                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0926n.06

                                           No. 12–3686                                    FILED
                                                                                     Oct 29, 2013
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


JOHN PAUL WEBER, III,                             )
                                                  )
       Petitioner S Appellant,                    )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   SOUTHERN DISTRICT OF OHIO
TIMOTHY E. BUCHANAN,                              )
                                                  )                    OPINION
       Respondent – Appellee.                     )
                                                  )

       Before: ROGERS, STRANCH, and DONALD, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. John Paul Weber, III, an Ohio inmate convicted by

a jury of felony murder and other crimes, appeals the denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2254. He argues that his Sixth Amendment rights were violated when the

trial court refused to provide him with the grand jury testimony of a key prosecution witness for use

in cross-examining that witness. Because the district court properly denied the habeas petition, we

AFFIRM.

                         I. FACTS AND PROCEDURAL HISTORY

       On the evening of July 9, 2006, Weber and several others beat a man to death. Weber was

indicted and tried separately. In April 2007, a jury convicted him of two counts of kidnaping and

one count each of robbery, murder, tampering with evidence and obstructing justice. The trial court

imposed a sentence of nineteen years to life imprisonment.


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        On direct appeal, Weber argued that the trial court erred when it refused, during cross-

examination of prosecution witness Cynthia Ryan, to provide him with a copy of Ryan’s grand jury

testimony, even though she had reviewed the grand jury transcript to refresh her recollection before

testifying at trial. The record shows that the trial court directed the prosecutor to provide the court

in camera with a copy of the grand jury transcript and a statement Ryan gave to the police. After

review of these documents, the court refused to provide the grand jury testimony to Weber, even

though the court found some minor inconsistencies between Ryan’s trial and grand jury testimony.

The court allowed Weber to cross-examine Ryan on the statement she gave to the police.

        On direct appeal from the conviction, the Ohio Court of Appeals affirmed, ruling that the

trial court did not abuse its discretion in denying Weber access to the grand jury transcript because

Weber did not show a particularized need for it. State v. Weber, No. 22167, 2008 WL 3199504, at

*2–3 (Ohio Ct. App. Aug. 8, 2008). Finding any discrepancies in Ryan’s trial and grand jury

testimony to be “trivial,” the court of appeals ruled that any error in the trial court’s handling of the

matter was harmless beyond a reasonable doubt. Id. at *3. The Ohio Supreme Court declined

review, State v. Weber, No. 2008-1841, 900 N.E.2d 199 (Ohio Jan. 28, 2009), and the Ohio Court

of Appeals subsequently denied Weber’s pro se motion for reconsideration in February 2009.

        In the federal habeas petition, Weber asserted that his lack of access to Ryan’s grand jury

testimony violated his Sixth Amendment confrontation rights. The district court denied the petition

on the ground that no Supreme Court case suggested Weber’s Sixth Amendment rights were

violated, but in any event, any constitutional error was harmless because it did not have a substantial

and injurious effect or influence on the jury’s verdict. Weber v. Warden, Warren Corr. Inst., 886




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F. Supp. 2d 749, 754–57 (S.D. Ohio Apr. 11, 2012). The district court granted Weber a certificate

of appealability on this issue.

                                  II. STANDARD OF REVIEW

       We review the district court’s legal conclusions de novo and its factual findings for clear

error. See Hanna v. Ishee, 694 F.3d 596, 605 (6th Cir. 2012). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), we may not grant habeas relief with respect to any claim

adjudicated on the merits in state court unless the state court’s adjudication “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.”1 28 U.S.C. § 2254(d)(1). Under AEDPA,

“[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

“[A] state prisoner seeking a writ of habeas corpus from a federal court ‘must show that the state

court’s ruling on the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.’” Bobby v. Dixon, 132 S. Ct. 26, 27 (2011) (per curiam) (quoting

Harrington, 131 S. Ct. at 786–87).




       1
       Weber does not argue that the state court’s decision resulted in a decision that was based
on an unreasonable determination of the facts in light of evidence presented in a state court
proceeding. 28 U.S.C. § 2254(d)(2).


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                                          III. ANALYSIS

       The “starting point” for § 2254(d)(1) habeas cases “is to identify the ‘clearly established

Federal law, as determined by the Supreme Court of the United States’ that governs the habeas

petitioner’s claims.” Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)). We may not employ circuit precedent “to refine or

sharpen a general principle of Supreme Court jurisprudence into a specific legal rule” that the

Supreme Court “has not announced.” Id. at 1450.

       The Confrontation Clause protects criminal defendants in two ways: by granting “the right

physically to face those who testify against him, and the right to conduct cross-examination.”

Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (plurality opinion). Weber alleges a violation of

each right.

       He first argues that he was denied the right to confront the witness under Crawford v.

Washington, 541 U.S. 36 (2004). Weber alleges that before taking the witness stand at trial, Ryan

refreshed her recollection with the grand jury testimony, effectively replacing her actual recollection

of events with a recitation of the grand jury testimony that he did not have an opportunity to cross-

examine. But Weber did not exhaust the Crawford claim on direct appeal or in his state post-

conviction actions and the claim is now procedurally defaulted. “Default is excused if the petitioner

demonstrates: (1) cause for the default and prejudice flowing therefrom; or (2) that failure to

consider the claim will result in a fundamental miscarriage of justice.” Franklin v. Bradshaw, 695

F.3d 439, 449 (6th Cir. 2012). Because Weber has not made either showing to excuse the procedural

default, we do not address the merits of the Crawford claim.




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       As to the claim relating to the scope of cross-examination, Weber has not cited a case in

which the Supreme Court squarely held in a § 2254 habeas proceeding that a trial court’s refusal to

disclose grand jury testimony used to refresh recollection violates the Sixth Amendment. See

Middlebrooks v. Bell, 619 F.3d 526, 542–43 (6th Cir. 2010) (finding no clearly established Supreme

Court case holding that trial court’s failure to order disclosure of confidential hospital records

violated petitioner’s confrontation rights), cert. granted, judgment vacated on other grounds,

Middlebrooks v. Colson, 132 S. Ct. 1791 (2012). Supreme Court cases decided in other contexts,

however, suggest that Weber may have been entitled to review and utilize Ryan’s grand jury

testimony during cross-examination.

       In a federal prosecution, the Supreme Court stated that “[g]rand jury testimony is ordinarily

confidential . . . [b]ut after the grand jury’s functions are ended, disclosure is wholly proper where

the ends of justice require it.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233–34

(1940). The Court has further explained that use of grand jury testimony to impeach a witness, to

refresh recollection, or to test credibility constitutes a “particularized need where the secrecy of the

proceedings is lifted discretely and limitedly.” United States v. Procter & Gamble Co., 356 U.S.

677, 683 (1958). See also Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399 (1959).

In Davis v. Alaska, 415 U.S. 308, 309 (1974), a state criminal case, the defendant sought to probe

the bias of a key prosecution witness by asking him about his juvenile probationary status, but that

information was confidential under state law. Because “[c]ross-examination is the principal means

by which the believability of a witness and the truth of his testimony are tested,” the Court ruled that

the State’s policy interest in protecting the confidentiality of juvenile records “cannot require

yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse


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witness.” Id. at 316, 320. The Court has also recognized that its rulings in Socony-Vacuum Oil Co.,

Procter & Gamble Co., and Pittsburgh Plate Glass Co. are “entirely consonant with the growing

realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the

proper administration of criminal justice.” Dennis v. United States, 384 U.S. 855, 870 (1966). Yet,

the Court has been equally clear that the Confrontation Clause does not preclude a trial judge from

placing limits on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986);

Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir. 1989). The Sixth Amendment “guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

       During Weber’s trial, the court did not prohibit all inquiry into potential inconsistencies in

Ryan’s statements. The court allowed Weber to cross-examine Ryan about the statement she gave

to the police. Even if we assume without deciding that the trial court should have disclosed Ryan’s

grand jury testimony to Weber, any error in the state court proceeding was harmless because it did

not have a “substantial and injurious effect” on the jury’s verdict. See Fry v. Pliler, 551 U.S. 112,

120 (2007); Isaac v. Grider, No. 98-6376, 2000 WL 571959, at *8–9 (6th Cir. May 4, 2000) (finding

Sixth Amendment error under Davis in § 2254 habeas case, but ruling any error was harmless).

Weber urges us to apply the harmless error test from Chapman v. California, 386 U.S. 18 (1967),

and Eddleman v. McKee, 471 F.3d 576 (6th Cir. 2006). But in Fry, the Supreme Court adopted the

“substantial and injurious effect” standard from Brecht v. Abrahamson, 507 U.S. 619 (1993), for

§ 2254 habeas cases, and we apply that standard here.

       Having compared Ryan’s testimony before the grand jury with her testimony before the petit

jury, we agree with the state courts that there were no significant differences. Ryan’s answers on


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cross-examination about the statement she gave to the police provided the jury “enough information,

despite the limits placed on otherwise permitted cross-examination, to assess the defense theory.”

Dorsey, 872 F.2d at 167. Thus, this Sixth Amendment claim lacks merit.

                                       IV. CONCLUSION

       Weber’s claim under Crawford is procedurally defaulted, and his inability to impeach Ryan

with her grand jury testimony did not have a “substantial and injurious effect” on the jury’s verdict

to warrant habeas relief. Accordingly, we AFFIRM the judgment of the district court.




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