                                UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 08-6366


DONALD ALLISON BLOUNT, JR.,

                 Petitioner – Appellant,

           v.

JAMES HARDY,

                 Respondent – Appellee,

           and

ROY COOPER; THEODIS BECK,

                 Respondents.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
Senior District Judge. (5:07-hc-02071-H)


Argued:   May 15, 2009                        Decided:   July 9, 2009


Before MICHAEL, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Michael and Judge Agee joined.     Judge Michael
wrote a separate concurring opinion.


ARGUED: April M. Giancola, NORTH CAROLINA PRISONER LEGAL
SERVICES, INC., Raleigh, North Carolina, for Appellant.   Mary
Carla Hollis, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: Dawn N. Blagrove, Paul
Green, NORTH CAROLINA PRISONER LEGAL SERVICES, INC., Raleigh,
North Carolina, for Appellant. Roy Cooper, Attorney General of
North Carolina, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

        Donald         Allison       Blount,       Jr.,      a    North        Carolina         inmate,

appeals          the   dismissal       of    his    petition          for     a    writ    of    habeas

corpus.           Blount      was     convicted        by    a   North      Carolina           court    of

first-degree           rape     of    a   child,        first-degree          sex       offense,       and

taking indecent liberties with a child.                               He was sentenced to a

range       of     336    to     413      months        imprisonment.               We    granted        a

certificate of appealability (“COA”) to determine whether the

state trial court’s admission of out-of-court statements made by

the     child      victim       to    therapists         violates       the       Sixth    Amendment

right       to    confront      witnesses.             For   the      following          reasons,      we

affirm.



                                                   I.

        We begin with a summary of the facts pertaining to the

underlying crime, as articulated by the North Carolina Court of

Appeals in an unpublished opinion in Blount’s direct appeal:

        “S.F. (victim or child) was three years old when her mother

.   .   .    began       living       with     defendant         (who    is       not    the    child's

father). Defendant and mother smoked marijuana and used cocaine

on a regular basis.                  In November of 2002 they were living with

defendant's            mother        because     neither         of     them       were    employed.

Defendant and mother shared a bed, and the victim slept in a

child's bed in the same room.

                                                   3
     “One    evening,       about      the       sixteenth    of    November,        2002,

defendant    and    mother     went    to    bed     after    using    marijuana      and

cocaine.     The victim was already asleep in her bed. At trial,

mother testified that she awoke to see defendant standing at the

foot of the victim's bed.             She saw defendant remove the victim's

clothes, remove his clothes, apply lotion to her and himself,

and briefly insert his penis into the child's vagina.                         Defendant

left the room, returned, re-dressed and returned to bed.                            Mother

went back to sleep without saying anything, because she feared

defendant.

     “The victim eventually told what had happened to her to

four different people.           The victim moved in with her maternal

grandmother . . . , because her mother and defendant had no

stable housing.           Grandmother testified that though the victim

had been a happy-go-lucky child before, when she came to live

with her after 16 November 2002 she clung to the grandmother and

did not eat or sleep well.             The victim complained of pain in her

vaginal     area,    which     was     red,       and   stated      she     was     having

difficulty urinating.

     “In    December      of   2002,    grandmother          took   the     child    to   a

pediatrician,       who    informed      grandmother         that     the    child     had

gonorrhea.     Grandmother did not know who had given the victim

gonorrhea, but on 25 January 2003 the child told her that she

had a secret.        She climbed onto grandmother's lap, crying, and

                                             4
told    her   that   her   mother   had       held    her   down   while   defendant

inserted a ‘black needle with white medicine’ into her vagina.

The victim then stated that her mother and defendant took her

into the bathroom and cleaned her up, that her vagina hurt and

bled a little, and that they told her what had happened was a

big secret and that she would have her toys taken away and be

punished if she told anyone.

       “A friend (Lisa) was living with grandmother on 25 January

2003 when the victim told grandmother what had happened to her,

and she heard the conversation.               Her account of what the victim

said that night was consistent with that of the grandmother.

       “Wendy Meadows . . . was a counselor working for Kids First

child    advocacy    center   in    December         2002   when   the   victim   was

referred to her by Department of Social Services.                    She testified

that the victim told her in their second session: ‘They gave me

candy and told me not to tell.’                  In their third session, the

victim told Meadows that, while holding her legs, defendant put

a black needle with white medicine in her vagina, while her

mother held her down by the neck.                     Meadows had two sets of

anatomical dolls, one a white family and one a black family.

Meadows asked the victim to show her what had happened using the

dolls.    The victim chose a girl doll and laid it on the table,

saying the doll was lying on a bed, she then chose an adult

female doll, indicated that it was her mother, and used the

                                          5
hands of that doll to press down on the neck of the girl doll.

She then chose a black doll, and indicated it was defendant.

She first had the male doll touch the girl doll in the area of

its vagina, then she told Meadows that defendant put a needle in

her.    When asked to show how defendant did this, the child ‘took

the black adult male doll and laid it on top of the girl doll

that was lying on the table.’              Finally, the victim told Meadows

that ‘it hurt, and I cried.’

       “The     victim    was   referred      to   another       counselor,    Kelly

Roberts . . . .          According to Roberts' testimony, on their sixth

session, the victim told Roberts the same story she had told the

other women: her mother held her down by the neck and arms,

while defendant first touched her vagina then inserted a black

needle with white medicine into her.               After her first revelation

to     Roberts,     the     victim   repeatedly         said,      ‘[Mother]     and

[defendant] hurt me.’           The victim repeated this story multiple

times in following sessions, and her story remained consistent.

The    victim    also    drew   pictures      depicting    the    events   she   had

described . . . .

       “Dare County Department of Social Services became involved

in the matter in December of 2002, after it was informed that

the child had gonorrhea.          Department of Social Services arranged

for both defendant and mother to be tested for gonorrhea, but

neither   kept     the    appointments.        Mother     was   never   tested   for

                                          6
gonorrhea.      Pursuant to a court order, defendant was tested on

15 March 2004 (approximately sixteen months after the event in

question), and the results were negative for gonorrhea.                            Dr.

Lisa M. Johnson testified that if a person had been successfully

treated for gonorrhea, any later test would be negative.”                          J.A

381-82.

                                        II.

                                        A.

      At trial, S.F. was called as a witness but was unable to

respond in any meaningful manner to the questions posed to her.

The   trial     court    determined     that    she    was   unavailable      as     a

witness.       Among    others,    Meadows     and    Roberts     were    called    as

witnesses by the State.           They testified as to what S.F. had told

them, including testimony that Blount had sexually abused her.

      Blount    argued    in   state    court    proceedings       that    allowing

Meadows and Roberts to testify as to what S.F. told them is a

violation of his Sixth Amendment right of confrontation.                           See

Crawford   v.    Washington,      541   U.S.    36    (2004). 1     In    analyzing


      1
       We granted a COA on “[w]hether Blount’s Sixth Amendment
right to confront witnesses against him, as articulated in
Crawford . . . , was violated by the admission at trial of out-
of-court statements made by a child witness to therapists, who
were under a known legal duty to report those statements to the
state for possible use at trial.”     The government asks us to
dismiss the COA as improvidently granted because the “legal duty
to report” portion of the COA is raised for the first time
before us and is therefore procedurally barred.         At oral
(Continued)
                                         7
Blount’s Crawford claim on direct appeal, the North Carolina

Court    of      Appeals     noted    that      “[f]ollowing        Crawford,      the

determinative question with respect to confrontation analysis is

whether the challenged hearsay statement is testimonial.”                         J.A

383.     (internal       citation    and   quotation     marks      omitted).     The

court    of    appeals     further   observed     that     “[t]he    United     States

Supreme Court determined in Crawford that ‘at a minimum’ the

term testimonial applies to ‘prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to

police        interrogations.’”      Id.       (internal     citation      omitted)

(emphasis in original).         Finally the court of appeals stated:

       [the North Carolina] Supreme Court has also recognized
       in Crawford an additional prong necessary to show that
       a statement is testimonial. This ‘additional prong of
       the analysis for determining whether a statement is
       ‘testimonial’    is,   considering    the  surrounding
       circumstances, whether a reasonable person in the
       declarant's position would know or should have known
       his or her statements would be used at a subsequent
       trial.   This determination is to be measured by an
       objective, not subjective, standard.’

Id. (citation omitted).




argument, Blount argued that the issue before us was the same
Crawford claim that he raised in each proceeding below, and that
the mandatory reporting requirement is not the issue he asked us
to review, but rather was a small facet of his argument.      We
decline to dismiss the COA, and we address the claim as
presented to us.



                                           8
       With this understanding of Crawford, the court of appeals

reviewed       the    record       regarding       S.F.’s     declarations       to     the

therapists.          The court of appeals stated that Meadows was in

private practice, never encouraged S.F. to disclose the abuse,

and    there    was    no     evidence      that    Meadows      ever    discussed      the

potential       for    any    criminal       consequences         or    punishment     for

Blount.     See Id.         As for Roberts, the court of appeals observed

that she told S.F. that their sessions were confidential and

that she would not disclose what S.F. said, and there was no

evidence that S.F. was made aware that her statements could be

used against Blount or that Roberts ever discussed any potential

punishment            for           Blount.                      See       Id.           at

384.    Finally, the court of appeals held that

       In light of the fact that the young victim in the
       instant case was speaking with therapists, not police
       officers, and that the record is devoid of any
       evidence that she had the slightest inkling that
       defendant faced criminal charges, or even that she
       understood what criminal charges were, we hold that
       her statements to Meadows and Roberts were not
       testimonial for Confrontation Clause purposes.      A
       reasonable three or four year old in the victim's
       situation would not have had any reason to know that
       her statements would be used at a subsequent trial.

Id. (emphasis in original).

                                             B.

       Blount    filed       his   habeas    petition       in   the    district      court

arguing     that      the    North    Carolina       Court       of    Appeals   applied

Crawford incorrectly.              In response, the state moved for summary

                                             9
judgment   on   Blount’s      claim.      The    district      court    granted      the

motion and dismissed Blount’s habeas petition.

      We   review    the     district     court’s       dismissal       of     Blount’s

petition de novo. See Tucker v. Ozmint, 350 F.3d 433, 438 (4th

Cir. 2003).     However, under 28 U.S.C. § 2254, “the scope of our

review is highly constrained.”                 Jackson v. Johnson, 523 F.3d

273, 276 (4th Cir. 2008).              We may only grant Blount relief if

the state court’s adjudication of his claim (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,”       28     U.S.C.

§ 2254(d)(1); 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)(2).

      The “contrary to” and “unreasonable application” clauses of

§ 2254(d) have independent meanings.                  Tucker, 350 F.3d at 438.

A state court’s decision is “contrary to” clearly established

federal law under § 2254(d)(1) when it “applies a rule that

contradicts the governing law set forth” by the United States

Supreme Court, or “confronts a set of facts that are materially

indistinguishable from a decision of . . . [the Supreme] Court

and nevertheless arrives at a result different from . . . [that]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

                                         10
        A     state        court’s     decision         involves     an     “unreasonable

application”           of      clearly       established         federal       law        under

§ 2254(d)(1)          “if      the     state       court     identifies      the     correct

governing legal rule from . . . [the Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state

prisoner’s case.”             Williams, 529 U.S. at 407.              This standard is

quite       deferential:       “The       state    court’s     application     of    clearly

established federal law must be ‘objectively unreasonable,’ and

‘a federal habeas court may not issue the writ simply because

that        court    concludes       in    its     independent      judgment       that    the

relevant        state-court           decision         applied    clearly      established

federal law erroneously or incorrectly.’”                        Robinson v. Polk, 438

F.3d 350, 355 (4th Cir. 2006) (quoting Williams, 529 U.S. at

411).        Moreover, when “assessing the reasonableness of the state

court’s application of federal law, the federal courts are to

review the result that the state court reached, not whether [its

decision] [was] well reasoned.”                    Wilson v. Ozmint, 352 F.3d 847,

855 (4th Cir. 2003) (quotation marks omitted).

                                                  C.

        Blount        argues       that      his       Sixth     Amendment      right        of

confrontation was violated when Meadows and Roberts, acting in

an     investigatory         and      prosecutorial        role,    testified        to    the

statements          S.F.    had      made,   thereby       making    S.F.’s    statements

“testimonial.”              He therefore contends that he is entitled to

                                                  11
habeas relief.           In granting summary judgment, the district court

held       that    “[c]ontrary     to     Petitioner’s        conclusion,      the    North

Carolina         Court   of    Appeals’    adjudication        of    the   Confrontation

Clause issue is not contrary to, or involved an unreasonable

application of clearly established federal law as determined by

the Supreme Court of the United States.”                      J.A. 424.        In holding

that Blount’s claim lacks merit, the district court noted that

Blount “has pointed to nothing in the evidence to show that the

victim      knew    or    had    reason    to     know    that   her   revelations      to

Meadows and Roberts would be used against Petitioner at trial.”

Id.

       We agree with the district court that the North Carolina

Court       of     Appeal’s       determination          of   this     issue     is    not

unreasonable. 2          The state court properly analyzed this claim

under Crawford and concluded that S.F. could not have known that

her statements to the therapists would be used at trial against

Blount.       Under our review, the North Carolina Court of Appeals’

conclusion that S.F.’s statements to her therapists were not

“testimonial” is not contrary to or an unreasonable application

of federal law.               See e.g., United States v. Peneaux, 432 F.3d


       2
       We         note that a state court is given more latitude to
reasonably        interpret federal law when the federal law involves,
as here, a        general standard set forth by the Supreme Court. See
Yarborough        v. Alvarado, 541 U.S. 652, 664 (2004).



                                             12
882, 896 (8th Cir. 2005) (holding the admission of statements to

a physician by a child regarding physical abuse does not violate

the Sixth Amendment right to confrontation); State v. Vaught,

682 N.W.2d 284, 293 (Neb. 2004) (holding the admission of a

statement by a child victim to her physician that the defendant

had sexually assaulted her was not testimonial).              Therefore, we

affirm the dismissal of Blount’s habeas petition.



                                     III.

     Based   on   the   foregoing,    we    affirm   the   district   court’s

order dismissing Blount’s habeas petition.

                                                                      AFFIRMED




                                      13
MICHAEL, Circuit Judge, concurring:

       I concur in the court’s opinion and in the conclusion that

“the North Carolina Court of Appeal’s determination . . . is not

unreasonable” under current Supreme Court precedent.                               Ante at

12.    I write separately to express my concern about what I see

as a very troubling case that would have benefitted from clearer

guidance as to how the Confrontation Clause applies to the out-

of-court    statement        of    a    child       witness    who   is    unavailable    to

testify because of her very young age.



                                               I.

       Donald Blount was convicted in North Carolina state court

of the rape and sexual molestation of a child and sentenced to

prison for 28 to 34 years.                   His conviction was based largely on

the hearsay testimony of two child therapists who assembled an

account    of    events      after        multiple      interviews        with   S.F.,   the

three- to four-year-old victim.                     The victim was referred to the

first of these therapists by law enforcement and social services

personnel       after     their        own   interview        failed      to   produce   any

evidence.       The state acknowledges that at least one purpose of

the    referral     was      to    obtain       evidence       against      Blount.      The

therapists, of course, were under a legal duty to report any

evidence of abuse they uncovered.                      See N.C. Gen. Stat. §§ 7B-

301,    302(e).         At        trial      both     therapists       recounted      S.F.’s
description of the assault from her therapy sessions.                                At no

point did Blount have an opportunity to cross-examine S.F., the

child declarant.



                                            II.

      In    Crawford     v.    Washington,           541   U.S.   36,   68   (2004),      the

Supreme     Court     held    that    “[w]here         testimonial      evidence     is   at

issue . . . the Sixth Amendment demands what the common law

required:     unavailability          and    a       prior   opportunity       for   cross-

examination.”         However, the Court explicitly “le[ft] for another

day   any    effort     to    spell    out       a    comprehensive      definition        of

‘testimonial.’” Id.           Instead, the Court held that “at a minimum”

the term “testimonial” covers police interrogations and “prior

testimony at a preliminary hearing, before a grand jury, or at a

former      trial.”      Id.         The    Court      also   listed     the    following

formulations of the “core class of ‘testimonial statements’”:

      [1] ex parte in-court testimony or its functional
      equivalent--that is, material such as affidavits,
      custodial examinations, prior testimony that the
      defendant was unable to cross-examine, or similar
      pretrial statements that declarants would reasonably
      expect to be used prosecutorially, [2] extrajudicial
      statements . . . contained in formalized testimonial
      materials, such as affidavits, depositions, prior
      testimony, or confessions, [and] [3] statements that
      were made under circumstances which would lead an
      objective witness reasonably to believe that the
      statement would be available for use at a later trial.

Id. at 51-52 (emphasis added) (internal citations omitted).


                                             15
       It   was     on    the     third,   most     general   formulation      that    the

North Carolina Court of Appeals based its conclusion that S.F.’s

statements to her therapists were not testimonial.                             State v.

Blount, No. COA05-134, 2005 N.C. App. LEXIS 2606, slip op. at

13-14 (2005) (unpublished) (“A reasonable three or four year old

in the victim's situation would not have had any reason to know

that her statements would be used at a subsequent trial.”).                             In

light of the lack of specificity of the third-formulation in

Crawford, I agree with my colleagues that the North Carolina

Court of Appeals’ decision is not an unreasonable one.                          However,

had the North Carolina court reached the opposite conclusion, a

federal         habeas     court    could     easily      have    held   that    to     be

reasonable as well.                See United States v. Bordeaux, 400 F.3d

548, 556 (8th Cir. 2005) (concluding that a child’s statements

during      a    “forensic        interview”       were   testimonial       because    the

purpose of the interview was “to collect information for law

enforcement” about the alleged sexual abuse); Anderson v. State,

833 N.E.2d 119, 125 (Ind. Ct. App. 2005) (investigative intent

of questioner rendered child’s statements testimonial).                               This

opposite conclusion is reasonable because Crawford’s imprecise

rule   provides          little    guidance    for    applying     the   Confrontation

Clause in the specific case of a child declarant’s statement to

therapists         serving         an      investigative         function     for      law

enforcement.        Cf. Crawford, 541 U.S. at 52 (“Statements taken by

                                              16
police      officers      in     the    course       of       interrogations        are       also

testimonial under even a narrow standard.”).

       Furthermore,        the    limited      amount         of    additional      direction

provided      by    the        Supreme       Court        since         Crawford   does        not

necessarily cut in favor of the North Carolina Court of Appeal’s

decision.         In Davis v. Washington, 547 U.S. 813 (2006), the

Court held that statements to law enforcement personnel were not

testimonial when “circumstances objectively indicat[e] that the

primary     purpose       of     the    interrogation              is    to    enable     police

assistance to meet an ongoing emergency,” but are testimonial

when “the circumstances objectively indicate that there is no

such   ongoing      emergency,         and   that       the    primary        purpose    of    the

interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.”                           Id. at 822.      The Court

thus held that statements made in a 911 call during an ongoing

domestic     disturbance         were    not    testimonial,             whereas   statements

made   to     police   officers          after      a     domestic        disturbance         were

testimonial        because       there       was     no       immediate        danger.          In

distinguishing the questioning during the event in the 911 call

from   that    in   Crawford       (post-event),              the   Court      noted    several

factors it considered important.                     First, the 911 call described

events      “as     they        were     actually          happening,           rather        than

‘describ[ing] past events.’”                 Id. at 827 (emphasis in original).

Second, statements made in the 911 call were made while the

                                               17
declarant        was    “facing          an    ongoing        emergency,”          rather     than

“report[ing] a crime absent any imminent danger.” Id.                                       Third,

the questions asked by the 911 operator were “necessary to be

able to resolve the present emergency, rather than simply to

learn (as in Crawford) what had happened in the past.”                                         Id.

(emphasis in original).                  Finally, there was a “difference in the

level of formality between the two interviews.”                               Id.      When the

Davis factors are applied to S.F.’s statements in this case, it

would be reasonable to conclude that they are testimonial.                                     Her

statements described past events and were not made during an

ongoing emergency.               The therapists’ questions, meanwhile, were

asked in a formal environment (a medical office) and for the

(partial) purpose of learning about past abuse.

        Of course, neither Davis nor any other Supreme court case

touches    directly         on     the     issue     presented        here    –-     whether     a

child’s        statements        to      therapists      who        will     report     to     law

enforcement           are     testimonial.               Moreover,          the      purposeful

generality of Davis and Crawford leaves us without answers to

crucial    questions.              For    instance,      it    is    unclear       whether     the

declarant’s age should be taken into account (as it was in this

case)     in     an    objective          analysis     of      whether       statements        are

testimonial.            The        appropriate       question         may     be     whether     a

“reasonable       three       or    four      year   old”      would       believe    that     her

therapists were gathering evidence for a possible trial, see

                                                18
State v. Blount, No. COA05-134, slip op. at 13-14, or it may be

whether an objective, competent witness would reasonably believe

that to be the case, see Crawford, 541 U.S. at 53.                                In addition,

Crawford and Davis fail to provide guidance as to the weight to

be    given      to    the    interrogator’s             purpose      in        conducting      an

interview.

      Because         Crawford     and       Davis        provide       only       generalized

guidance for situations beyond their specific facts, the North

Carolina Court of Appeals’ decision is reasonable essentially by

default.      But     the     specific       facts       of    this     case       present     an

especially       close       question    and       demonstrate          why      the    inferior

courts, including this one, are in need of additional guidance.

S.F.,   a     three-     or     four-year-old            child,    was        interviewed       on

several occasions by therapists who served, at least in part, as

proxies for law enforcement.                  The first of these therapists was

solicited by law enforcement, and both were expected to relay

any   description        by    S.F.     of    Blount’s        alleged      assault       to    the

Department of Social Services, which, in turn, would relay it to

the   District        Attorney’s       Office.           At     trial      both     therapists

recounted     S.F.’s        description       of    the       assault      as    part    of    the

state’s case-in-chief.                Yet, despite this close link between

S.F’s     therapists         and   law       enforcement,         her      statements         were

treated     as    non-testimonial            by    the    North       Carolina         Court    of

Appeals.

                                              19
     On   the   one   hand,       we   must   be   mindful   of   the   practical

challenges facing a court presented with the proffered (out-of-

court) statement of a very young child who is allegedly the

victim of a heinous crime.             On the other, we must be mindful of

the consequences of vitiating the Confrontation Clause right in

any case involving the statement of a child deemed too young to

understand the criminal justice system.               The latest signal from

the Supreme Court suggests that the Sixth Amendment right to

confrontation    remains      a    powerful    one.    See   Melendez-Diaz     v.

Massachusetts, No. 07-591 (U.S. June 25, 2009).                   Nevertheless,

the lack of direction for dealing with today’s facts leaves us

without leeway to disagree with the North Carolina court and

recognize the right.




                                         20
