                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0847n.06
                           Filed: October 17, 2005

                                         Case No. 04-5358

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 FRANK E. ADAMS,                                       )
                                                       )
         Petitioner-Appellant,                         )
                                                       )       ON APPEAL FROM THE
                v.                                     )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE MIDDLE
 FLORA J. HOLLAND, WARDEN,                             )       DISTRICT OF TENNESSEE
                                                       )
         Respondent-Appellee.                          )
                                                       )
 _______________________________________               )
                                                       )
                                                       )

BEFORE: BOGGS, Chief Judge; BATCHELDER and GIBBONS, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. Petitioner Frank Adams, a convicted

murderer, appeals the order of the district court dismissing his petition for a writ of habeas corpus,

arguing that the Tennessee trial court violated his Sixth Amendment rights under the Confrontation

Clause when it admitted an out-of-court statement by his non-testifying co-defendant, Timothy

Crowell, that Adams had killed Thomas Weser. Because Crowell’s statement was admitted for a

non-hearsay purpose, consistent with clearly established Supreme Court precedent, we affirm the

district court’s order dismissing Adams’s petition.

                                         BACKGROUND

       In the early morning hours of February 5, 1989, Adams and Crowell robbed a convenience

store and, an hour or so later, robbed and murdered Timothy Weser, a student at Vanderbilt
University. Adams and Crowell were indicted as co-defendants in the murder of Weser, and their

cases were severed for trial. Adams was tried first. Although it was not entirely clear which

defendant committed which specific acts in the events surrounding the murder, the state’s theory was

that Crowell had robbed the convenience store while Adams waited in the car as the getaway driver,

and that later that night, the two men switched places and Crowell waited in the car while Adams

robbed and murdered Weser.

        The state charged Adams with felony murder and aggravated robbery, and attempted to show

that Crowell and Adams were carrying out a scheme whereby they would take turns committing

robberies to obtain money with which to buy illicit drugs. As part of its proof, the state elicited

testimony from Lisa Cantrell-Williams, Adams’s former girlfriend, that she overheard the two men

planning the robberies earlier that night, and that Adams was acting suspiciously when he returned

home. On his cross examination of Cantrell-Williams, Adams sought to admit testimony that

Cantrell-Williams had overheard Crowell making statements suggesting that it was he, and not

Adams, who had done the shooting. The state objected to this testimony because it would not have

the opportunity to cross examine Crowell, who had asserted his right against self incrimination, but

the court ruled that the testimony was admissible under the unavailable-declarant exception to the

hearsay rule. Before the trial resumed, the state notified the court that it intended to introduce other

out-of-court statements to impeach the statement by Crowell, under Tenn. R. Evid. 806, and the

court indicated that it would allow impeachment evidence.

        After Adams elicited Crowell’s self-incriminating statement from Cantrell-Williams, the

state informed the court of its intention to introduce a statement made by Crowell to Detective Mike

Smith, in which Crowell asserted that it was Adams who had killed Weser. Specifically citing the


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Supreme Court’s decision in Tennessee v. Street, 471 U.S. 409 (1985), the court indicated that it

would permit Smith to testify to Crowell’s inconsistent statement, but that the testimony was

admissible only for the purpose of impeaching Crowell’s self-incriminating statement testified to

by Cantrell-Williams, and not as substantive evidence against Adams. After Smith testified that

Crowell had told him Adams had shot Weser, the trial judge gave a lengthy limiting instruction to

the jury, admonishing it that Crowell’s statement was to be considered only for the purpose of

judging Crowell’s credibility, not as substantive evidence against Adams. Adams was ultimately

convicted of felony murder and aggravated robbery, for which he received a sentence of life in

prison plus twenty years.

       The Tennessee Court of Criminal Appeals (TCCA) affirmed Adams’s conviction, including

the trial court’s handling of the Confrontation Clause issue. See State v. Adams, 859 S.W.2d 359

(1992). Although the TCCA did not cite the Supreme Court’s decision in Street, it did determine

that Smith’s testimony relaying Crowell’s contradictory statement constituted valid impeachment

(i.e., non-hearsay) evidence under Tenn. R. Evid. 806, and that the trial court had properly instructed

the jury that such testimony could be considered only for the limited purpose of impeachment. See

id. at 363. Adams raised the Confrontation Clause issue again in his federal petition for habeas

corpus. The federal district court initially dismissed this claim as procedurally defaulted. A panel

of this court affirmed, Adams v. Holland, No. 00-6575, 2003 WL 1786649 (6th Cir. April 4, 2003),

but reconsidered its opinion after considering a recently enacted Tennessee procedural rule, and then

remanded Adams’s case to the district court for a ruling on the Confrontation Clause claim on the

merits. Adams v. Holland, 330 F.3d 398, 407 (6th Cir. 2003). The district court then dismissed

Adams’s claim on the merits, holding that, in light of Street, the TCCA’s decision was neither


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contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See

28 U.S.C. § 2254(d)(1). We granted a certificate of appealability on the Confrontation Clause issue.

                                            ANALYSIS

       In Tennessee v. Street, 471 U.S. 409 (1985), the defendant testified at trial that his confession

had been coerced by the Sheriff, who had read to the defendant his accomplice’s confession and

directed him to “say the same thing.” The State then elicited the testimony of the Sheriff, who

denied the defendant’s story and read to the jury the accomplice’s confession, pointing out the

differences between the two confessions. The Supreme Court distinguished between the use of

hearsay evidence as substantive evidence against a criminal defendant, and the use of such evidence

for a non-hearsay purpose, such as rebuttal or impeachment, and held that the latter use “raises no

Confrontation Clause concerns.” Id. at 413-14. The Court noted that the accomplice’s confession

had not been introduced to prove the circumstances of the murder, but instead had been introduced

to rebut the defendant’s claim that his confession had been coerced. Id. This non-hearsay use, the

Court held, was consistent with the Confrontation Clause. Id. at 417.

       Adams did not see fit to mention Street in his initial brief on appeal, relying instead upon

Bruton v. United States, 391 U.S. 123 (1968), which held that a co-defendant’s confession, which

also implicated the defendant, could not be admitted in the joint trial of the two conspirators without

violating the non-declarant defendant’s rights under the Confrontation Clause unless the co-

defendant was available and subject to cross examination.            Id. at 126.     Adams’s case is

distinguishable from Bruton, however, not only because Adams and Crowell were not tried jointly,

but because the testimony in Adams’s case was admitted for the non-hearsay purpose of impeaching

hearsay testimony introduced by Adams. Moreover, the Street Court, whose holding squarely


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dispenses with Adams’s Confrontation Clause argument, explicitly distinguished Bruton. See Street,

471 U.S. at 413-16 (noting that unlike Bruton, in which the co-defendant’s confession was

introduced to prove the truth of its assertions, the accomplice’s confession in Street was introduced,

not to prove the truth of its content, but for the non-hearsay purpose of rebutting the defendant’s

claim of coercion).

        Adams relies also on Crawford v. Washington, 541 U.S. 36 (2004), but this reliance is

likewise unavailing. First, because the TCCA decision affirming Adams’s conviction was handed

down in 1992, the Supreme Court’s 2004 Crawford decision is inapplicable to our analysis. See 28

U.S.C. § 2254(d)(1) (writ of habeas corpus may not be granted unless the state court decision “was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States”). See also Williams v. Taylor, 529 U.S. 362,

412-13 (2000) (“the phrase ‘clearly 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”). But even if Crawford were retroactively applicable

to this habeas proceeding, it provides no help to Adams. Overruling Ohio v. Roberts, 448 U.S. 56

(1980), Crawford held that out-of-court testimonial statements admitted against a defendant, when

the defendant had no opportunity (either before or during trial) to cross examine the witness, violate

the Confrontation Clause, regardless of the reliability of the admitted statements. Crawford, 541

U.S. at 68-69. But the Court expressly said, citing Street, that “[t]he [Confrontation] Clause . . . does

not bar the use of testimonial statements for purposes other than establishing the truth of the matter

asserted.” Id. at 59 n.9. Because co-defendant Crowell’s statement was admitted via Detective




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Smith solely for the non-hearsay purpose of impeachment, it “raises no Confrontation Clause

concerns.” See Street, 471 U.S. at 414.

       Faced with the insurmountable burden presented by Street, Adams identifies three instances

in the prosecutor’s closing argument where he alleges that the prosecutor improperly used Crowell’s

statement as substantive evidence against Adams. The first snippet (“Timothy [Crowell] says I

didn’t do it, Frank Adams did it.”) takes the prosecutor’s statement woefully out of context. The

prosecutor’s full statement reads as follows: “[Adams] did exactly what Timothy Crowell did when

the police questioned him about the shooting. Yes, I know about it. I was there, but I didn’t do it.

Timothy Crowell did it. Timothy says, I didn’t do it. Frank Adams did it.” No fair reading of the

complete statement supports Adams’s contention that the prosecutor used Crowell’s statement as

substantive evidence of Adams’s guilt. The prosecutor simply used that statement to show that

Adams and Crowell were each strategically pointing the finger at the other. The other two

statements cited by Adams do not even refer to the statement Crowell made to Detective Smith;

rather, those statements are found in the testimony of another witness, Susie Franklin, which is not

challenged on appeal.

       We find no basis for Adams’s claim that the prosecutor improperly used Crowell’s statement,

which was admitted solely for impeachment purposes, as substantive evidence in the closing

argument. And we note that even if the prosecutor did use Crowell’s statement improperly in his

closing argument—a claim that should have been, but was not, brought as prosecutorial

misconduct—Adams does not claim that he made any objection to the prosecutor’s closing

argument, nor does he claim that the jury was not properly instructed that the prosecutor’s argument




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was not evidence. The prosecutor’s use of the statement in argument did not transmute the

statement’s evidentiary use from impeachment to substantive evidence of guilt.

                                        CONCLUSION

       The TCCA’s decision rejecting Adams’s Confrontation Clause claim was entirely consistent

with the principle set out in Tennessee v. Street, 471 U.S. 409 (1985), and was, therefore, neither

contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. See

28 U.S.C. § 2254(d)(1). We therefore AFFIRM the district court’s judgment dismissing Adams’s

petition for a writ of habeas corpus.




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