Johnel Bailey v. Ana Ramirez

Johnel Bailey appeals the district court’s denial of his habeas corpus petition under 28 U.S.C. § 2254 . We affirm.

I

Bailey’s Sixth Amendment rights were not violated by the ex parte hearing at which the court decided whether to detain or release Troy Horton after his arrest on a bench warrant. The proceeding was not adversarial in nature but instead, concerned how the court would enforce its orders. Bailey’s rights were not directly affected. He points to no Supreme Court precedent that would make this a critical stage of the prosecution at which his lawyer had to be present. Cf. United States v. Wade, 388 U.S. 218, 236-37 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967) ((post-indictment lineup) constituted a critical stage); Hamilton v. Alabama, 368 U.S. 52, 53-55 , 82 S.Ct. 157 , 7 L.Ed.2d 114 (1961) (arraignment); Estelle v. Smith, 451 U.S. 454, 470-71 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981) (competency hearing for adverse child witness). Consequently, Bailey’s right to counsel was not offended.

II

Under the pre-Crawford law applicable to this case, the prosecutor was required to demonstrate Horton’s unavailability before introducing his pre-trial, cross-examined testimony.…