              Case: 13-10150     Date Filed: 02/06/2014   Page: 1 of 8


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-10150
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:11-cv-24171-DLG



WALTER LEE SILIMON,

                                                                Petitioner-Appellant,

                                     versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                              Respondent-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (February 6, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Walter Silimon, a state prisoner, appeals pro se the denial of his petition for

a writ of habeas corpus. See 28 U.S.C. § 2254. We granted a certificate of
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appealability to address whether a Florida court violated Silimon’s right of

confrontation under the Sixth and Fourteenth Amendments by admitting

testimonial hearsay in a hearing to revoke his probation. Because the decision of

the Florida court to admit the hearsay in a revocation hearing was not contrary to

or an unreasonable application of clearly established federal law, we affirm.

                                I. BACKGROUND

      While Silimon was serving a sentence of probation imposed by a Florida

court, Officer Nestor Lopez of the Florida City Police Department arrested Silimon

on a charge of domestic battery. A probation officer moved to revoke Silimon’s

probation for committing a new offense.

      A Florida court held a revocation hearing, but the victim of the domestic

battery, Latoya Smith, did not appear at the hearing. The prosecutor argued the

hearing could proceed because Officer Lopez would testify that he observed

Smith’s injuries and that Smith said she had been battered by Silimon. Silimon

objected and argued that the admission of Smith’s out-of-court statement

“obviously denie[d] . . . his Sixth Amendment right to confrontation,” as

interpreted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The

prosecutor responded that a more flexible standard of due process governed the

admission of testimonial evidence in a revocation proceeding, as explained in

Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972), and Gagnon


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v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759–60 (1973). The state court

likened Smith’s statement to that of an “excited utterance” and ruled that the

hearsay evidence was admissible because “Crawford does not apply in probation

violation hearings.”

      Silimon protested that Smith did “not [want] to prosecute this case.”

Silimon asserted that Smith had visited the office of the state attorney to withdraw

her complaint about the battery; she failed to appear for the revocation hearing

after having already “refused to come in on other subpoenas”; and his sister would

testify that Smith had recanted her story. The prosecutor responded that neither

she nor another prosecutor involved in the case had been contacted by Smith to

recant and, even if she had, it “wouldn’t prevent” Silimon’s revocation proceeding.

The state court agreed that Smith was “just a witness” who did not “deci[de]

[whether] to prosecute or not.”

      In support of its motion to revoke probation, the state presented the

testimonies of Silimon’s probation officers and Officer Lopez, the order of

probation signed by Silimon, and Smith’s written statement. Lopez testified about

being dispatched to the scene of an alleged domestic battery, where he found Smith

standing outside. Smith told Lopez that she was “mad” because Silimon had torn

her shirt, hit her in the face, and pulled her hair after she called the police, and then

Smith signed a written statement that described Silimon’s abuse. Lopez


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authenticated Smith’s written statement, and that statement was admitted into

evidence over Silimon’s objection. Lopez testified that he observed a red mark on

the left side of Smith’s face, her shirt was ripped, and her hair was “messed up.”

Lopez also recalled that, during the interview, Silimon told Smith not to “do this.”

      Silimon presented a defense. Silimon’s sister testified that she drove Smith

to the prosecutor’s office. Silimon testified that Lopez had remarked that Smith

had not been injured; Smith’s injuries had been self-inflicted; and his statement to

Smith not to “do this” meant that she should not “set [him] up.” In rebuttal, the

State recalled Lopez, who denied telling Silimon that Smith was uninjured.

      The state court revoked Silimon’s sentence of probation. The state court

credited Lopez’s testimony; discredited the testimonies of Silimon and his sister;

and rejected Silimon’s arguments that Smith had recanted her story and had signed

her written statement under duress. The state court considered “the exhibits

introduced by the State and the testimony,” which “was not simply hearsay, but

included observations by Officer Lopez,” and found that the “State ha[d] proved by

the greater weight of the evidence that [Silimon] willfully and substantially

violated terms of []his probation.” The Third District Court of Appeal affirmed.

Silimon v. State, 23 So. 3d 772 (Fla. Dist. Ct. App. 2009). The Florida courts also

denied Silimon’s motion for postconviction relief and ruled that the revocation




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hearing had afforded Silimon due process. Silimon v. State, 49 So. 3d 254 (Fla.

Dist. Ct. App. 2010).

      Silimon filed a federal petition for a writ of habeas corpus, which the district

court denied. The district court ruled, citing Morrissey and Gagnon, that “the

reliability of the proffered testimony continue[d] to” govern the admissibility of

hearsay evidence in a revocation hearing and that Smith’s out-of-court statement

was “well-corroborated by other admissible evidence.” In the alternative, the

district court ruled that Smith’s statement was admissible under the hearsay

exception for excited utterances.

                          II. STANDARD OF REVIEW

      We review de novo the denial of a petition for a writ of habeas corpus.

Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071 (11th Cir. 2013). A

federal court may not grant a writ of habeas corpus unless the decision of the state

court was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States

[or] 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). “[A]n

unreasonable application of federal law is different from an incorrect application of

federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522

(2000).


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                                 III. DISCUSSION

      Silimon argues that the decision of the Florida courts is contrary to the

decisions of the Supreme Court in Morrissey and Gagnon. Silimon argues that the

state failed to comply with those precedents when it denied him the opportunity to

cross-examine Smith about her “direct knowledge of the alleged incident” and

failed to produce Smith for the revocation hearing. Silimon contends that the trial

court should have balanced his right of confrontation against the interest of the

state and made a “particularized finding” of good cause to admit Smith’s out-of-

court statement.

      The Confrontation Clause of the Sixth Amendment guarantees an individual

the right to confront witnesses against him. Crawford, 541 U.S. at 38, 124 S. Ct. at

1357. But the right to confrontation is not absolute; the Clause guarantees the right

of confrontation only in “criminal prosecutions.” U.S. Const. amend. VI.

      A probationer charged with violating a term of his probation is not entitled

to the same procedural protections afforded the accused in a criminal trial. See

Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759–60; Morrissey, 408 U.S. at 480, 92 S.

Ct. at 2600. Because a “[p]robation revocation . . . is not a stage of a criminal

prosecution,” Gagnon, 411 U.S. at 782, 93 S. Ct. at 1759–60, a probationer is

afforded the minimum requirements of due process, which entitles him to

disclosure of the evidence against him and a hearing at which he can present


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evidence and “confront and cross-examine witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation),” Morrissey, 408 U.S.

at 489, 92 S. Ct. at 2604. That hearing must be “structured to assure that the

finding of a . . . violation will be based on verified facts and that the exercise of

discretion will be informed by an accurate knowledge of the [probationer’s]

behavior,” id. at 484, 92 S. Ct. at 2602, and should involve a “process . . . flexible

enough to consider evidence including letters, affidavits, and other material that

would not be admissible in an adversary criminal trial,” id. at 489, 92 S. Ct. at

2604. See Gagnon, 411 U.S. at 783 n.5, 93 S. Ct. at 1760 n.5 (“[W]e emphasize

that we did not in Morrissey intend to prohibit use where appropriate of the

conventional substitutes, including affidavits, depositions, and documentary

evidence.”).

      The Florida courts decided that Silimon’s revocation hearing afforded him

due process, and that decision is not contrary to or an unreasonable application of

clearly established federal law. Because the hearing to revoke Silimon’s probation

was “not part of a criminal prosecution,” he was not entitled to “the full panoply of

rights” that would prohibit the introduction of Smith’s out-of-court statement, and

the revocation hearing could proceed without Smith. See Morrissey, 408 U.S. at

480, 92 S. Ct. at 2600. And the trial court determined that good cause existed to

admit the hearsay evidence when Smith failed to appear for the revocation hearing.


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The trial court found that Smith’s out-of-court statement that she was battered by

Silimon was corroborated by her written statement and Lopez’s personal

observations. The trial court also found “no credible evidence” to support

Silimon’s assertions that Smith’s injuries were self-inflicted and that her statement

was made under duress. Silimon faults the trial court for failing to balance his

interest in confrontation with the good cause of the state to proceed, but the

decisions cited by him that apply a balancing test involve the revocation of

supervised release by federal courts. Silimon references no clearly established

federal law that requires a state court to balance the interests of the parties before

admitting hearsay evidence in a hearing to revoke probation. See Williams, 529

U.S. at 412, 120 S. Ct. at 1523 (stating that “clearly established federal law” in

section 2254(d) “refers to the holdings, as opposed to the dicta, of [the decisions of

the United States Supreme Court] as of the time of the relevant state-court

decision”). The district court correctly denied Silimon’s petition.

                                 IV. CONCLUSION

      We AFFIRM the denial of Silimon’s petition for a writ of habeas corpus.




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