PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor,
Petition for writ of certiorari to the United States Court of
Appeals for the Sixth Circuit denied.
SCALIA, with whom JUSTICE THOMAS and JUSTICE ALITO join,
dissenting from denial of certiorari.
criminal defendant " shall enjoy the right . . . to be
confronted with the witnesses against him." U.S. Const.,
Amdt. 6. We have held that this right entitles the accused to
cross-examine witnesses who testify at trial, and to exclude
certain out-of-court statements that the defendant did not
have a prior opportunity to cross-examine. Crawford
v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004); Davis v. Alaska,
415 U.S. 308, 315-317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
We have never held -- nor would the verb " to
confront" support the holding -- that confrontation
includes the right to admit out-of-court statements
into evidence. Nevertheless, the Sixth Circuit held not only
that the Confrontation Clause guarantees the right to admit
such evidence but that our cases have " clearly
established" as much. We should grant certiorari and
Junior Fred Blackston was convicted in Michigan state court
of first-degree murder on the strength of the testimony of
five people, some of whom participated in the crime. For
reasons not relevant here, the court ordered a new trial.
Before Blackston's retrial, however, two of the five
witnesses signed written statements recanting their trial
testimony. The prosecution called them at the second trial,
but they refused to answer any questions. The trial court
therefore pronounced them " unavailable" and,
pursuant to a venerable hearsay exception, see Mich. Rule
Evid. 804(b)(1) (2012); cf. 5 J. Wigmore, Evidence §
1370, p. 55 (J. Chadbourn rev. 1974), allowed their earlier
testimony to be read to the jury. But the court refused to
admit into evidence their written recantations.
S.Ct. 389] Blackston was once again convicted of first-degree
murder and sentenced to life imprisonment. Affirming the
conviction, the Supreme Court of Michigan held that the trial
court's exclusion of the recantations was not error and,
even if it was, was harmless beyond a reasonable doubt. 481
Mich. 451, 751 N.W.2d 408 (2008).
petition for federal habeas relief followed. The District
Court conditionally [193 L.Ed.2d 450] granted the writ,
finding that the exclusion of the recantations violated
Blackston's Sixth and Fourteenth Amendment rights. 907
F.Supp.2d 878 (ED Mich. 2012). A divided Sixth Circuit panel
affirmed. 780 F.3d 340 (2015). In the Court of Appeals'
view, " [t]here is a clearly established right to
impeach the credibility of an adverse witness using the
witness's own inconsistent statements."
Id., at 348. The recantations, reasoned the court,
were inconsistent statements that had obvious impeachment
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
prohibits federal courts from granting habeas relief unless
the state court's decision " 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)
(emphasis added). As the dissenting judge below pointed out,
no case of ours establishes, clearly or otherwise, that the
Confrontation Clause bestows a right to admit this
kind of evidence. 780 F.3d, at 363-364 (opinion of Kethledge,
J.). In fact we long ago suggested just the opposite.
Mattox v. United States, 156 U.S. 237,
245-250, 15 S.Ct. 337, 39 L.Ed. 409 (1895). Each of the cases
the Sixth Circuit relied on involved the defendant's
attempting during cross-examination to impeach testifying
witnesses, not unavailable declarants. See
Olden v. Kentucky, 488 U.S. 227, 230, 109
S.Ct. 480, 102 L.Ed.2d 513 (1988) ( per curiam );
Delaware v. Van Arsdall, 475 U.S. 673, 676,
106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Alford v.
United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75
L.Ed. 624 (1931). And just recently we said in
Nevada v. Jackson, 569 U.S. ___, ___, 133
S.Ct. 1990, 186 L.Ed.2d 62, 68 (2013) ( per curiam
), that " this Court has never held that the
Confrontation Clause entitles a criminal defendant to
introduce extrinsic evidence for impeachment
purposes." The Sixth Circuit thought the recantations
here intrinsic, not extrinsic, and so beyond Jackson
's ambit. That is quite irrelevant. The pertinent
question under AEDPA is whether our cases have clearly
established a right, not whether they have failed to clearly
may well be a plausible argument why the recantations ought
to have been admitted under state law. See Mich. Rule Evid.
806. But nothing in our precedents clearly establishes their
admissibility as a matter of federal constitutional law.
AEDPA " provides a remedy for instances in which a state
court unreasonably applies this Court's
precedent; it does not require state courts to
extend that precedent or license federal courts to
treat the failure to do so as error." White v.
Woodall, 572 U.S. ___, ___, 134 S.Ct. 1697, 188
L.Ed.2d 698, 702 (2014). By framing the confrontation right
at a high level of generality (making it the right " to
impeach the credibility of an adverse witness" ), the
Sixth Circuit in effect " transform[ed] . . . [an]
imaginative extension of existing case law into 'clearly
established'" law. Jackson, supra,
at ___, 133 S.Ct. 1990, 186 L.Ed.2d 62, 68). That will not
Sixth Circuit seems to have acquired a taste for disregarding
AEDPA. E.g., Woods v. Donald, 575
U.S. ___, 135 S.Ct. 1372, 191 L.Ed.2d 464 (2015) ( per
curiam ); White v. Woodall,
supra ; Burt v. Titlow, 571 U.S.
___, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013); [136 S.Ct. 390]
Metrish v. Lancaster, 569 U.S. ___, 133
S.Ct. 1781, 185 L.Ed.2d 988 (2013); Howes v.
Fields, 565 ...