11-4418-pr
Evans v. Fischer



                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT


                                      August Term, 2012

                     (Argued: October 3, 2012      Decided: April 3, 2013)

                                    Docket No. 11-4418-pr


                                       CARLOS EVANS,

                                                                Petitioner-Appellee,

                                           — v. —

                                       BRIAN FISCHER,


                                                                Respondent-Appellant,



                                          B e f o r e:

                        LYNCH, LOHIER, and DRONEY, Circuit Judges.

                                    __________________

          Respondent Brian Fischer, the Superintendent of Sing Sing Correctional Facility,

appeals from a judgment of the United States District Court for the Eastern District of

New York (Dearie, J.) granting petitioner Carlos Evans’s application for a writ of habeas

corpus. Evans was convicted after a jury trial of the burglary of a Brooklyn apartment.

On direct appeal, the Appellate Division held that a written statement introduced into
evidence at Evans’s trial was inadmissible hearsay but that the error was harmless. We

conclude that the district court erred because the decision of the Appellate Division was

not contrary to or an unreasonable application of Supreme Court precedent, as required

for a grant of habeas corpus by 28 U.S.C. § 2254(d).

       REVERSED.



              GLENN A. GARBER, (Angharad Vaughan, on the brief), Glenn A. Garber,
                   P.C., New York, New York, for petitioner-appellee.

              THOMAS M. ROSS, Assistant District Attorney (Leonard Joblove, Ann
                   Bordley, Assistant District Attorneys, on the brief), for Charles J.
                   Hynes, Kings County District Attorney, Kings County, New York,
                   for respondent-appellant.




GERARD E. LYNCH, Circuit Judge:

       Petitioner Carlos Evans was convicted by a jury of burglarizing a Brooklyn

apartment and sentenced to fifteen years in prison. He was tried along with two co-

defendants, Hudson Merzier and Anthony Foster, on the strength of evidence recovered

from the scene as well as the testimony of, among others, Aisha Walker. Walker was

both an acquaintance of the defendants and a neighbor and acquaintance of the burglary

victim, Olujimni Omitogun. One week before Evans’s trial, Walker agreed to testify

against the defendants in exchange for a non-custodial sentence for her own role in the

burglary.


                                             2
       On October 22, 2002, in New York Supreme Court in Kings County, a jury

convicted Evans of burglary in the first degree, two counts of criminal possession of a

weapon in the second degree, and assault in the second degree. See N.Y. Penal Law §§

140.30; 265.03; 120.05. He was sentenced to concurrent terms of fifteen years’

imprisonment (on the burglary and weapons possession counts) and seven years’

imprisonment (on the assault count). Petitioner appealed his conviction and sentence, but

the Second Department affirmed.

       On October 31, 2006, petitioner filed the habeas petition at issue in this case in the

United States District Court for the Eastern District of New York. Concluding that the

trial judge had improperly admitted a hearsay document into evidence, the district court

(Raymond J. Dearie, Judge) granted petitioner’s application for the writ. The state

appeals, arguing that the Appellate Division’s affirmance of petitioner’s conviction was

not an “unreasonable application” of United States Supreme Court precedent within the

meaning of 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214 (“AEDPA”). We agree

and reverse the grant of habeas corpus.

                                     BACKGROUND

I. The Evidence at Trial

       Because this case centers on Walker’s various statements, including the hearsay

statement admitted at trial, it will be most useful to describe the facts as she told them at



                                               3
trial, including the inconsistencies in her account revealed on cross-examination and

through the admission of her written statement.

       A. Walker’s Testimony on Direct Examination

       The account in this section relies only on Walker’s sworn testimony given on

direct examination at trial. Walker is a dancer who, at all times relevant to the facts of

this case, worked part-time at an adult club called Sweet Cherry, located in the Sunset

Park neighborhood of Brooklyn. Walker met Omitogun, the victim of the burglary, soon

after moving into the apartment complex where they both resided in the Canarsie

neighborhood of Brooklyn. She had visited his apartment on two occasions, observed

that he had “fairly nice things,” and heard him brag about his car, jewelry, and brand-

name clothes.

       Walker met Evans’s co-defendant Merzier through a mutual friend three weeks to

a month prior to the evening of the burglary. That meeting was arranged so that Walker

could ask Merzier for a loan to pay her overdue rent, but Merzier was not able to lend her

the money at the time. She met Evans a few weeks before the burglary, and Foster only

one or two days before the crime.

       On August 15, 2001, Walker was at her apartment with the three defendants and

one of her coworkers, Diamond. During this gathering, Foster told the group that he

intended to rob Omitogun. Foster then went to the roof of Walker’s building to canvass

Omitogun’s apartment, which was accessible via the roof. He later commented on the

similarity of the layout of Walker’s and Omitogun’s apartments. Over the course of the

                                              4
evening, the group planned the burglary. Foster was to be the ringleader and direct the

burglary, Evans was to follow him into Omitogun’s apartment, and Merzier was to stay

behind in Walker’s apartment as a lookout and getaway driver. The proceeds from the

burglary were to be split among the defendants and Walker, whose share was promised in

exchange for allowing the burglars to use her apartment as a staging ground.

       The next day, in the evening of August 16, 2001,1 Walker was at home with

Diamond, Evans, and Merzier. As she entered her apartment, Walker received a phone

call from Omitogun, who said that he was at a friend’s apartment in the same building.

Omitogun asked Walker if she and other dancers from Sweet Cherry would be willing to

entertain him and several friends from out of town. Walker told Omitogun that she had to

be at work in approximately half an hour, but that she would come by his apartment

afterward. Evans, having overheard this conversation, stated that he intended to rob

Omitogun that night. Shortly thereafter, Merzier left the apartment, Walker and Diamond

took a taxi to work at Sweet Cherry, and Evans stayed behind at Walker’s apartment.

       Upon her arrival at the club, Walker was told that she was not allowed to work that

evening because she was late. Fearing for her safety, however, she decided to remain at

the club. Walker called Omitogun’s cell phone to arrange details related to her visit to

Omitogun’s apartment later that evening, particularly whether she and her coworkers

would be paid for their services. About an hour after her conversation with Omitogun,


       1
        Walker gave the date as August 17, but presumably this was a mistake, as all the
other evidence points to the burglary occurring late on the evening of August 16.

                                             5
Walker spoke on the phone with Merzier, who by that point had returned to Walker’s

apartment. Walker testified, over defense objections, that Merzier told her that Foster and

Evans were in Omitogun’s apartment robbing him. She also testified that she believed no

weapons would be used in the robbery.

       While returning home from work, Walker received a call from Omitogun.

Omitogun told her that he had been robbed. Another man, also on the phone, threatened

her with harm unless Omitogun’s money and belongings were returned. Shortly

thereafter, Walker had a series of telephone conversations with Merzier. Walker testified

(again over defense objections) that Merzier told her that he was unable to leave the

apartment complex because police cars and helicopters had surrounded the block.

       Rather than returning home, Walker and Diamond decided to go to the police

precinct because Walker feared Omitogun’s threats. She also feared that her role in the

plan might be uncovered. Upon arriving at the 69th Precinct, Walker spoke with a police

officer whose name she could not remember. She explained that she was being

threatened and requested an escort home but did not mention anything about the burglary

at Omitogun’s home. The police officer asked where Walker lived and, when told,

informed Walker there had been a homicide (apparently unrelated to the events at issue in

this case) on her block. As a result, all the other officers were unavailable at that time.

Walker left the station, but returned some time later, at which point she spoke with

Detectives Ahern and Rivera.



                                              6
       Over the course of approximately two days, Walker gave varying statements about

the events at issue in this case to the two detectives. Most importantly, she told Detective

Rivera that Evans and Foster (but not Merzier) had discussed robbing Omitogun. She

also gave details about the plan to Detective Rivera in a seven-page written statement,

which omitted her role in the discussions.

       B. Walker’s Testimony on Cross-Examination

       The facts in this section are drawn from Walker’s testimony on cross-examination,

during which defense counsel successfully elicited several inconsistencies in Walker’s

account, as well as contradictions between Walker’s testimony on direct examination and

various other statements she had given at different times about her role in the burglary.

The defendants sought on cross-examination to demonstrate that Walker was willing to

tell different stories at different times to serve her interests.

       Walker admitted that, when giving a statement to Detective Ahern, she “basically

lied and said [she] had nothing to do with” the burglary. She further testified that she did

not mention any of the defendants in her initial statement to Detective Ahern. She told

Detective Ahern that there was no one in her apartment and that nobody had her

permission to be there.

       Walker testified that, after she spoke with Detective Ahern, the police

accompanied her back to her apartment. Upon arriving there, they found the three




                                                7
defendants, who were then arrested for burglary of Walker’s apartment.2 When asked by

the police officers, Walker denied knowing the defendants except for Merzier. She then

swore out a complaint falsely stating that the defendants did not have permission to be in

her apartment that evening.

       Defense counsel did not ask Walker about the specific contents of the seven-page

written statement other than to ask whether her comments to Detective Rivera were

consistent with her testimony on direct examination. Walker did not testify about the

contents of the written statement other than to say that the statement she gave to Detective

Rivera was at least partially false.

       Finally, Walker admitted that she agreed to testify against the defendants in

exchange for a non-custodial sentence. Defense counsel also attempted to elicit

contradictions in Walker’s timeline of events and to raise questions about the true nature

of her profession and her relationships with Omitogun and Merzier. However, Walker

denied that she had misrepresented anything about those subjects.

       C. Walker’s Written Statement

       The state then called Detective Rivera. Over the objections of defense counsel,

Detective Rivera testified to the contents of Walker’s written statement. Defense counsel

argued that the statement’s contents were inadmissible because Walker had already



       2
        This testimony was consistent with that of a police officer, who testified that
upon entering Walker’s apartment, the police found Evans crouched in a corner, Foster
hiding in a closet, and Merzier lying on the bed.

                                             8
testified, because she could have been asked about the statement during her testimony,

and because to admit the statement’s contents as prior consistent statements would

constitute improper bolstering under New York law. After hearing arguments outside the

presence of the jury, the trial judge overruled the objections to Detective Rivera’s

testimony about the contents of the statement, and admitted the statement itself into

evidence on the theory that, by asking Walker whether she had lied when she gave the

statement to Detective Rivera, defense counsel had made a charge of recent fabrication.

The trial judge did not redact the written statement and did not limit the jury’s

consideration of the statement as substantive evidence to the extent it was consistent with

Walker’s testimony.

       The substance of the statement tracked much of Walker’s version of events on

direct examination, with the notable exclusion of any reference to Walker’s role in

facilitating the burglary. Walker stated that she had gone shopping the day of the incident

with Diamond, Merzier, and Evans. After being dropped at home, Diamond, Walker, and

Evans stayed at Walker’s apartment as the two women prepared for work. After leaving

for work, Walker received a phone call from Merzier informing her that Foster and Evans

were inside Omitogun’s apartment.

       At that point, Walker’s statement departed from the version she gave at trial. In

the written statement, Walker claimed that she had told them to leave Omitogun’s

apartment, and that Merzier assured her that they would. Additionally, she stated that

Evans did have permission to be in her apartment, which contradicted what she had told

                                              9
police at the apartment. The written statement also described in significant detail the

meeting during which the defendants discussed the proposed burglary and mentioned that

Evans had talked the week before about robbing her neighbor. The rest of Walker’s

statement was in line with the account given on direct examination, including the

threatening phone call from Omitogun and the threats made by Omitogun’s friend.3

       D. Other Evidence at Trial

       Also testifying at trial were the three victims: Omitogun and two of his friends,

who were at Omitogun’s apartment when the burglary took place. According to their

testimony, when the masked burglars entered the apartment, Omitogun was on the phone

with his girlfriend, who heard the burglary over the phone and informed the police. The

victims testified that the burglars restrained them with telephone cords as they took

valuables from the apartment. The burglars inflicted injuries on the victims that caused

broken bones and required stitches. Omitogun testified that, when the police arrived in

response to his girlfriend’s call, the burglars left the apartment through the upstairs

window, onto the roof. Further investigation showed footprints leading from Omitogun’s

window, including some in the direction of Walker’s apartment.

       Although the victims testified that the burglars had the same general build as

Foster and Evans, the victims did not see the burglars’ faces. Moreover, police were



       3
        In Walker’s written statement, she indicated that Merzier “didn’t seem as if he
really wanted to do it. It seemed like a more go with the flow type situation on his
behalf.” This exculpatory statement about Merzier was absent from her trial testimony.

                                              10
unable to match fingerprints found at the scene with any of those of the defendants.

Although footprints found on the roof were consistent with the boots worn by Evans and

Foster, a police expert was unable to conclude that they were in fact made by any of the

defendants.

       A few hours after finding the defendants in Walker’s apartment (during which time

the crime scene was unsecured), the police also found in Walker’s apartment Omitogun’s

briefcase (in the broiler of the stove), two loaded nine-millimeter handguns (underneath

the refrigerator, obscured by several articles of men’s clothing), $90,000 in cash (the

same amount Omitogun had reported missing), seven wristwatches (which Omitogun had

also reported missing), approximately twenty British pounds, and other personal effects

of Omitogun.

II. Procedural History

       After hearing the evidence recounted above, the jury returned a verdict convicting

Foster (who had fled during trial) and Evans; Merzier was acquitted of all charges. Evans

appealed, arguing that the admission of Walker’s statement into evidence represented

improper bolstering. The prosecution argued that the statement was admissible as a prior

consistent statement to refute a charge of recent fabrication.

       The Appellate Division held that the admission of Walker’s statement was error

because the statement did not predate her motive to lie. It additionally held that the

statement could not be admitted as a prior consistent statement, even if it had postdated

her motive to lie, since it was not entirely consistent with her testimony at trial. Finally, it

                                              11
held that, during their cross examination of Detective Rivera, defense counsel had

refrained from asking about the specific contents of the statement and therefore had

avoided “open[ing] the door” to the issue. People v. Evans, 792 N.Y.S.2d 112, 113 (2d

Dep’t 2005).

       The Appellate Division further held, however, that the error was harmless and did

not require reversal of petitioner’s sentence “because there is no reasonable probability

that the defendant would have been acquitted had the error not occurred,” as the

additional evidence adduced at trial “was overwhelming in establishing” petitioner’s

guilt. Id.

       Evans petitioned the district court for a writ of habeas corpus on October 31, 2006.

On September 22, 2011, the district court granted the petition. Evans v. Fischer, 816 F.

Supp. 2d 171 (E.D.N.Y. 2011). In granting the writ, the district court relied on what it

called the “due process guarantee of trial fairness.” Id. at 185. The district court

concluded that this federal constitutional guarantee is violated where the state trial court

misapplies state-law evidence rules in such a fundamental way that it interferes with a

criminal defendant’s ability to put on a defense. In particular, the district court concluded

that the cumulative effects of the admission of the hearsay statement were so prejudicial

to the outcome of the case that the statement’s admission was “not reconcilable with basic

conceptions of justice.” Id. at 204. In finding that AEDPA authorized relief under such

circumstances, the district court identified four Supreme Court cases that, in its view, the

Appellate Division unreasonably applied: Estelle v. McGuire, 502 U.S. 62 (1991);

                                             12
Dowling v. United States, 493 U.S. 342 (1990); Lisenba v. California, 314 U.S. 219

(1941); and Chambers v. Mississippi, 410 U.S. 284 (1973). According to the district

court, McGuire, Lisenba, and Dowling together stand for the proposition that serious

evidentiary errors can go to the fundamental fairness of a trial. The district court read

Chambers to say that “the cumulative nature of . . . errors embedded in [a] single

evidentiary ruling and their cumulative effect” can render a trial unfair. Evans, 816

F. Supp. 2d at 203-04. On the basis of these principles, which it took to be “embodied” in

clearly established federal law, Thaler v. Haynes, 130 S. Ct. 1171, 1173 (2010), the

district court granted the petition and ordered the state either to retry or release petitioner

within ninety days. Evans, 816 F. Supp. 2d at 204.

       The state filed a timely notice of appeal, and the district court’s order was stayed

pending appeal.

                                        DISCUSSION

I. Legal Principles

       We review a district court’s grant of a habeas application de novo. Langston v.

Smith, 630 F.3d 310, 314 (2d Cir. 2011). We focus on the state appellate court’s decision

and, for issues adjudicated on the merits in state court, we apply a “highly deferential

standard for evaluating state-court rulings.” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)

(internal quotation marks omitted).

       AEDPA authorizes a district court to grant an application for a writ of habeas

corpus based on an issue adjudicated on the merits by a state court only if the state

                                              13
proceedings “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 if they “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)(1)-(2). Before the district court, petitioner effectively

challenged only the state court’s conclusions of law and its application of those principles

to the facts of his case.

       The Supreme Court has made clear that when, as in this case, a petitioner seeks to

overturn a state court’s decision regarding “clearly established Federal law,” he may

pursue two distinct paths. First, a petitioner may show that a state court’s decision was

“contrary to” federal law, by demonstrating either (1) that the state court reached a

conclusion of law that directly contradicts a holding of the Supreme Court, or (2) that,

when presented with “facts that are materially indistinguishable from a relevant Supreme

Court precedent,” the state court arrived at a result opposite to the one reached by the

Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000).

       Alternatively, a petitioner may prevail by showing that a state court’s decision

involved an “unreasonable application” of federal law. A state court decision involves an

“unreasonable application” of federal law “if the state court identifies the correct

governing legal principle . . . but unreasonably applies that principle to the facts” of the

case before it. Id. at 413. An application of law is “unreasonable” only if it involves

“[s]ome increment of incorrectness beyond error.” Overton v. Newton, 295 F.3d 270,

                                              14
277 (2d Cir. 2002) (internal quotation marks omitted). Additionally, the Supreme Court

has made clear that the phrase “clearly established Federal law” refers to holdings, and

not dicta, of cases decided by the Supreme Court, as opposed to lower federal courts.

Williams, 529 U.S. at 412.

       Even apart from the requirements of AEDPA discussed above, to establish that an

erroneous application of state rules of evidence violates the federal guarantee of due

process, Evans must also demonstrate that the state court’s erroneous conclusions about

New York evidence law were so egregious as to implicate the Fourteenth Amendment’s

guarantee of due process. That guarantee, in this case, is one of “fundamental fairness,” a

principle that the Supreme Court has “defined . . . very narrowly.” Dowling, 493 U.S. at

352; see also McGuire, 502 U.S. at 72-73.

       In short, in this case Evans faces a doubly difficult challenge. The combination of

the Supreme Court’s “fundamental fairness” cases and the limited habeas jurisdiction

granted by AEDPA means that Evans must demonstrate that the effect of the admission of

Walker’s statement was so prejudicial to his defense that he was deprived of due process

and he must identify a Supreme Court case that clearly establishes that the admission of

evidence that improperly bolsters a prosecution witness’s testimony constitutes a

violation of the Fourteenth Amendment. Because no Supreme Court case requires such a

conclusion, we reverse the judgment of the district court.4


       4
        The district court relied heavily on cases that stand for the proposition that
admission of hearsay evidence in violation of either New York or federal evidence rules

                                            15
II. Application

       In this case, Evans does not identify any Supreme Court holding that the Appellate

Division’s decision might be “contrary to” in AEDPA’s sense. Rather, he contends that

the district court was correct in holding that the decision was an “unreasonable

application” of Supreme Court precedent. We thus turn to the district court’s analysis,

which we find unpersuasive.

       In granting petitioner’s application, the district court pointed to four Supreme

Court cases that it thought embodied principles that the Appellate Division unreasonably

applied. Evans, 816 F. Supp. 2d at 203. In McGuire and Dowling, the Supreme Court

rejected habeas petitions claiming violations of due process in cases that involved

evidentiary violations. In McGuire, the Court rejected the petitioner’s claim that the

admission as substantive evidence of prior-injury evidence – which would have been

properly used only to prove battered-child syndrome –“‘so infused the trial with

unfairness as to deny due process of law.’” 502 U.S. at 75, quoting Lisenba, 314 U.S. at

228. The Court found, in view of additional evidence presented at trial and the judge’s

instructions to the jury, that the evidentiary violations did not fall into the narrow



can infect proceedings and require a new trial. See People v. McClean, 69 N.Y.2d 426,
430 (1987); Tome v. United States, 513 U.S. 150, 167 (1995). But those cases do not
establish that the violation of evidence rules constitutes a violation of due process.
McClean is of course not a decision of the Supreme Court, and Tome explicitly limits its
holding “to the requirements for admission under [Federal] Rule [of Evidence]
801(d)(1)(B),” 513 U.S. at 167. Those cases therefore do not announce a constitutional
principle that federal courts can apply to § 2254 habeas petitions.

                                              16
“category of infractions that violate fundamental fairness.” Id. at 73 (internal quotation

marks omitted).

       Similarly, in Dowling, the Supreme Court rejected the petitioner’s claim that the

admission, pursuant to Fed. R. Evid. 404(b), of evidence of his role in a prior burglary

and assault, for which he was acquitted, violated the guarantee of fundamental fairness.

493 U.S. at 354. While the Court recognized “that the introduction of [this] evidence . . .

ha[d] the potential to prejudice the jury,” it framed the question as “whether it is

acceptable to deal with the potential for abuse through nonconstitutional sources like the

Federal Rules of Evidence, or whether the introduction of this type of evidence . . .

violates fundamental conceptions of justice.” Id. at 352 (internal quotation marks and

footnote omitted). At least in Dowling, the Supreme Court opted not to constitutionalize

this sort of evidentiary error. McGuire and Dowling therefore set precedents as to what

evidentiary errors would not violate due process, but they provide very limited guidance

as to which evidentiary errors would do so.

       These cases are consistent with Lisenba, in which the Supreme Court had earlier

considered whether due process was violated when evidence was admitted in violation of

state-law evidence rules. On the evidentiary issues, the Supreme Court rejected

petitioner’s claims and noted that it did “not sit to review state court action on questions

of the propriety of the trial judge’s action in the admission of evidence.” 314 U.S. at 228.

What the Court found most relevant to the petitioner’s claims in Lisenba was the

admission of confessions, allegedly obtained under duress, made by petitioner regarding

                                              17
crimes for which he was convicted; the question is therefore wholly distinct from the one

presented in the instant case. But even as to the admissibility of coerced confessions, the

Court rejected petitioner’s claims. Id. at 240-41. Not only does Lisenba not stand for the

proposition that the admission of hearsay evidence violates due process, its holding does

not embody a principle that could guide a federal court when granting an application for

habeas under AEDPA in a case such as this one.

       The district court also relied on Chambers v. Mississippi, which it took to embody

the principle that the erroneous admission of hearsay can defeat a defendant’s

fundamental right to present his own defense. But Chambers stands for the inverse

proposition: that in some cases the exclusion of hearsay proffered by a defendant in a

correct application of state rules of evidence can violate the guarantee of due process by

denying a defendant his right to present witnesses in his own defense. 410 U.S. at 302.

In that case, Mississippi’s “voucher” rule prohibited litigants from impeaching their own

witnesses. Because the state refused to call a witness who had previously confessed to

the crime for which Chambers was then being tried, he sought to introduce other evidence

of those prior third-party confessions. The operation of Mississippi’s hearsay rule

prohibited Chambers from doing so. Id. at 294. In these circumstances, the Court held,

the state’s evidence rules produced an unconstitutional result. Id. at 302. To rely on

Chambers for more than that is to ignore the Supreme Court’s interpretation of AEDPA’s




                                            18
“as determined by the Supreme Court” language to include only the holdings of – and not

the dicta contained in – its cases. See Williams, 529 U.S. at 412.5

       Finally, to the extent any of the cases on which the district court relied can be said

to provide a principle the Appellate Division unreasonably applied, such a principle

would be broad in nature. “[E]valuating whether a rule application was unreasonable

requires considering the rule’s specificity. The more general the rule, the more leeway

[state] courts have in reaching outcomes in case-by-case determinations.” Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004). We may assume, arguendo, that the admission of

hearsay statements, in some egregious instance, could render a trial fundamentally unfair

– though in most cases, the more specific provisions of the Confrontation Clause would

remedy such abuses.6 But the ruling in this case was hardly a clean example of such

abuse. The declarant, Walker, testified at trial and was extensively cross-examined about

the inconsistencies in her various statements; the hearsay statement added little of an

incriminating nature to Walker’s sworn and cross-examined in-court testimony, and its

inconsistencies with some details of that testimony added grist to the defense argument


       5
         We need not determine whether, in a case involving sufficiently egregious
evidentiary errors, a federal court could grant habeas relief notwithstanding that the
specific errors have not previously been held to violate due process by the Supreme
Court. This is not that case.
       6
        The Confrontation Clause is not implicated in this case, since the author of the
hearsay statement, Walker, testified at trial and was available for cross-examination,
presumably including further cross-examination after admission of the written statement,
which was not requested by defense counsel. See Crawford v. Washington, 541 U.S. 36,
53-54 (2004).

                                             19
that Walker was an unreliable witness; and Walker’s testimony (and thus the hearsay

statement) was corroborated by a wealth of other evidence. Under these circumstances,

assuming arguendo that Supreme Court cases establish a general principle that the

reliance on hearsay testimony to support a conviction can violate the requirement of due

process, we could not conclude that the state court’s affirmance of Evans’s conviction,

finding any state evidentiary error harmless and Evans’s trial fundamentally fair, was an

unreasonable application of that principle.

                                     CONCLUSION

       For the foregoing reasons, we conclude that the district court erred by granting

Evans’s application for the writ of habeas corpus. The judgment of the district court is

accordingly REVERSED, and the case remanded with instructions to dismiss the petition.




                                              20
