT: Is there any particular reason with this case? I mean
               why this case? Is there a reason? Is Shauneeka-what was her age, the
               alleged rape victim, is she going to be a witness, and is she as I
               remember young, is she 12, 13, something like that?
No. 07-3339         Wilkins v. Timmerman-Cooper                                                   Page 3




              “MR. HARDWICK: Your Honor, I believe she is 14 according to the
              birth date in the criminal transcript. She's currently 14.
              “MR. ZETS: That's correct, Your Honor. There's no specific reason
              why this case as opposed to any other case. It was just a
              determination was made they were going to use it in this case. I don't
              think they should be denied the ability with it-starting with this case
              going forward with it or this is one of the first few it's being used.
              “The whole idea in the plaintiff's argument is based upon protecting
              identity of witnesses, that's not an issue in this case. Because we are
              not talking about not allowing the plaintiff to confront those
              witnesses, it's the method by which they confront those witnesses. So
              the fact that the victim in this case will be in Akron, Ohio, by
              television-granted she is tender age, I believe she has-she might be
              somewhat mentally deficient or mentally challenged, in that respect
              I don't think that plays a huge role in determining whether or not they
              go to Lucasville or people in Lucasville go to Akron. It's just
              technology the department would like to use under Morrissey v.
              Brewer.”
      On November 20, 2000, appellees conducted the parole revocation hearing. Wilkins,
      his counsel, and the hearing officer were present at SOCF. The parole officer and the
      state's witnesses were present and testified via videoconferencing technology from
      Akron, Ohio. On December 5, 2000, the trial court denied Wilkins's motion for a
      temporary restraining order. On December 8, 2000, the Parole Board determined that
      Wilkins had violated his parole.
      On December 15, 2000, Wilkins filed an amended complaint for injunctive relief
      alleging that the use of the videoconferencing technology during his parole
      revocation hearing deprived him of the right to confront witnesses under the Fifth
      and Fourteenth Amendments of the United States Constitution. Appellees responded
      with a motion to dismiss for failure to state a claim upon which relief can be granted.
      Civ. R. 12(B)(6). On March 7, 2001, the trial court granted appellees’ motion to
      dismiss, stating that “[t]hrough the use of video-conferencing equipment, plaintiff
      was able to view and question the witnesses, despite his not being physically present
      in the same room. Also, the due-process and confrontation rights in a
      parole-revocation hearing do not rise to the level of those in a trial proceeding.”
      Wilkins appealed to this court. In Wilkins v. Wilkinson (Jan. 15, 2002), Franklin App.
      No. 01AP-468, 2002 WL 47051, this court reversed, holding that Wilkins had
      alleged sufficient facts to state a constitutional claim against appellees. Specifically,
      this court noted that Wilkins alleged that the video camera was positioned in such a
      way as to prevent him and his counsel from making eye contact with the witnesses,
      and that the video picture froze on several occasions, thereby preventing Wilkins and
      the hearing officer from observing the demeanor of the witnesses. These allegations
      were sufficient to allow Wilkins's claim to survive a Civ. R. 12(B)(6) motion.
      However, this court did not address whether the use of videoconferencing technology
      in a parole revocation hearing would satisfy the Confrontation Clause, when the
      equipment and procedure utilized is functionally equivalent to that accorded live,
      in-person testimony.
No. 07-3339           Wilkins v. Timmerman-Cooper                                               Page 4


       On remand to the trial court, the parties filed cross-motions for summary judgment.
       The parties attached as exhibits to the motions, among other things, videotapes of the
       parole revocation proceedings, the Release Violation Hearing Summary prepared by
       Hearing Officer Trayce Thalheimer, Thalheimer's affidavit, and the deposition
       transcripts of Chief Hearing Officer Cynthia Mausser and Thalheimer. The Release
       Violation Hearing Summary provided:
               “For the panel[’]s information this hearing was held at SOCF where
               the inmate, HO, public defender and public defender[’]s witness were
               present. The APA [Adult Parole Authority], and their witness’ [sic]
               were at the Akron office. This hearing was held via teleconference.
               This was against the wishes of the PD and a good deal of time was
               used discussing the objection of the hearing. It was determined in
               court that the hearing could take place. The PD wanted all parties to
               be aware that she objected to the way the proceedings were taking
               place and the fact that the victim would not be present face to face
               with the subj. in the room during testimony. The decision to hold the
               hearing this way was agreed to with the APA and the Chief Hearing
               officer. This was due to the mental and emotional status of the
               victim.”
       The trial court granted appellees’ motion for summary judgment, finding that:
       (1) appellees had shown good cause for using the videoconferencing technology;
       (2) the utilization of videoconferencing technology sufficiently permitted Wilkins
       and his counsel to observe and confront the witnesses; and (3) in any event, Wilkins
       admitted facts establishing most of the alleged parole violations.
       Wilkins appealed, assigning as error the following:
               “FIRST ASSIGNMENT OF ERROR: In violation of Randolph
               Wilkins[’s] right to due process of law, the trial court erred in finding
               as a matter of law, that Respondents showed good cause for holding
               the hearing by video conference due to the age and mental condition
               of one witness and did not require any showing of cause for the other
               three witnesses who testified by videoconference.
               “SECOND ASSIGNMENT OF ERROR: The trial court erred in
               violation of Mr. Wilkins's right to due process of law by finding that
               this videoconference was a sufficient approximation of a face-to-face
               encounter and that Dr. Stephen Acker's report was insufficient to bar
               summary judgment for Respondents.
               “THIRD ASSIGNMENT OF ERROR: In violation of Randolph
               Wilkins['s] right to due process of law, the trial court erred in finding
               that Mr. Wilkins's admissions as to non-criminal, technical parole
               violations obviated any problems with confrontation regarding the
               rape allegations at his parole revocation hearing.”
The state court of appeals explained that while a parolee is granted fewer due process rights than a
trial defendant, there still is a minimum due process threshold. It stated that the videoconferencing
technology used was “functionally equivalent to live, in-person testimony.” It explained that the
trial court did not err in its “determination that the use of videoconferencing technology sufficiently
permitted Wilkins and his counsel to observe and confront the witnesses, despite some minor
No. 07-3339            Wilkins v. Timmerman-Cooper                                                 Page 5


technical difficulties that were resolved during the hearing.” It added that Wilkins admitted four of
six parole violations, which satisfied due process, at least for the admitted violations. The use of
videoconference at the parole revocation hearing thus satisfied the Confrontation Clause. On
October 13, 2004, the Ohio Supreme Court declined jurisdiction and “dismisse[d] the appeal as not
involving any substantial constitutional question.”
        On January 11, 2006, Wilkins filed a petition under 28 U.S.C. § 2254 for writ of habeas
corpus by a person in state custody. On December 20, 2006, the United States Magistrate Judge
issued a report and recommendation in which he found that Wilkins had not rebutted the state
appellate court’s factual determination that “use of videoconferencing technology permitted free and
unimpeded visual and auditory communication between the hearing officer, witnesses, Wilkins, and
the respective counsel” and was “functionally equivalent to live, in-person testimony.” The
magistrate judge concluded that Wilkins failed to establish that the state court decision was either
(1) contrary to or an unreasonable application of federal law, as determined the Supreme Court or
(2) based upon unreasonable factual determinations.
        On February 12, 2007, the district court adopted the report and recommendation, overruling
objections to it. The district court determined that neither a due process violation nor a
Confrontation Clause violation occurred and that the state court of appeals’ factual findings were
not unreasonable.
                                                    II.
                                                    A.
        The court reviews de novo a district court's decision regarding a writ of habeas corpus.
Dando v. Yukins, 461 F.3d 791, 795-96 (6th Cir. 2006) (citing Wolfe v. Brigano, 232 F.3d 499, 501
(6th Cir. 2000)). Factual determinations made by the district court are reviewed for clear error,
except where the factual findings are based on the district court’s review of state court trial
transcripts and other court records, in which case they are considered de novo. Id. at 796 (citing
Mackey v. Russell, 148 F. App’x. 355, 359 (6th Cir. 2005) and Wolfe, 232 F.3d at 501). “In a
proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant
to the judgment of a State court, a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
        Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal
court may not grant habeas relief on any claim that was adjudicated on the merits in any state court
unless the adjudication of the claim either: “(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d). “‘[C]learly established Federal law as determined by the Supreme Court of the
United States’ . . . . refers to the holdings, as opposed to the dicta, of this Court's decisions as of the
time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A decision
is contrary to clearly established law when it is “diametrically different, opposite in character or
nature, or mutually opposed.” Id. at 405 (quotation marks omitted). In order to have an
“unreasonable application of . . . clearly established Federal law,” the state-court decision must be
“objectively unreasonable,” not merely erroneous or incorrect. Id. at 409, 412.
       “This standard requires the federal courts to give considerable deference to state-court
decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007) (citation omitted). AEDPA
No. 07-3339               Wilkins v. Timmerman-Cooper                                                              Page 6


essentially says to federal courts, “Hands off, unless the judgment in place is based on an error grave
enough to be called ‘unreasonable.’” Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998).
                                                           B.
         In Morrissey v. Brewer, the Supreme Court held that “the revocation of parole is not part of
a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does
not apply to parole revocations.” 408 U.S. 471, 480 (1972). The parolee is entitled to “ an informal
hearing structured to assure that the finding of a parole violation will be based on verified facts and
that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior.”
Id. at 484. The Morrissey court announced that the minimum requirements of due process in
relation to a parole revocation hearing are:
         (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of
         evidence against him; (c) opportunity to be heard in person and to present witnesses
         and documentary evidence; (d) the right to confront and cross-examine adverse
         witnesses (unless the hearing officer specifically finds good cause for not allowing
         confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole
         board, members of which need not be judicial officers or lawyers; and (f) a written
         statement by the factfinders as to the evidence relied on and reasons for revoking
         parole.
Id. at 489. The Court continued, “We emphasize there is no thought to equate this second stage of
parole revocation to a criminal prosecution in any sense.” Id. It explained, “We have no thought
to create an inflexible structure for parole revocation procedures. The few basic requirements set
out above, which are applicable to future 1revocations of parole, should not impose a great burden
on any State's parole system.” Id. at 490.
        In Gagnon v. Scarpelli, the Supreme Court considered due process rights in probation
revocation hearings, explaining that parole revocation and probation revocation are “constitutionally
indistinguishable.” 411 U.S. 778, 782 n.3 (1973). It added:
         An additional comment is warranted with respect to the rights to present witnesses
         and to confront and cross-examine adverse witnesses. Petitioner's greatest concern
         is with the difficulty and expense of procuring witnesses from perhaps thousands of
         miles away. While in some cases there is simply no adequate alternative to live
         testimony, we emphasize that we did not in Morrissey intend to prohibit use where
         appropriate of the conventional substitutes for live testimony, including affidavits,
         depositions, and documentary evidence. Nor did we intend to foreclose the States
         from holding both the preliminary and the final hearings at the place of violation or
         from developing other creative solutions to the practical difficulties of the Morrissey
         requirements.


         1
          Wilkins emphasizes inapplicable language from Morrissey in which the Supreme Court discusses preliminary
hearings, not revocation hearings:
         At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents,
         or individuals who can give relevant information to the hearing officer. On request of the parolee,
         person who has given adverse information on which parole revocation is to be based is to be made
         available for questioning in his presence. However, if the hearing officer determines that an informant
         would be subjected to risk of harm if his identity were disclosed, he need not be subjected to
         confrontation and cross-examination.
Id. at 487 (discussing the preliminary hearing).
No. 07-3339                Wilkins v. Timmerman-Cooper                                                              Page 7


Id. at 782 n.5.
         Wilkins argues that the state court of appeals unreasonably applied Morrissey in determining
that videoconferencing did not violate the Confrontation Clause or Wilkins’s due process rights.2, 3
However, given that defendants have fewer rights in parole revocation hearings than in criminal
trials, the state court of appeals did not unreasonably apply Morrissey, and its decision is not
“objectively unreasonable.” See Williams, 529 U.S. at 409. The Supreme Court specified there is
no “inflexible structure” for a parole revocation hearing. Morrissey, 408 U.S. at 490. Moreover,
the Court also encouraged “creative solutions” to avoid Confrontation Clause violations. Gagnon,
411 U.S. at 782 n.5. Therefore, it was not objectively unreasonable for the state court of appeals to
hold that videoconferencing, when used in a manner that allows the defendant to confront and hear
his accusers in real time, presents no Confrontation Clause violation.
         While Morrissey specifically provided for the right to “confront and cross-examine adverse
witnesses” absent a showing of good cause, 408 U.S. at 489, the Supreme Court clarified in Gagnon
that it “did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes
for live testimony, including affidavits, depositions, and documentary evidence,” 411 U.S. at 782
n.5. Given that the Supreme Court held that these types of statements can substitute for live
testimony in some cases, it is not “objectively unreasonable” to conclude that it would have
approved of videoconferencing. While videoconferencing was not available in the early 1970s, and
thus was not contemplated by the Supreme Court in Morrissey, it provides a defendant with the right
to observe and respond to the testimony of his accuser. Wilkins also had the right to cross examine
his accusers at the hearing. It is not “objectively unreasonable” to conclude it is just the sort of
“creative solution” envisioned by the Supreme Court. Nor was the decision contrary to Morrissey
itself. Morrissey does not address videoconferencing, and it states that parole revocation hearings
do not provide the “full panoply of rights” available at criminal trials. 408 U.S. at 480.
         Wilkins also challenges the state court of appeals’ factual finding that videoconferencing
was sufficiently similar to live testimony to permit Wilkins and his counsel to observe and confront
witnesses. Wilkins contends that in making this determination, the state court of appeals ignored
“unrebutted expert testimony to the contrary.” He argues that the testimony of his expert, Dr.
Stephen Acker, who examined the videotape following the hearing, demonstrated that a participant’s
ability to hear and interact was diminished when compared to a face-to-face hearing. As Dr. Acker
argues, communication was not as good as at a face-to-face hearing, because, for example, the
camera and monitor placement caused several participants to be observed in profile rather than
directly and the audio was occasionally muted. A review of Dr. Acker’s report, however, reveals
to us that Wilkins confronted his accusers because he observed, heard, and questioned them in real
time. Wilkins has not met his burden of rebutting our presumption that this factual finding is
correct. See 28 U.S.C. § 2254(e)(1). The conclusion that the use of videoconferencing here was


         2
           Wilkins cites several court of appeals decisions in support of his argument. These cases include Stoner v.
Sowders, 997 F.2d 209 (6th Cir. 1993), and United States v. Burke, 345 F.3d 416 (6th Cir. 2003). We do not consider
these cases because we cannot “look to lower federal court decisions in deciding whether the state decision is contrary
to, or an unreasonable application of, clearly established law.” Herbert, 160 F.3d at 1135. (citation omitted).
         3
           Wilkins also argues that the videoconference hearing did not satisfy Morrissey’s requirement of showing “good
cause” when the state denies a parolee’s confrontation right at a parole revocation hearing. The state trial court
determined in the alternative that the state court defendants had shown good cause for using videoconferencing because
Wilson was only fourteen years old at the time of her testimony and potentially was “mentally challenged.” In addition,
she resided several hundred miles away from the correctional facility to which she would have had to travel to testify.
The state appellate court and the district court did not reach this issue. Although it is unclear to what extent this finding
of good cause was driven by post hoc rationale, we need not reach the “good cause” issue given our deference to the state
court conclusion that Wilkins’s Confrontation Clause rights were not violated.
No. 07-3339          Wilkins v. Timmerman-Cooper                                            Page 8


“functionally equivalent” to live testimony, was not an “unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.” See 28 U.S.C. § 2254(d).
                                               III.
       For the foregoing reasons, we affirm the judgment of the district court.
