United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 22, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-70035
____________
JOSEPH ROLAND LAVE, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Joseph Lave appeals the district court’s denial of his habeas petition under 28 U.S.C. § 2254.
He argues that his Sixth Amendment rights were violated under a retroactive application of the
Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), which held that
testimonial, out-of-court statements are inadmissible unless the witness is unavailable to testify and
the defendant has had a prior opportunity to cross-examine the witness about the statement. Id. at
59.
The facts of this case were detailed in our previous opinion granting Lave a certificate of
appealability. See Lave v. Dretke, 416 F.3d 372 (5th Cir. 2005). At Lave’s capital murder trial,
Officer Kevin Hughes, one of the state’s witnesses, testified as to a statement by one of Lave’s
alleged accomplices. In the course of an interrogation, the accomplice told Officer Hughes that Lave
committed the murder. A jury convicted Lave, and he was sentenced to death. The conviction and
sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals, and the Supreme
Court denied his petition for a writ of certiorari. Lave filed for state habeas corpus relief, which was
also denied.
Lave then sought federal habeas relief. The district court referred the case to a magistrate
judge, who, on the day after Crawford was announced, issued a report and recommendation to deny
the petition. In his objections to the magistrate’s report, Lave argued for the first time that Officer
Hughes’s testimony violated his right to confrontation under the Sixth Amendment. The district court
denied the petition, holding in part that Crawford does not apply retroactively. We granted a
certificate of appealability on that single issue, reserving the question of whether the district court
abused its discretion by not staying the proceedings so that Lave could return to state court and
exhaust his state remedies as to his Crawford claim. See Lave, 416 F.3d at 382.
“In reviewing a ruling on the merits of a habeas claim, the district court’s findings of fact are
reviewed for clear error; its conclusions of law, de novo.” Schaetzle v. Cockrell, 343 F.3d 440, 443
(5th Cir. 2003). Under Teague v. Lane, 489 U.S. 288 (1989), courts should not apply a new rule of
criminal procedure on collateral review unless it falls into one of two narrow categories. See Beard
v. Banks, 542 U.S. 406, 416 (2004). The first category is for rules “forbidding punishment of certain
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primary conduct” or for rules “prohibiting a certain category of punishment for a class of defendants
because of their status or offense.” Id. (internal quotation and alteration omitted). The second
category is for “watershed rules of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Id. at 417 (quoting O’Dell v. Netherland, 521 U.S. 151, 157
(1997)). Lave argues that the rule announced in Crawford was new and that it falls within the second
exception to the general rule that new rules of criminal procedure should not be applied retroactively
to cases on collateral review.1
A case announces a new rule when it “breaks new ground or imposes a new obligation on the
States or the Federal Government.” Teague, 489 U.S. at 301. Before Crawford, testimonial out-of-
court statements could be presented to the jury if the court deemed them reliable. Crawford, 541
U.S. at 62 (describing the test established in Ohio v. Roberts, 448 U.S. 56 (1980)). As the
government concedes, Crawford overruled Roberts as that case applies to testimonial statements.
See Bintz v. Bertrand, 403 F.3d 859, 866 (7th Cir. 2005) (“It seems clear that Crawford was a clean
break from the line of precedent established by Roberts.”). Because Crawford changed the test for
the admissibility of certain out-of-court statements, it imposes new obligations on state and federal
courts and qualifies as a new rule of criminal procedure.
Lave asserts that the rule announced in Crawford implicates the fundamental fairness and
accuracy of criminal proceedings. He stresses that in Crawford, the Supreme Court described the
right to confrontation as a “bedrock procedural guarantee” and the admission of out-of-court
testimonial statements as a “core confrontation violation[].” See Crawford, 541 U.S. at 42, 63. The
1
Lave makes no argument that Crawford falls into the first exception, which applies
to rules that “are more accurately described as substantive rules not subject to Teague’s bar.” Beard,
542 U.S. at 411 n.3 (citation omitted).
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Court has explained, however, that the conclusion “[t]hat a new procedural rule is ‘fundamental’ in
some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate
conviction is seriously diminished.’” Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quoting
Teague, 489 U.S. at 313). In other words, Teague analysis is at least partially comparative and
requires assessing the risk of false conviction under the old rule against that risk under the new rule.
Lave asserts that the Crawford rule improves the accuracy of criminal proceedings because
it excludes custodial statements by alleged accomplices unless the defendant has had a prior
opportunity to cross-examine that alleged accomplice. He claims that, because such statements are
highly unreliable and presumptively suspect, the rule uniquely enhances the accuracy of a trial. See
United States v. Flores, 985 F.2d 770, 780 (5th Cir. 1993) (explaining that testimonial, accusatory
statements made to non-undercover police are unreliable because the declarant has a strong incentive
to shift blame and curry favor with prosecutors).
Lave’s argument, however, does not show that the Roberts regime “so seriously diminishe[d]
accuracy that there [was] an impermissibly large risk of punishing conduct the law does not reach.”
Summerlin, 542 U.S. at 355-56 (internal quotations and citations omitted). Out-of-court testimonial
statements were not indiscriminately presented to juries under the Roberts regime. Indeed, they were
inadmissible unless they bore adequate “indicia of reliability.” Roberts, 448 U.S. at 66. Because only
those statements that were deemed reliable could be admitted under Roberts, the fact that the class
of statements as a whole is suspect does not demonstrate that Roberts created an impermissible risk
of false conviction.
By its own terms, Crawford does not purport to announce a rule that increases the reliability
of trial testimony. The opinion states, “the [Confrontation] Clause’s ultimate goal is to ensure
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reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.” 541 U.S. at 61. As other circuits have held, the rule announced in
Crawford does not assure greater accuracy because it bars admission of a statement to which it
applies even when the statement is highly reliable. See Murillo v. Frank, 402 F.3d 786, 790 (7th Cir.
2005) (“The point of Crawford is not that only live testimony is reliable, but that the [S]ixth
[A]mendment gives the accused a right to insist on live testimony, whether that demand promotes
or frustrates accuracy.” ); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (“Because Teague’s
test of a watershed rule requires improvement in the accuracy of the trial process overall, we conclude
that Crawford is not a watershed rule . . . [and] should not be applied retroactively on collateral
review.”).
The rule announced in Crawford does not implicate the fundamental fairness and accuracy of
criminal proceedings. While it may implicate the core of the confrontation right, it is not a rule
without which there is an impermissibly high risk of false conviction. In so holding, we join the
majority of other circuits that have held or suggested that Crawford should not be applied
retroactively. See McGonagle v. United States, 137 Fed. Appx. 373 (1st Cir. 2005) (unpublished
opinion); Murillo, 402 F.3d 786; Dorchy v. Jones, 398 F.3d 783 (6th Cir. 2005); Mungo, 393 F.3d
327; Brown v. Uphoff, 381 F.3d 1219 (10th Cir. 2004); Evans v. Luebbers, 371 F.3d 438 (8th Cir.
2004). But see Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005).
Because Crawford does not apply to this case, the district court did not abuse its discretion
by refusing to stay the proceedings while Lave presented his Crawford claim to a state habeas court.
See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005) (explaining that a district court
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should not stay proceedings to permit a habeas petitioner to exhaust state claims when such claims
are “plainly meritless”). Accordingly, we AFFIRM the judgment of the district court.
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DeMOSS, Circuit Judge, dissenting:
I would hold that Crawford is retroactive because it creates a watershed rule of criminal
procedure that affects the fundamental fairness and accuracy of a criminal proceeding. See Teague,
489 U.S. at 311-12; see also Banks, 542 U.S. at 417. The majority notes the aspects of Crawford,
particularly its break from the prior Roberts line, that make it a new rule. I part ways from the
majority’s conclusion that Crawford does not affect the fundamental fairness and accuracy of criminal
proceedings. In my view, the Crawford majority opinion itself explains that the rule adopted therein
affects fundamental fairness and accuracy of criminal proceedings, and as such, the rule satisfies the
second Teague exception. The following quotation is just one of several establishing this point,
To be sure, the [Confrontation] Clause’s ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands, not
that evidence be reliable, but that reliability be assessed in a particular manner: by
testing in the crucible of cross-examination. The Clause thus reflects a judgment, not
only about the desirability of reliable evidence . . . but about how reliability can best
be determined.
Crawford, 541 U.S. at 61.
Having declared the constitutional guarantee to protect the procedure deemed best-suited for
the determination of a testimonial statement’s reliability as to the truth, Crawford itself forecloses the
conclusion that the accuracy of criminal proceedings is not centrally affected by adherence to the rule
announced. Furthermore, the Crawford majority makes clear that fundamental fairness is crippled
— to say nothing of affected — by the absence of Crawford’s rule requiring confrontation, that is,
“the only indicium of reliability sufficient to satisfy constitutional demands.” Id. at 69. Without
confrontation in such cases, “the likelihood of an accurate conviction is seriously diminished.” See
Schriro, 542 U.S. at 352 (citing Teague, 489 U.S. at 311). As such, Crawford falls clearly within
Teague’s second exception permitting retroactivity. Accordingly, the district court erred in
concluding that Crawford is not retroactive.
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