Justin Atkins v. Timothy Hooper, Warden

Case: 19-30018 Document: 00515624910 Page: 1 Date Filed: 11/03/2020

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 19-30018
Fifth Circuit

FILED
November 3, 2020

JUSTIN TERRELL ATKINS, Lyle W. Cayce
Clerk
Petitioner - Appellant

v.

TIMOTHY HOOPER, Warden, Elayn Hunt Correctional Center,

Respondent - Appellee

Appeal from the United States District Court
for the Western District of Louisiana

ON PETITION FOR REHEARING
Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
The previous opinion is withdrawn. See Atkins v. Hooper, 969 F.3d 200
(5th Cir. 2020). A Louisiana inmate appeals the district court’s denial of
habeas relief based on a Confrontation Clause violation. We AFFIRM.

FACTS AND PROCEDURAL BACKGROUND
A jury convicted Justin Terrell Atkins of armed robbery and aggravated
battery. The conviction was affirmed on appeal, then the Louisiana Supreme
Court denied review. State v. Atkins, 74 So. 3d 238 (La. Ct. App. 2011), writ
denied, 82 So. 3d 284 (La. 2012) (mem.). Our factual summary is taken from
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the Louisiana court of appeal decision. Id. at 239. The issue in this appeal
concerns the evidence identifying Atkins. For purposes of describing the
events, we assume Atkins was one of the participants.
Robert Jones, Howard Bishop, and Tom Harris were drinking alcohol
together at Jones’s house. Atkins knew that Bishop and Jones had just
returned to the house after Jones cashed a check. After kicking in the door to
the house, Atkins demanded money, but Jones refused. Atkins began beating
Jones with the butt of a firearm. When Harris intervened, Atkins hit him too.
Bishop witnessed the incident and saw Atkins take money from Jones’s pocket.
During the robbery, Lawrence Horton was at the door to Jones’s house. Horton
had followed Jones and Bishop and saw Jones cash his check.
That night, neither Bishop nor Harris could give the actual names of the
men involved in the crime. They were able to inform police, though, of their
nicknames and added that the person who hit Harris and Jones had been
wearing an orange shirt. Harris within a few days learned Horton’s name and
informed police. Eight days after the crime, Horton surrendered himself to
police. When questioned by Detective Jeffrey Dowdy, Horton admitted to being
one of the offenders but said Atkins was primarily responsible for the crime.
Detective Dowdy then obtained an arrest warrant for Atkins. Horton’s
statements were the first ones to name Atkins and the only ones Detective
Dowdy used when obtaining an arrest warrant.
It was almost two weeks after the incident before either Bishop or Harris
named Atkins. By that time, Atkins had already been arrested. Harris
testified that a neighbor who lived below his apartment provided Harris with
a picture of a man holding the neighbor’s baby. The man in the photograph
was Atkins. Harris believed that this photograph was of the person involved
in the crime who had been wearing an orange shirt. He provided it to police.

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The officers then asked Bishop to examine a photographic lineup, and Bishop
chose the picture of Atkins. Whether Harris had earlier shown the photograph
to Bishop is disputed, as we will discuss. This testimony was presented at trial,
and a jury convicted Atkins for his role in the crime. The conviction was
affirmed on direct appeal.
Atkins filed for state post-conviction relief in which he contended that he
was denied his right to confront and cross-examine Horton when hearsay
evidence was presented at trial. The claim focuses on the State’s opening
statement, the testimony of Detective Dowdy, and the State’s closing
argument.
The prosecutor made these assertions in his opening statement:
Finally, I believe the State will have the testimony of Lawrence
Horton. Lawrence Horton is a co-defendant in this case. That he
was arrested for this offense as well as the defendant in this case.
I believe that he will tell you that he and the defendant met on the
morning of January 2nd, 2009. That they went ultimately to 1710
Jackson Street wherein the defendant, Mr. Atkins over here,
busted the door in at 1710 and robbed and beat the victims while
he himself, Mr. Horton, served as a lookout. And I believe that will
– you will anticipate that testimony as well.
Detective Dowdy at trial was allowed to imply, but not directly state,
that Horton had told Dowdy that Atkins was his accomplice in the crime:
Q. Okay. And did you in fact speak with Lawrence Horton?
A. Yes, sir, I did.
Q. All right. Was he advised of his rights?
A. Yes, sir, he was.
Q. And did he provide a statement to you?
A. Yes, sir, he did.
Q. Was the statement inculpatory? Did he –
A. Yes, sir, it was.

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Q. Okay. Did he implicate anybody else?
A. Yes, sir, he did.
Q. Okay. As a result of this – well, all right, he implicated someone
else. What did you do next with regard to your investigation?
A. Based on the – the information that he provided he was arrested
and again, based on the information that he provided I was able
to obtain a warrant.
Q. For whom?
A. Justin Atkins.
Harris and Bishop testified for the State, identifying Atkins but
admitting to being intoxicated at the time of the robbery. The State rested
without calling Horton after indicating in its opening statement that he would
testify. The State’s brief here, written by the assistant district attorney
handling the trial, said that Horton was interviewed after the opening
statement. As a result, “the undersigned counsel felt Mr. Horton was not a
credible witness and decided not to call Mr. Horton.”
Atkins presented only one witness, Darrell Williams, whose testimony
contradicted parts of Harris’ and Bishop’s recollections of details leading up to
the assault and robbery. Williams also testified that a man in an orange shirt
had been outside Jones’s house just before the attack on Harris and Jones, but
he could not identify that man as Atkins. During closing argument, the
prosecutor stated that Detective Dowdy “interview[ed] Lawrence Horton, who
[was] known as O and then obtain[ed] an arrest warrant for Justin Atkins, the
defendant.” Detective Dowdy’s testimony and the State’s effort to make certain
by its argument that jurors understood the implications about what Horton
really told Detective Dowdy are the facts underlying the claim before us.
Atkins was convicted, and the judgment was affirmed on appeal.

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The state district court denied Atkins’ application for post-conviction
relief. Both the state court of appeal and supreme court denied Atkins’ writ
applications. Atkins filed a federal habeas application, claiming that he was
denied his Sixth Amendment right to confrontation. A magistrate judge
recommended that Atkins’ application be denied. The district court adopted
the report, dismissed Atkins’ application, and denied Atkins a Certificate of
Appealability. Atkins timely appealed. This court granted Atkins the right to
appeal his Confrontation Clause claim.

DISCUSSION
Atkins contends the state court’s decision denying his Sixth Amendment
Confrontation Clause claim was contrary to and involved an unreasonable
application of Supreme Court precedent. Atkins also argues the State waived
any harmlessness argument and, regardless, the error was harmful. We first,
though, consider whether the State waived a defense of procedural default.

I. Waiver of defense of procedural default
The federal district court strongly recommended that the State analyze
whether Atkins’ request for relief was barred by procedural default and asked
the State to address this possible defense. The district court’s urging may have
been because procedural default was one of the grounds on which the Louisiana
Supreme Court denied state habeas relief. State ex rel. Atkins v. State, 227 So.
3d 251, 251 (La. 2017). Nevertheless, the State failed to do so at the district
court, and Atkins now contends the State waived procedural default because
of this failure. In the State’s response brief, the State did not attempt to raise
procedural default as a defense, and the State did not respond to Atkins’ waiver

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argument. Thus, to bar habeas relief based on procedural default, we would
have to raise and apply the defense sua sponte.
When considering whether we should identify and apply a procedural
default in habeas review, we consider whether the applicant had notice that
the appellate court might consider procedural default and had a reasonable
opportunity to respond, and whether the government intentionally waived the
possible default. Smith v. Johnson, 216 F.3d 521, 524 (5th Cir. 2000). Here,
the district court identified a possible defense of procedural default and
instructed the State to raise the defense if the State believed it applied. The
State thereafter answered Atkins’ habeas application and explicitly spurned
the suggested defense, stating that “it appears [Atkins] has exhausted his state
court remedies.” That is enough to convince us not to consider the issue of
whether Atkins’ habeas application is procedurally defaulted.

II. Violation of the Confrontation Clause
We review a “district court’s findings of fact for clear error and its
conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th Cir.
2013). Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may not grant habeas relief on a claim that a state
court has adjudicated on the merits unless that adjudication resulted in a
decision that was either (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or (2) “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).

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A. The last reasoned decision
A component of our review under AEDPA is how a claim was resolved in
the “last related state-court decision” that provides a “relevant rationale.”
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). If the last state-court decision
for the Section 2254 applicant did not provide a relevant rationale for the
claim, we “look through” that decision until we find one that does. Id. Only
then can we consider whether the highest state court to decide the claim
resolved it in a manner contrary to or by an unreasonable application of clearly
established Supreme Court precedent. Id.
Atkins’ habeas application in the state district court included the same
Confrontation Clause claim he now pursues in federal court, but Atkins’ state
application also included claims of ineffective assistance of trial counsel. We
have no ineffective-assistance-of-counsel claims before us.
Our search for a reasoned decision starts with the highest state-court
decision on Atkins’ habeas claims, that of the Louisiana Supreme Court in
September 2017. State ex rel. Atkins v. State, 227 So. 3d 251 (La. 2017). The
court denied relief to Atkins for two reasons. First, it concluded that Atkins’
claims were procedurally defaulted because he “failed to raise his claims in the
proceedings leading to conviction,” relying on Louisiana Code of Criminal
Procedure article 930.4(B). Id. at 251. That is the procedural default that we
do not inject into this appeal. Second, the court held that Atkins “fail[ed] to
satisfy his post-conviction burden of proof” under Louisiana Code of Criminal
Procedure article 930.2. Id. Because Atkins was claiming more than a
Confrontation Clause violation, and all claims had already been rejected by
that court as procedurally defaulted, this brief reference to the burden of proof
does not inform us whether the court was applying that defect to all the claims.
Therefore, the Louisiana Supreme Court did not give a decision that was

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reasoned in AEDPA terms on the Confrontation Clause issue or on
harmlessness. See, e.g., Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).
We therefore look through that decision.
The preceding state-court decision was rather concise, issued by the
Louisiana Second Circuit Court of Appeal in March 2016:
Applicant Justin Terrell Atkins seeks supervisory review of
the trial court’s denial of his uniform application for post-
conviction relief and “Amended Brief in Support of Application for
Petition for Post Conviction Relief.” On the showing made, the
writ is denied. La. C. Cr. P. art. 930.2; La. C.E. 801(C); State v.
Lewis, 47,853 (La. App. 2d Cir. 2/27/13), 110 So. 3d 644, 653, writ
denied, 2013-0672 (La. 10/25/13), 124 So. 3d 1092; Woods v.
Etherton, __U.S.__, 136 S. Ct. 1149 (2016).

The brevity of this decision imperfectly follows a Louisiana Uniform Rule
of the Court of Appeal. The Rule provides the following:
A. [Description of when summary disposition is appropriate.]
B. The court may dispose of a case by summary disposition with
or without oral argument at any time after the case is docketed in
the appellate court. . . .
C. When a summary disposition is issued, it shall contain:
(1) a statement describing the nature of the case and the
dispositive issues without a discussion of the facts;
(2) a citation to controlling precedent, if any; and
(3) the judgment of the appellate court and a citation to one or
more of the criteria under this rule which supports the judgment,
e.g., “Affirmed in accordance with Uniform Court of Appeal Rule
2-16.2.A(1).”
LA. UNIF. R. COURT APP. 2-16.2.
Among other omissions, the court of appeal did not identify a dispositive
issue. The State now argues that one dispositive issue was the harmlessness
of any error; the state court’s failure to identify any issue blunts the contention.
Nonetheless, we are not the supervisors of a state court’s compliance with its

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own procedural rules: “federal habeas corpus relief does not lie for errors of
state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). We still must find some
violation of federal law in the court’s judgment before granting any relief.
The court of appeal first cited Louisiana Code of Criminal Procedure
article 930.2, as would the state supreme court, which places the burden of
proof on the applicant for relief. The court next cited Louisiana Code of
Evidence article 801(c), which defines hearsay. At most we can discern that
the definition of hearsay was relevant, and Atkins had the burden of proof as
to any relevant facts and, perhaps, did not carry that burden well.
The first of two court opinions cited was State v. Lewis, 110 So. 3d 644
(La. Ct. App. 2013). In Lewis, the defendant raised five issues on appeal. Id.
at 649–55. The court of appeal in Atkins’ case gave a pinpoint citation to the
page of Lewis discussing the right to confrontation. Id. at 653. That page
refers to testimony similar to what is at issue in our case and avers that a
police officer’s describing his investigation by restating what he was told is
generally not hearsay. Id. Still, there is no holding on that page about whether
the testimony in Lewis contained hearsay. Id. On the next page of the opinion,
the Lewis court held that the police officer’s testimony that strongly implied
the defendant was the suspect was actually inadmissible hearsay, but the error
was harmless because of other substantial evidence of guilt. Id. at 654.
The State insists on this appeal that the reference to Lewis constitutes a
holding on the merits that the testimony in this case was at worst harmless
error, even if there were a violation of the Confrontation Clause. Our problem
with this position is three-fold. First, there had not been any argument about
harmless error in Atkins’ case. The briefing in the state district court did not
address that possibility, and the district court’s opinion did not discuss it. As
to Atkins’ appeal, the State never filed a brief, an absence consistent with

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Uniform Rule of the Court of Appeal 2-16.2(B) that allows the court to enter a
decision without responsive briefing. The issue of harmless error, therefore,
had not been part of the case. Second, by not identifying any dispositive issue,
the court of appeal did not itself indicate that it was relying on harmless error.
Finally, the cited page of Lewis did not refer to the harmlessness of an error.
In considering the State’s new argument that the court of appeal held
any error to be harmless, we have two considerations. On the one hand,
Congress, by adopting AEDPA, has established rules to prevent federal courts
from unnecessarily overturning state-court resolution of post-conviction
claims. On the other hand, habeas itself is based on important liberty
interests. For us to conclude that the court of appeal decision we just described
actually held that the introduction of the officer’s testimony was harmless error
would create a ruling that the state court did not clearly make. Before giving
the exceptional level of deference to a state-court holding that AEDPA
requires, we need better support than exists here to conclude that the state
court actually made that holding. We thus find that the state court by referring
to Lewis was deciding on some other basis, perhaps the same that the trial
court had used —this testimony was not hearsay at all.
Finally, the court of appeal cited Woods v. Etherton, 136 S. Ct. 1149
(2016). Woods dealt only with a claim of ineffective assistance of appellate
counsel for failing to raise a Confrontation Clause argument on appeal. Id. at
1151–53. As an initial matter, the court of appeal opinion does not include a
pinpoint citation to any portion of the opinion. We consider the case’s general
holding, which was that the federal circuit court of appeals applied the
incorrect standard of review under AEDPA. Id. at 1152. When analyzing
ineffective-assistance-of-counsel claims under AEDPA, the Supreme Court

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concluded that “doubly deferential” review is the appropriate standard. Id. at
1151 (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)).
Atkins argues that the state court of appeal denied his Confrontation
Clause claim by incorrectly applying this double deference. Actually, because
Woods addresses ineffective assistance of counsel, we conclude that the better
understanding is that the state court was using that precedent to deny the
similar claim that Atkins brought in state court but is not before us.
Accordingly, the state court of appeal’s use of Woods is not relevant to the
Confrontation Clause claim before us.
We conclude that the state court of appeal did not make an identifiable,
reasoned decision as to the Confrontation Clause. At most, we could say that
its citation to Lewis could be a ruling that this testimony was not hearsay at
all. Because of our uncertainty, we look through that court’s opinion and find
the state district court’s decision.
In February 2016, the state district court denied Atkins’ application for
post-conviction relief with far more explanation than either appellate court.
The court held that Atkins’ right to confrontation was not violated, reasoning
that because Detective Dowdy’s testimony did not reference the actual
statements Horton made during Detective Dowdy’s investigation, no hearsay
was admitted. The court also found that Detective Dowdy’s testimony was
“used to explain the sequence of events leading to the arrest of [Atkins] from
the viewpoint of the arresting officers,” which is permissible under state law.
Because the state court determined the relevant statements were not hearsay,
there was no Confrontation Clause violation. There was no additional
consideration at this point of any harmless effect.
The district court’s decision that this testimony was not hearsay is the
needed ruling that provides a rationale for Atkins’ Confrontation Clause claim.

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The state court of appeal may also share this rationale. Because we have
concluded that no state court considered harmlessness, when we analyze that
issue, there is no state-court decision to receive deference.
B. Application of Supreme Court precedent
The state court’s determination that we now review was a legal one,
namely, that the relevant testimony was not hearsay. Our review, then, is
under Section 2254(d)(1) for whether the court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
The first standard, that the decision be “contrary to . . . clearly
established Federal law,” is met if “the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). The second standard, that the state court made an “unreasonable
application of clearly established federal law,” is satisfied when that court
“identifies the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id. These alternatives require more than a federal court’s conclusion
that the state court erred under clearly established Supreme Court authority.
The federal court must also conclude the state court’s error was
“unreasonable.” Id. at 411.
We restate the key components of the challenged testimony. Detective
Dowdy was asked what he was told by Horton, who had admitted to being
involved in the offense. The prosecutor prefaced his question by saying that
Horton “implicated someone else,” and then asked Detective Dowdy, “What did
you do next with regard to your investigation?” The answer was that, based

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on what Horton told him, Detective Dowdy obtained a warrant for the arrest
of Justin Atkins. Jurors surely knew whom Horton implicated.
We now examine the state-court decision. We already explained that the
state court of appeal may have decided that the testimony was not hearsay at
all when it cited a page from Lewis, one of its own opinions. No United States
Supreme Court authority was cited on the specific page of Lewis that the
intermediate court referenced, and we find no Supreme Court authority about
hearsay anywhere in the Lewis opinion. See Lewis, 110 So. 3d at 653.
The state district court’s ruling is the reasoned state-court decision. Two
fairly brief paragraphs are the entirety of the hearsay discussion. First, under
a caption of “Law,” the court made these general statements about hearsay:
A defendant’s confrontation right is only implicated when
the out-of-court statement is used to prove the truth of the matter
asserted. Tennessee v. Street, 471 U.S. 409, 414 (1985). According
to Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed.
2d 476 (1968), the United States Supreme Court held that a
defendant’s rights under the confrontation clause of the Sixth
Amendment to the United States Constitution were violated by the
introduction, at a joint criminal trial, of a nontestifying
codefendant’s confession which named and incriminated the
defendant. “Hearsay is a statement, other than one made by the
declarant while testifying at the present trial or hearing, offered
in evidence to prove the truth of the matter asserted.” La. C.E. art.
801(c).
The next paragraph was captioned “Analysis.” There, the court held that
the challenged testimony was not hearsay:
Mr. Atkins argues that he was referenced to in the testimony
of Detective Dowdy, Mr. Bishop, Mr. Harris, and in the opening
and closing statements of the State of Louisiana. However, Mr.
Atkins’ rights were not violated, as no references were made to the
statements made by Mr. Horton and thus hearsay was not evident.
Although Detective Dowdy did make statements in reference to the
conversation between Atkins and Mr. Horton, this conversation
was used to explain the sequence of events leading to the arrest of

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the defendant from the viewpoint of the arresting officers. State v.
Calloway, 324 So. 2d at 809. Thus, Mr. Atkins’ claims in this
respect are meritless.
We examine the two cited Supreme Court opinions. In Street, the
Confrontation Clause issue arose from the fact that the confession of an
accomplice who incriminated Street was introduced. Its admission was for the
“nonhearsay purpose of rebutting [Street’s] testimony that his own [later]
confession was a coerced ‘copy’ of” the accomplice’s confession.” Street, 471 U.S.
at 417. An instruction was given, informing jurors to consider the accomplice’s
confession only as rebuttal to Street’s claim and not for the confession’s
truthfulness. Id. at 412. The Supreme Court upheld the conviction, concluding
that admission of the entire statement with a limiting instruction was
necessary and constitutional. Id. at 415, 417. “Had the prosecutor been denied
the opportunity to present [the accomplice’s] confession in rebuttal so as to
enable the jury to make the relevant comparison, the jury would have been
impeded in its task of evaluating the truth of respondent’s testimony and
handicapped in weighing the reliability of his confession.” Id. at 415.
The other Supreme Court decision cited by the state district court
involved a joint trial of two defendants; a witness stated that one of the two
confessed to him that both had committed the offense. Bruton, 391 U.S. at 124.
The trial court instructed jurors that they could consider that testimony only
as to the defendant who made the statement; the Supreme Court held the risk
was too great that jurors would be unable to restrict their use of the confession.
Id. at 135–36. The Court reversed the conviction.
The district court in Atkins’ habeas suit did not reveal how it was
applying Street and Bruton. The State’s brief in response to Atkins’ application
in the state district court contained an explanation of Street that was quoted
in that court’s opinion: “A defendant’s confrontation right is only implicated

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when the out-of-court statement is used to prove the truth of the matter
asserted. Tennessee v. Street, 471 U.S. 409, 414 (1985).” The State did not
otherwise refer to Street. To support its substantive analysis, the brief cited
Calloway, the same precedent the state district court then relied on to dismiss
Atkins’ claim. The Calloway opinion allowed the arresting officer to testify
that he stopped the black Cadillac in which the defendants were travelling
because of a radio report of suspects being in such a vehicle. State v. Calloway,
324 So. 2d 801, 809 (La. 1975). The testimony of what officers heard over the
radio was admissible to explain the events leading to the arrest. Id.
The state habeas court concluded that Detective Dowdy’s recounting of
his conversation with Horton was not hearsay because “this conversation was
used to explain the sequence of events leading to the arrest of the defendant
from the viewpoint of the arresting officers.” The holding was almost an exact
quote from Calloway, which in turn had relied on a state-court precedent. Id.
Regardless of whether that was a fair application of Calloway, we need to
examine whether the state district-court decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” § 2254(d)(1).
The first decision, Street, involved an unusual set of facts. The Supreme
Court held that “there were no alternatives that would have both assured the
integrity of the trial’s truth-seeking function and eliminated the risk of the
jury’s improper use of evidence.” Street, 471 U.S. at 415. As to Atkins, even
though showing the sequence of events leading to a suspect’s arrest may help
jurors understand the story of the investigation, the testimony was hardly an
indispensable component of the prosecution’s case.
As to Bruton, the other Supreme Court opinion that the state habeas
court cited, we do not see that it was even being applied. Perhaps the court

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No. 19-30018
cited it as a contrast both to Street and to Atkins’ situation. The Bruton opinion
does demonstrate one clear, but distinguishable, situation in which reversal is
required based on the Confrontation Clause. The state court cited these two
United States Supreme Court opinions, but its holding was based on the
Calloway Louisiana Supreme Court opinion, which allowed officers to recount
hearsay to explain certain investigatory steps.
We interpret the state court as having made two holdings. First,
Detective Dowdy’s testimony was not hearsay because “no references were
made to the statements made by Mr. Horton and thus hearsay was not
evident.” We agree to the extent that Detective Dowdy’s testimony did not
restate or paraphrase at any length what Horton had told him. Nonetheless,
the jurors were given a clear message about a specific piece of information
Horton conveyed, namely, that Atkins was his accomplice. We do not see a
holding in Street, Bruton, or any Supreme Court opinion, in which the Court
permits a-wink-and-a-nod testimony from a police officer such that jurors are
able to understand what has been said about a defendant in an out-of-court
statement without the officer’s having to say so explicitly. The second holding
was that because “this conversation was used to explain the sequence of events
leading to the arrest of the defendant from the viewpoint of the arresting
officers,” it was not hearsay. Neither Street nor Bruton made such a holding.
Both decisions recognized that a prosecutor’s professed purpose that the out-
of-court statements are not being used for their truth does not automatically
foreclose Confrontation Clause concerns.
We conclude that Street and Bruton do not even address the
Confrontation Clause issue raised by Atkins’ claims. To the extent the state
district court was applying either opinion, it was an unreasonable application
to hold they controlled as to these different facts. A precedent much closer

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factually and analytically to what occurred here is the decision in Gray v.
Maryland, 523 U.S. 185 (1998). When a police officer read a codefendant’s
confession into evidence at trial, the incriminating statements about the
defendant were also read, but the witness said “deleted” or “deletion” instead
of the defendant’s name. Id. at 188. The Court reasoned that such redacted
statements “obviously refer directly to someone, often obviously the defendant,
and . . . involve inferences that a jury ordinarily could make immediately, even
were the confession the very first item introduced at trial.” Id. at 196. The
admission of the codefendant’s confession containing unstated but transparent
references to the defendant violated the Confrontation Clause. Id. at 195.
Even closer factually is one of this court’s opinions in which a detective
testified that he “had a conversation with [the witness] and during this
conversation, learned some information,” and from that information, the
detective testified he “was able to develop a suspect.” Taylor v. Cain, 545 F.3d
327, 331 (5th Cir. 2008). The prosecutor then asked, “as per this end of your
investigation, what was the name of your suspect?” Id. The detective named
the defendant. Id. That testimony violated the defendant’s right to confront
his accusers. Id. at 336.
Our description of one of our own precedents may seem irrelevant, as
Section 2254(d)(1) does not permit relief unless a state-court decision is
inconsistent with clearly established Supreme Court authority. Nonetheless,
the Supreme Court recognizes that a circuit court of appeal, in “accordance
with [the] usual law-of-the-circuit procedures, [may] look to circuit precedent
to ascertain whether it has already held that the particular point in issue is
clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569
U.S. 58, 64 (2013). But “it may not canvass circuit decisions to determine

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whether a particular rule of law is so widely accepted among the Federal
Circuits that it would, if presented to this Court, be accepted as correct.” Id.
Similarly, we have described the proper understanding as being that
“circuit precedent cannot create clearly-established law” for purposes of Section
2254(d)(1), but a circuit court may properly rely on one of its own decisions if
that precedent held that a Supreme Court precedent clearly established a point
of law. Carter v. Stephens, 805 F.3d 552, 556 (5th Cir. 2015). Our Taylor v.
Cain opinion concluded that upholding the admission of this evidence was an
unreasonable application of the law clearly established in Ohio v. Roberts, 448
U.S. 56, 65 (1980). Taylor, 545 F.3d at 335–36.
Having gone this far in the analysis of the Confrontation Clause, we go
no further. To summarize, we have explained that the state district court did
not apply relevant Supreme Court precedent. We identified a different
Supreme Court precedent, existing at the time of the state-court decision under
review here, that has considerable relevance to the Confrontation Clause issue.
Exactly how it applies would need to be analyzed. We also identified a Fifth
Circuit precedent on similar facts that purported to apply clearly established
authority from the Supreme Court. We would need to consider whether each
specific relevant holding in Taylor at least stated it was relying on clearly
established Supreme Court authority. We leave open these questions because
we conclude the answers will not affect the outcome of the appeal. What does
control is the final issue we consider: was any error harmful?

III. Harm from Confrontation Clause error
Confrontation Clause violations are subject to harmless-error analysis.
Horn v. Quarterman, 508 F.3d 306, 322 n.24 (5th Cir. 2007). The State
concedes that it did not raise harmlessness in this case but urges us to consider

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No. 19-30018
the possibility anyway. We have held that we have the discretion to reach the
issue even sua sponte. Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010). We
find it desirable in most AEDPA cases to consider harmlessness. For a federal
court to order relief on a ground that was harmless is the kind of needless
interference with a state-court judgment that AEDPA seeks to avoid. We will
exercise our discretion and consider harmless error.
We first identify the standard we should apply in determining whether
the constitutional violation amounted to harm. We reiterate that no state-
court decision evaluated harmlessness. Without a reasoned state-court
decision on the issue, no deference is due under AEDPA. Gonzales v. Thaler,
643 F.3d 425, 430 (5th Cir. 2011).
Generally, when a federal court reviews a state-court judgment of
conviction, “a constitutional trial error is not so harmful as to entitle a
defendant to habeas relief unless there is more than a mere reasonable
possibility that it contributed to the verdict.” Billiot v. Puckett, 135 F.3d 311,
318 (5th Cir. 1998) (quoting Woods v. Johnson, 75 F.3d 1017, 1026–27 (5th Cir.
1996)). In federal habeas review, the error must have “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)). “Actual prejudice” must be shown. Id. at 637. The
Brecht standard applies even when, as here, the state court did not analyze the
issue. Fry v. Pliler, 551 U.S. 112, 121–22 (2007).
We introduced this part of the explanation with a caveat, that generally
this is the approach. What may be different here is the fact that the State
forfeited the issue. In other words, the question is whether the State’s failure
to raise harmlessness any earlier in the proceedings changes how we review
harmlessness. Whether the State’s silence was an intentional waiver of a

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recognized potential issue is unclear. “Forfeiture is the failure to make the
timely assertion of a right; waiver is the intentional relinquishment of a known
right.” United States v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010) (quoting
United States v. Arviso–Mata, 442 F.3d 382, 384 (5th Cir. 2006)). Our caselaw
states that a “waived” issue, when the term is being used to refer to an issue
intentionally not pressed on the court, usually will not be reviewed. Id. at 350–
51. As we have already indicated, though, we can raise harmlessness sua
sponte. Jones, 600 F.3d at 541. Whatever the cause of the State’s failure, we
can reach the issue.
In some situations, failure to raise an issue until the appeal results in
review only for plain error. See United States v. Castellon-Aragon, 772 F.3d
1023, 1024 (5th Cir. 2014). Here, though, we are not considering a newly
argued error that might justify reversing the district court after every
previously raised argument failed to do so. Instead, we are considering a new
issue that might allow us to avoid setting aside the lower court’s judgment.
Plain error is not the standard.
The Seventh Circuit set rules for reaching a previously unmentioned
harmlessness issue when considering the direct appeal of a federal criminal
conviction. See United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir. 1991). 1
The court determined that for reaching forfeited arguments of harmless error
in that context, “the controlling considerations are the length and complexity
of the record, whether the harmlessness of the error or errors found is certain
or debatable, and whether a reversal will result in protracted, costly, and
ultimately futile proceedings in the district court.” Id. We conclude that the

1This court approvingly cited the Giovannetti opinion in its discussion of whether we
have the “discretion to decide legal issues that are not timely raised,” also doing so in a direct
appeal of a federal conviction. See United States v. Vontsteen, 950 F.2d 1086, 1091–92 (5th
Cir. 1992) (en banc). The analysis was not of harmless error.

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Seventh Circuit’s opinion, which predated Brecht by two years and did not
involve review of a state conviction, necessarily did not, indeed could not, take
into account that the “application of a less onerous harmless-error standard on
habeas [review of a state conviction] promotes the considerations underlying
our habeas jurisprudence.” Brecht, 507 U.S. at 623. We do not find Giovannetti
persuasive for adopting a heightened standard in the habeas context from that
identified in Brecht.
We return to the precedent that identified our discretion to reach a
forfeited issue of harmless error. Jones, 600 F.3d at 541. There, the State
argued for the first time in its surreply in district court that any Confrontation
Clause violation, similar to the testimony here, was at worst harmless error.
Id. at 540–41. This court discussed Brecht in some depth, without suggesting
that because the issue had not been properly raised by the State, Brecht might
not apply. See id. at 540. For example, the court stated that “the prejudice of
constitutional error in a state-court criminal trial is measured by the
‘substantial and injurious effect [or influence in determining the jury’s verdict]’
standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L.Ed.2d
353 (1993).’’ Id. (quoting Taylor, 545 F.3d at 336). In Jones, the court analyzed
the possibility of harmlessness enough to say: “we are convinced that the error
here was not harmless” and, accordingly, do not “undertake a full analysis in
light of the State’s waiver.” Id. at 541. 2
Though we interpret Jones to have implied that the usual Brecht
standard applies even when considering a late-brought argument of
harmlessness, we see no clear precedential holding in Jones to that effect. We

2 The Seventh Circuit, despite Giovannetti, has held that Brecht applies in reviewing
a state conviction, even if the state forfeited the issue of harmlessness. See Rhodes v.
Dittmann, 903 F.3d 646, 665 (7th Cir. 2018) (refusing to apply the Giovannetti standard of
“certainty” as to harmlessness).

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so hold now. Whether raised late by the State or even if only noticed by the
court sua sponte, the same considerations apply as were explained in Brecht.
Reaching harmlessness and applying the usual review standard might
appear to be giving more lenient treatment to the State’s defaults than is given
to those of defendants. True, applicants for habeas relief are often barred
under AEDPA from raising new arguments. We see no inequity, though, in
reaching harmless error in this appeal. The prohibition on reprosecution after
an acquittal, i.e., the double jeopardy bar, makes harmless error relevant only
to a conviction. If a jury acquits, even multiple trial errors harmful to the
prosecution cannot disturb that verdict. On appeal from a conviction, though,
reaching harmlessness and applying the usual standard of review even when
the issue has not been properly raised avoids reversals and retrials when the
violation did not affect the initial proceedings. See Giovannetti, 928 F.2d at
227. A more general loosening of the tight AEDPA rules for review of a
conviction is for Congress.
We now examine the harm from this potential error. The testimony
which is the focus of the Confrontation Clause claim occurred because jurors
were effectively informed that Horton told Detective Dowdy that Atkins was
the second culprit. Whether that testimony had a substantial, injurious effect
depends largely on the extent of other testimony identifying Atkins. Those
with first-hand knowledge of the events were Jones, Bishop, and Harris. All
three had been drinking alcohol just prior to the assault. According to a police
officer, after the attack, the victims “had some bleeding head wounds.” The
three men all smelled of alcohol and had slurred speech, and all were “highly
intoxicated.” Jones died before trial, and the other two testified.
The victims knew Horton prior to the assault. Harris and Horton had
been roommates for about six months, and on the morning of the assault and

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No. 19-30018
theft, Harris had told Horton to move out of the apartment. Despite these
connections, none of the victims could provide officers with more than Horton’s
nickname on the night of the crime. Harris testified that Atkins, whom he
knew as J Money, “had been in the neighborhood a couple of times with”
Horton. Bishop similarly testified to knowing Horton and to seeing Atkins a
few times prior to the crime. During trial, both Harris and Bishop
unequivocally identified Atkins as the assailant whom they had earlier known
only as J Money.
There were some challenges made at trial to the identification. In
addition to their intoxication, Harris after the assault “had trauma to his
head,” was bleeding, had bloodshot eyes, slurred his speech, and “had extreme
trouble standing up.” The defense, by calling Williams, sought to raise doubts
about the victims’ ability to have perceived the events, then to testify
accurately about them, such as whether the door to the house was open or not,
and whether there were other, unidentified people there before the robbery.
We recount the process that led to Atkins being identified as Horton’s
accomplice. On the night of the offense, Harris and Bishop identified their
attackers as J Money and O. Three days later, Detective Dowdy again met
with Harris and Jones. Harris for the first time stated that he had learned the
actual name of one of the individuals involved in the crime. He discovered
Horton’s name after finding documents left in their previously shared
apartment. It was almost two weeks before either witness identified Atkins.
Harris testified at trial that a week after the assault, the couple who lived
below his apartment told him that the other offender had been with them at
some point, and someone had taken a photograph of him with the baby who
lived in the lower-level apartment. This neighbor supposedly “knew what
happened” and that is why the neighbor gave Harris the photograph. It was

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this photograph that Harris provided to officers. Detective Dowdy created a
photographic lineup with the neighbor’s picture for Bishop to review. Bishop
selected Atkins’ photograph. This lineup would have been tainted if Harris
had earlier shown the photograph to Bishop. At trial, Harris said he showed
Bishop the photograph before giving it to police, but Bishop testified that
though he knew about the photograph, he had not seen it before the
photographic lineup.
The validity of the lineup was challenged on direct appeal. The state
court of appeal held that the “lineup was fair and reasonable,” and jurors were
able to judge the credibility of both Harris and Bishop in their identifications.
Atkins, 74 So. 3d at 241. It does not appear the claim was made to that court
that Bishop was shown the photograph before the lineup. We do not consider
how that omission would affect the deference that otherwise would be owed to
the court of appeal on a finding of fact. The court also found that Bishop and
Harris “already knew Atkins and his accomplice.” Id. (emphasis and footnote
removed). This finding of prior knowledge is not an “unreasonable
determination of the facts,” 28 U.S.C. § 2254(d)(2), and is owed deference.
In summary, the two witnesses who were victims of the crime had some
familiarity with Atkins before the offense. Each positively identified Atkins.
On cross-examination, defense counsel did not seriously challenge either
witness’s ability to identify the attacker on any grounds, including
intoxication. At least one witness, and perhaps both, knew the person’s
nickname, J Money. Harris and Bishop were intoxicated, perhaps significantly
so. We have no evidence to support, though, that their powers of perception
were so affected as to be unable to recognize that someone they had seen at
least on a few earlier occasions was attacking them. The cross-examination of
the two witnesses raised no reasonable questions about the identifications

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No. 19-30018
other than the potentially tainted photographic lineup. Harris, though, was
not affected by that possibility, only Bishop. We conclude that any error was
harmless because it did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Kotteakos, 328 U.S. at 776.
* * *
No judge in active service having requested a poll of the court on the
petition for rehearing en banc, that petition is DENIED. The petition is
converted to one for rehearing by the panel, and that petition is GRANTED.
We AFFIRM the district court’s denial of relief.

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No. 19-30018
GREGG COSTA, Circuit Judge, dissenting in part:
There are winners and losers in litigation. So the measure of the justice
system is not whether the losing party is happy with the result. It’s whether
that party got a fair shake. And fair treatment depends on the neutral
application of procedural rules. That evenhandedness is part of what is meant
by the “rule of law” or “equal justice under law,” ideals that are guiding lights
of our justice system.
A neutral justice system cannot apply a double standard for procedural
rules such as the one that should resolve this case: “Ordinarily a party may not
present a wholly new legal issue in a reviewing court.” CHARLES ALAN WRIGHT
& ARTHUR R. MILLER, 9C FEDERAL PRACTICE & PROCEDURE § 2588. That rule
is a—perhaps the—bedrock principle of appellate review. See generally
Raising New Issues on Appeal, 64 HARV. L. REV. 652, 652–55 (1951). The
preservation requirement is “as old as the common-law system of appellate
review.” Robert J. Martineau, Considering New Issues on Appeal: The General
Rule and the Gorilla Rule, 40 VAND. L. REV. 1023, 1061 (1987); see Clements v.
Macheboeuf, 92 U.S. 418, 425 (1875); 2 WILLIAM BLACKSTONE, COMMENTARIES
*455; Andrey Spektor & Michael A. Zuckerman, Ferrets and Truffles and
Hounds, Oh My: Getting Beyond Waiver, 18 GREEN BAG 2d 77, 79–81 (2014).
The rule against hearing new issues on appeal comes up so often that it
goes by many names. Waiver is the most common term, though forfeiture is
more accurate (as we are talking about failing to raise an issue in the trial
court, not affirmatively abandoning it). United States v. Olano, 507 U.S. 725,
733 (1993). It’s also called the preservation rule. Ian Speir & Nima H.
Mohebbi, Preservation Rules in the Federal Court of Appeals, 16 J. APP.
PRACTICE & PROCESS 281 (2015). Most punchy is “raise-or-lose.” United States
v. Roberts, 119 F.3d 1006, 1013 (1st Cir. 1997); Tory A. Weigand, Raise or Lose:
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Appellate Discretion and Principled Decision-Making, 17 SUFFOLK J. TRIAL &
APP. ADVOC. 179 (2012). Regardless of the label used, “[t]he rule that points
not argued will not be considered is more than just a prudential rule of
convenience; its observance, at least in the vast majority of cases, distinguishes
our adversary system of justice from the inquisitorial one.” United States v.
Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring).
The state violated this basic preservation requirement when it comes to
the harmlessness argument it now so vigorously pushes. There was not a peep
about harmlessness in the district court. As a result, the original panel
opinion—issued after a full airing of the case, including oral argument—
decided not to forgive the state’s forfeiture of the issue. Atkins v. Hooper, 969
F.3d 200, 210 (5th Cir. 2020). We recognized the discretion we have to do so
but saw “no reason for exercising it here.” Id. I would stand by that sound
determination.
The panel majority, however, does a 180 on rehearing. There is nothing
wrong with that as a general matter. For more than 99% of cases, the court of
appeals is the end of the road. The rehearing stage is usually the last chance
to get the case right. Judges thus must guard against the certitude and pride
that can get in the way of correcting one’s mistakes. Openness to
reconsideration is a good thing. But this reversal is not due to any error,
factual or legal, that the rehearing petition identified. Instead, the panel
majority flips a judgment call on whether to forgive the state’s failure to
preserve the harmlessness issue. The rehearing petition does not cite any new
factors that should influence that decision. The majority cites one thing that
has been true of this case from the very beginning: it is a habeas petition. Maj.
Op. 18.

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I see three problems with the notion that it is “desirable in most AEDPA
cases to consider harmlessness” even when it was not raised in the trial court.
Id.
First, the discretionary nature of recognizing forfeiture is not unique to
AEDPA. A court always has discretion to forgive forfeiture (or even waiver).
Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008); Singleton v. Wulff, 428
U.S. 106, 121 (1976); Weigand, supra, at 180–81, 187–97 (chronicling Supreme
Court caselaw on discretion to overlook forfeiture); Spektor & Zuckerman,
supra, at 79, 82. No court says there is some special rule for habeas that
requires consideration of harmlessness when the state fails to assert it. See
Jones v. Cain, 600 F.3d 527, 540–41 (5th Cir. 2010); Rhodes v. Dittmann, 903
F.3d 646, 664 (7th Cir. 2018) (recognizing discretion in this area and citing
cases from the Fifth, Sixth, and Tenth Circuits holding the same). Nor, until
today, has any court created a presumption to forgive a failure to raise
harmlessness in AEDPA cases. The traditional default rule is against allowing
a party to present an issue for the first time in the appellate court. See, e.g.,
Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993) (Boudin, J.)
(noting that it “is and should be uncommon” for courts to forgive waived or
forfeited issues). As we have said, forfeiture should be forgiven only in
“extraordinary circumstances.” Does 1-7 v. Abbott, 945 F.3d 307, 312 (5th Cir.
2019) (quotation marks omitted). And like most discretionary decisions, the
decision to excuse a forfeiture should be “exercised on the facts of individual
cases” rather than dictated by “general rule[s].” Singleton, 428 U.S. at 121; id.
(noting two factbound situations when forgiving forfeiture might be
appropriate: “where the proper resolution is beyond any doubt . . . or where
‘injustice might otherwise result’” (quoting Hormel v. Helvering, 312 U.S. 552,
557 (1941))). There is no textual or precedential support for a categorical
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presumption that points in the opposite direction of the general forfeiture rule
and excuses the state’s failure to raise harmlessness in AEDPA cases. See
Rhodes, 903 F.3d at 664 (“Procedural rules apply to the government as well as
to defendants.” (quotation marks omitted)).
Second, the lack of textual support for special leniency when it comes to
the state’s forfeiture of harmlessness contrasts sharply with AEDPA’s explicit
provision for leniency for exhaustion: “A State shall not be deemed to have
waived the exhaustion requirement or be estopped from reliance upon the
requirement unless the State, through counsel, expressly waives the
requirement.” 28 U.S.C. § 2254(b)(3); see Taylor v. Cain, 545 F.3d 327, 333
(5th Cir. 2008). In other words, AEDPA says the state cannot forfeit
exhaustion, it must affirmatively waive exhaustion. There is nothing like that
in the statute for harmlessness. “We do not lightly assume that Congress has
omitted from its adopted text requirements that it nonetheless intends to
apply, and our reluctance is even greater when Congress has shown elsewhere
in the same statute that it knows how to make such a requirement manifest.”
Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341 (2005).
Lastly, and circling back to my opening point, the leniency the majority
affords the government’s forfeiture is hardly, if ever, shown when habeas
prisoners fail to raise an issue in the district court. One can look far and wide
yet not find a decision from our court excusing a prisoner’s failure to preserve.
We routinely apply forfeiture to habeas prisoners, without even contemplating
using our discretion to excuse it. See, e.g., Howard v. Davis, 959 F.3d 168, 172
(5th Cir. 2000); Malone v. Wilson, 791 F. Appx 505, 506 (5th Cir. 2020);
Thompson v. Davis, 916 F.3d 444, 460 (5th Cir. 2019). We apply the raise-or-
lose rule to prisoners so strictly that it was not enough when one facing a life
sentence raised an issue “in general” (and cited the right statutory subsection
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in his opening brief), because his argument was “inconsistent” and unclear.
Poree v. Collins, 866 F.3d 235, 250 (5th Cir. 2017).
If anything, this double standard—what’s good for the prisoner is not
good for the government—has it backwards. Courts have long recognized that
parties with liberty interests at stake present the strongest case for excusing
forfeiture. United States v. Atkinson, 297 U.S. 157, 160 (1936) (stating that
“[i]n exceptional circumstances, especially in criminal cases,” appellate courts
could “notice errors to which no exception has been taken”); Raising New Issues
on Appeal, supra, at 653 (“[R]aising new issues in criminal cases . . . rests on
the same considerations as are present in civil cases, but has the additional
factor that the result may be so drastic for the defendant and the burden to the
state of a new trial so minor that courts tend to be more lenient in hearing a
new matter on his behalf.”); see also Weigand, supra, at 292–93 (noting that
there is usually more reluctance to find plain error in civil cases because liberty
interests are generally “absent”). What is more, in habeas litigation the state
has counsel with subject matter expertise; the prisoner is typically litigating
pro se. Yet despite our “traditional disposition of leniency toward pro se
litigants,” Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998), we routinely
enforce against them AEDPA’s “procedural pitfalls that prevent prisoners from
challenging potentially unconstitutional convictions,” Rhodes, 903 F.3d at 664.
Neutral application of the law requires the same vigilance when it comes to a
procedural pitfall of the state’s own making. A presumption that excuses the
state, but not pro se litigants, for failing to raise an issue in the district court
is not consistent with “equal justice under law.” Cf. Martineau, supra, at 1061
(arguing that “inconsistency” in applying forfeiture “is destructive of the
adversary system, causes substantial harm to the interests that the general
rule is designed to protect, and is an open invitation to the appellate judges to
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‘do justice’ on ad hoc rather than principled bases”); Weigand, supra, at 180–
81 (recognizing that inconsistent application of forfeiture rules casts doubt on
the courts’ legitimacy).
For these reasons, I would stick with the original decision not to excuse
the state’s unjustified failure to raise harmlessness in the trial court. Applying
our prescribed case-by-case discretion rather than an extratextual
presumption for AEDPA cases, this does not come close to the “extraordinary
circumstances” that would justify forgiving the forfeiture. Does 1-7, 945 F.3d
at 312 (cleaned up).
The only conceivable justification would be if the Confrontation Clause
error were harmless “beyond any doubt.” 1 Singleton, 428 U.S. at 121. When
the outcome of a retrial is “certain,” it would be inefficient to waste everyone’s
time with a redo. United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.
1991) (Posner, J.). 2 The need for the forfeited harmlessness issue to be “beyond
any doubt” or “certain” casts the issue in a much different light than the
majority’s assessment, which gives the state a free pass and considers
harmlessness as if the state had followed the rules and raised it from the
beginning. Taking the hearsay out of the equation, the state’s case depended
on the testimony of two eyewitnesses who were drunk when the crime took

1 Other situations to excuse forfeiture, when a manifest injustice would result or the
neglected issue is a pure question of law, do not apply. See Law Funder, L.L.C. v. Munoz,
924 F.3d 753, 759 (5th Cir. 2019).
2 The majority opinion casts doubt on Giovannetti because it was pre-AEDPA. But its

certainty standard is the same “beyond any doubt” standard that the Supreme Court has
recognized as one of the extraordinary circumstances that, as a general matter, may excuse
forfeiture. Singleton, 428 U.S. at 121. The majority opinion skips over the need for an
extraordinary circumstance to justify looking past forfeiture (unless it’s saying that there is
always an extraordinary circumstance in an AEDPA case). That failure to identify a case-
specific extraordinary circumstance is the source of my disagreement, not the application of
Brecht once there is a valid reason for overlooking forfeiture.
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place and who could not give Atkins’s name when first questioned. Maj. Op.
22–23. The prosecution thought the accomplice Horton’s identification of
Atkins was important enough to its case that it featured it as the coup de grace
in opening, introduced it in violation of the Confrontation Clause during trial,
and again mentioned it at closing. The state’s continued reliance on Horton’s
out-of-court tying of Atkins to the crime is not surprising—testimony of an
accomplice is potent evidence. Indeed, if the Confrontation Clause error were
obviously harmless, why didn’t the panel recognize that the first time?
Because harmlessness is not “beyond any doubt,” we should not forgive the
state’s failure to timely raise it. Singleton, 428 U.S. at 121; see also Giovanetti,
928 F.2d at 227 (refusing to forgive government’s forfeiture of harmlessness in
collateral review case because outcome of question was not certain).
Atkins is the rare habeas prisoner who can overcome the numerous
statutory obstacles that AEDPA places on those seeking to vacate their
convictions based on the violation of important constitutional rights, which
confronting one’s accusers surely is. Judges, scholars, and commentators
criticize AEDPA for erecting too many of those hurdles. See, e.g., Davis v.
Straub, 430 F.3d 281, 296 (6th Cir. 2005) (Merritt, J., dissenting); Lincoln
Caplan, The Destruction of Defendants’ Rights, NEW YORKER (June 21, 2015)
(arguing that AEDPA “gutted the federal writ of habeas corpus”); Bryan A.
Stevenson, Confronting Mass Imprisonment and Restoring Fairness to
Collateral Review of Criminal Cases, 41 HARV. C.R.-C.L. REV. 339, 360–62
(2006). But when it comes to the requirements that AEDPA actually imposes,
those complaints should be directed at Congress. Stevenson, supra, at 360–61
(calling for repeal of the law). What courts should not be doing is inventing
new requirements not found in AEDPA’s text (perhaps in its emanations or
penumbras?)—like a rule that lets the state off the hook when it forfeits an
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 Case: 19-30018 Document: 00515624910 Page: 33 Date Filed: 11/03/2020

No. 19-30018
argument, even though we regularly hold other litigants to what they argue in
the trial court.

33