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` Cite as: 577 U. S. ____ (2015)
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`SCALIA, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
`LLOYD RAPELJE, WARDEN v. JUNIOR FRED
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`BLACKSTON
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`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
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`No. 15–161. Decided November 30, 2015
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`The petition for a writ of certiorari is denied.
`JUSTICE SCALIA, with whom JUSTICE THOMAS and
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`JUSTICE ALITO join, dissenting from denial of certiorari.
`A criminal defendant “shall enjoy the right . . . to be
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`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. Craw-
`ford v. Washington, 541 U. S. 36, 50–51 (2004); Davis v.
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`Alaska, 415 U. S. 308, 315–317 (1974). We have never
`held—nor would the verb “to confront” support the hold-
`ing—that confrontation includes the right to admit out-of-
`court statements into evidence. Nevertheless, the Sixth
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`Circuit held not only that the Confrontation Clause guar-
`antees the right to admit such evidence but that our cases
`have “clearly established” as much. We should grant
`certiorari and summarily reverse.
`Respondent Junior Fred Blackston was convicted in
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`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 state-
`ments 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
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` RAPELJE v. BLACKSTON
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`SCALIA, J., dissenting
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`“unavailable” and, pursuant to a venerable hearsay ex-
`ception, see Mich. Rule Evid. 804(b)(1)
`(2012); cf.
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`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.
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`Blackston was once again convicted of first-degree mur-
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`der 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).
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`This petition for federal habeas relief followed. The
`District Court conditionally 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 af-
`firmed. 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
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`obvious impeachment value.
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`The Antiterrorism and Effective Death Penalty Act of
`1996 (AEDPA) prohibits federal courts from granting
`habeas relief unless the state court’s decision “involved an
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`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 estab-
`lishes, 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
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`suggested just the opposite. Mattox v. United States, 156
`U. S. 237, 245–250 (1895). Each of the cases the Sixth
`Circuit relied on involved the defendant’s attempting
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` Cite as: 577 U. S. ____ (2015)
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`SCALIA, J., dissenting
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`during cross-examination to impeach testifying witnesses,
`not unavailable declarants. See Olden v. Kentucky, 488
`U. S. 227, 230 (1988) (per curiam); Delaware v. Van Ars-
`dall, 475 U. S. 673, 676 (1986); Alford v. United States,
`282 U. S. 687, 693 (1931). And just recently we said in
`Nevada v. Jackson, 569 U. S. ___, ___ (2013) (per curiam)
`(slip op., at 7), 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 foreclose it.
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`There may well be a plausible argument why the recan-
`tations 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 fed-
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`eral 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 ex-
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`tend that precedent or license federal courts to treat the
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`failure to do so as error.” White v. Woodall, 572 U. S. ___,
`___ (2014) (slip op., at 11). By framing the confrontation
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`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 exten-
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`sion of existing case law into ‘clearly established’” law.
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`Jackson, supra, at ___ (slip op., at 7). That will not do.
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`The Sixth Circuit seems to have acquired a taste for
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`disregarding AEDPA. E.g., Woods v. Donald, 575 U. S.
`___ (2015) (per curiam); White v. Woodall, supra; Burt v.
`Titlow, 571 U. S. ___ (2013); Metrish v. Lancaster, 569
`U. S. ___ (2013); Howes v. Fields, 565 U. S. ___ (2012). We
`should grant certiorari to discourage this appetite.