           Case: 12-12247   Date Filed: 02/07/2013   Page: 1 of 3

                                                      [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-12247
                        Non-Argument Calendar
                     _________________________


                  D.C. Docket No. 1:07-cv-00797-RWS


BILLY RAY ROBERTSON,
                                                           Petitioner-Appellant,
                                  versus
WARDEN,
                                                          Respondent-Appellee.


                       ________________________

               Appeal from the United States District Court
                   For the Northern District of Georgia
                     _________________________


                            (February 7, 2013)
BEFORE TJOFLAT, PRYOR and EDMONDSON, Circuit Judges.
              Case: 12-12247     Date Filed: 02/07/2013   Page: 2 of 3




PER CURIAM:



      Billy Ray Robertson, a Georgia inmate convicted of felony murder and other

charges in 1993, appeals the denial of his petition for a writ of habeas corpus under

28 U.S.C. § 2254. He argues that the admission, during his state court trial, of

statements given by a co-conspirator to a confidential informant years after the

completion of the conspiracy violated his rights under the Confrontation Clause.

He argues that his co-conspirator’s statements introduced at his trial in 1995

violated his rights under the Confrontation Clause because they were testimonial in

the light of recent Supreme Court precedent.

      The Sixth Amendment protects a criminal defendant’s right to confront the

witnesses against him. U.S. Const. amend VI. The Supreme Court explained in

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),

that the Sixth Amendment prohibits the introduction of out-of-court testimonial

statements unless the declarant is unavailable to testify and the defendant had a

prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 124

S.Ct. at 1374. The Crawford opinion cited Bourjaily as an example of a case

where non-testimonial statements were properly admitted. Id. at 58, 124 S.Ct. at

1368. In Bourjaily, the Supreme Court determined that a co-conspirator’s


                                          2
                 Case: 12-12247        Date Filed: 02/07/2013        Page: 3 of 3

unwitting statements to an undercover agent were admissible at trial even though

the defendant did not have an opportunity to cross-examine the co-conspirator.

Bourjaily v. United States, 483 U.S. 171, 181-84, 107 S.Ct. 2275, 2782-83, 97

L.Ed.2d 144 (1987).

       In United States v. Underwood, 446 F.3d 1340 (11th Cir. 2006), we wrote

that a statement is testimonial if it was 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 1347. Finding that a declarant made

statements to a confidential informant without the reasonable belief “that his

statement would be available for use at a later trial,” we concluded that the

statements by the co-conspirator to the confidential informant were not testimonial.

Id. at 1347-1348.

       Applying Crawford and conducting a de novo review, * we reach the same

conclusion as the district court. The pertinent statements in this case -- whether or

not they met Georgia’s hearsay exception -- were not testimonial. Accordingly,

they were admissible under the Confrontation Clause.


       AFFIRMED.

*
  The standard of review (that is, whether deference should be given to the pertinent state
decision) to be applied in this case might be debatable. So, we use a de novo standard to give
Petitioner -- for discussion sake -- his best position. A court can reject a petition using de novo
review because any such claim must also fail under deferential review. Berghuis v. Thompkins,
130 S.Ct. 2250, 2265, 176 L.Ed.2d 1098 (2010); Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d
740, 753 (11th Cir. 2010).
                                                 3
