Habeas corpus; 28 USC § 2254(d)(1); Whether the admission of information provided by a non-testifying confidential informant (CI) violated the Confrontation Clause; Whether the statements were “testimonial hearsay”; Whether admitting the statements for a non-hearsay purpose “was contrary to or an unreasonable application of clearly established federal law” as determined by the Supreme Court; Antiterrorism & Effective Death Penalty Act (AEDPA) review; Effect of Sixth Circuit precedent; Gover v Perry

The court held that the state trial court’s decision to admit information provided by a non-testifying CI about where petitioner-Reed often hid his drugs did not violate the Confrontation Clause where it was offered to explain the testifying detective’s decision to search his roof and not to prove the truth of the matter asserted. A jury convicted Reed of drug trafficking, drug possession, firearm possession, and evidence tampering. His claim on appeal to the state courts alleged that the trial court violated his rights under the Confrontation Clause where it allowed a detective to testify that they had decided to search the gutters on Reed’s home based on a non-testifying CI’s description of where Reed sometimes stored his drugs. He argued that because he could not cross-examine the CI, his rights had been violated. The Ohio Court of Appeals disagreed, noting that the trial court had instructed the jury to only consider the CI’s information to explain why police checked the roof. The Ohio Supreme Court declined to take up the case. The district court dismissed his habeas petition, certifying the question whether the state trial court properly admitted the detective’s testimony about the CI’s information. The court held that the “statements here were not hearsay.” The matter asserted was “that Reed hid drugs in several places—including in the gutter. But the trial court did not admit the statement for its ‘truth’—that is, [it] did not admit the statement to show that Reed actually hid drugs in those places. Rather, the statement was admitted to explain why the police searched the roof. That’s a valid, non-hearsay purpose. And the trial court instructed the jury to consider the statements only insofar as they might explain the officer’s basis for searching the roof[.]” The court found that the “Supreme Court’s current precedent holds that the Confrontation Clause bars the use of testimonial hearsay. . . . Because the Ohio trial court admitted the [CI’s] statement for a non-hearsay purpose, there’s no Confrontation Clause problem here under that precedent.” The court noted that “Sixth Circuit precedent isn’t enough to surpass AEDPA’s re-litigation bar[,]” and further, in Gover it “denied habeas when a witness’s out-of-court statement was used to show why the police took certain actions” because there was not “a Supreme Court case on point.” Affirmed.