IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 11, 2008
No. 07-30813 Charles R. Fulbruge III
Clerk
TONY BURBANK
Petitioner-Appellee
v.
N. BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY
Respondent-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Respondent-Appellant N. Burl Cain (“State”) appeals from a decision of the
District Court granting habeas relief to Petitioner-Appellee Tony Burbank
(“Burbank”). A jury convicted Burbank of two counts of murder; he was
sentenced to life on each count. The Louisiana Supreme Court found two
constitutional errors at trial and remanded. On remand, the Louisiana Court
of Appeal held the errors were harmless and affirmed Burbank’s conviction and
sentence. The Louisiana Supreme Court denied certiorari. On federal habeas,
the District Court disagreed with Louisiana’s courts and granted habeas relief.
We agree with the District Court and AFFIRM its grant of habeas relief.
I
No. 07-30813
Larry Welch (“Welch”), Jeffrey Jackson (“Jackson”), Paula Hess (“Hess”)
and Cassandra Scott (“Scott”) spent the Saturday evening of January 19, 1997
at Welch’s house drinking beer, smoking marijuana, and smoking crack cocaine.
Around midnight, Welch and Jackson left the home to pick up food for the group.
Their intended mode of transportation was a stolen car parked outside the home.
While Welch and Jackson were attempting to push-start the stolen car, a
gunman appeared and shot each man five times with a nine-millimeter
handgun. Both men were killed.
After the shooting stopped, Hess and Scott exited the home. Scott went
to the body of Welch, her lover, and removed the cash from his pockets. Neither
Scott nor Hess called for an ambulance or alerted the police. The police arrived
on the scene shortly after midnight and took statements from both women.
According to the detective on the scene (“Hoobler”), police transported Scott to
the station where she provided a formal statement, which stated that she was
looking out the front window of the house when the shooting occurred and saw
the shooter. Scott later identified Burbank (whom she knew as “Dog Boy”) from
a photographic line-up,1 signing and dating the back of Burbank’s police
1
Detective Hoobler testified:
Q: . . . I’m going to show you . . . State’s Exhibit #29 and ask you to identify
it?
A: . . . it’s an evidence envelope and inside are six color photographs of
Black male juveniles.
Q: And from those photographs was Miss Scott able to make a positive
identification?
A: Yes, sir, she did.
Q: And who did she identify?
A: She identifies photograph #4 out of lineup which is Tony Burbank or
Tony Stone, Jr. or as his street name is “Dog Boy”.
Q: As a crime detective did she supply you with the street name?
A: Yeah, she only supplied with the nickname of “Dog Boy” nothing else.
2
No. 07-30813
photograph on January 21, 1997, two days after the murder.2 Hess, however,
never identified Burbank.3
Detectives later arrested Burbank at his house. While searching his
house, detectives recovered a forty-caliber semi-automatic pistol, an ammunition
magazine, eleven forty-caliber rounds, and one nine-millimeter round.
Detectives did not, however, recover any physical evidence linking Burbank to
the killings of Welch and Jackson. In fact, authorities never found any physical
evidence linking Burbank to the killings.
Because there was no physical evidence linking Burbank to the crime and
because no other witness had identified him, the State relied heavily on Scott’s
trial testimony identifying Burbank as the killer.4 At trial, after identifying
“Dog Boy” as the killer, Scott identified Burbank as the man she knew as “Dog
Boy.”5 During the State’s direct examination, it elicited testimony from Scott
2
At trial, Scott re-affirmed both her statement and her photographic identification.
3
Hess testified:
Q: . . . you’ve never identified Tony Burbank as being the killer, have you?
A: No, I haven’t.
4
Scott testified:
Q: What happened later on that night?
A: Well I got hungry and at that particular time of night only place that’s
open is Church’s. So me, Welch we got our money together for them to
go to Church’s him and Jeffrey. Him and Jeffrey left out the door. They
walked to the corner. Larry walked back gave me a kiss. By the time I
shut the door and returned back to the sofa I had – I heard fire shots,
shots being fired. I then jumped on the floor. Then after a pause I got
up and I looked out the window. And there I saw it was “Dog Boy” who
shot em, I saw him with the gun in his hand.
5
Scott testified:
Q: Do you see “Dog Boy” in Court?
A: Yes, I do.
Q: Where is he?
A: He’s sitting over here (indicating) [to Burbank] . . .
3
No. 07-30813
that cast doubt on her credibility, including that she: had been drinking and
doing drugs on the day of the killings but was not high at the time of the
incident; was incarcerated at the time of Burbank’s trial;6 had three prior
convictions;7 and had considered falsely testifying that she could not identify
Burbank as the shooter (indeed signing a statement to that effect) in exchange
for assistance from a private investigator (“Smith”) who was working for
Burbank’s defense. Scott also testified that the assistant district attorney trying
the Burbank case had not promised her anything in exchange for her testimony.8
On cross-examination, the defense focused its efforts on impeaching Scott’s
credibility. Scott again admitted that she had been drinking beer, smoking
marijuana, and smoking crack on the day of the crime. Scott also admitted
6
Scott testified:
Q: Where have you been for the past twenty-two months?
A: Twenty-three months and a half I’ve been incarcerated.
7
Scott testified:
Q: You have convictions, do you not?
A: Yes, I do.
Q: What are your convictions for?
A: Crime against nature.
Q: How many times have you been convicted?
A: Three.
8
Scott testified:
Q: Have I offered you anything –
A: No, you haven’t.
Q: – for your testimony?
A: No, you haven’t.
Q: Have I ever talked to you about me being able to give you a get out of jail
free card?
A: No.
Q: Have I ever told you that I hold the proverbial key to the jail?
A: No.
Q: Because who handles your case?
A: Judge Elloie.
4
No. 07-30813
again that she had been willing to change her testimony in exchange for
assistance from Burbank’s investigator. In addition, the defense established
that Scott had been released from jail following another arrest upon testifying
before Burbank’s grand jury.9 Although the trial judge did not allow Scott to
testify concerning the nature of her pending charges, the defense did establish
that she was facing at least five years in prison and that she was a fourth
offender.10 The defense also established that Scott’s trial had been continued
twenty-two times, was to begin the day after her testimony in Burbank’s trial,
and that Scott believed that she would plead guilty and be sentenced to thirty
9
Scott testified:
Q: You stayed in jail that time for what three weeks?
A: Give or take.
Q: And the DA’s came to you, right?
A: One DA.
Q: Tall, thin White guy?
A: Yes.
Q: And he says, look if you’ll tell – if you’re willing to come tell the Grand
Jury we’ll let you out, right?
A: He didn’t say it like that.
Q: How did he say it?
A: He asked me was I willing to go before the Grand Jury and testify once
I get out.
Q: And when you said, yes, you were released, right?
A: I went back to court.
Q: And when you said, yes, essentially you were released, right?
A: If you want to say it that way.
10
Scott testified:
Q: You’re facing . . . at least five years on the bottom line charge, right?
A: I guess.
Q: And the District Attorney asked about your prior arrests or convictions?
A: I have three prior convictions.
Q: Three?
A: Three.
Q: That makes you a fourth Offender, doesn’t it?
A: Yes, it does.
5
No. 07-30813
months imprisonment.11 However, when defense counsel asked Scott whether
she had “completed a plea agreement over a year ago to get one year and get
out,” the trial judge sustained the State’s relevancy objection and would not
allow Scott to answer the question.12 Finally, the defense suggested that Scott
faced “twenty to life” if she did not identify Burbank as the killer. Scott,
however, denied it.13
Following the State’s case-in-chief but before the defense put on its case,
the defense proffered testimony of Scott’s former attorney (“Moore”) in camera.
11
Scott testified:
Q: Now your case is set for tomorrow morning, right?
A: Yes, it is.
Q: You expect to pled guilty, don’t you?
A: Yes.
Q: Yes, right?
A: Yes.
Q: Your case has been continued twenty-two times, hasn’t it . . . ?
A: Yes, it has.
Q: If you’re planning on pleading guilty and the twenty-two times over the
last two years, why didn’t you just pled guilty and get that over with?
A: To enlighten you. Before hand I was going to plea guilty and accept
thirty months but then I’m involved with another case, another Trial and
they kept setting me back it wasn’t my doing.
12
Scott testified:
Q: In fact you’ve completed a plea agreement over a year ago to get one year
and get out, didn’t you?
St.: Objection to relevance again, Judge.
Ct.: I would sustain that.
13
Scott testified:
Q: If you come in front of this Jury you know don’t you that if you come in
front of this Jury and ever admit like you told those people on the street
that you made a mistake in identifying Tony Burbank you know you’re
going back there for twenty to life, don’t you?
A: No, I don’t.
6
No. 07-30813
Moore testified that he understood that Scott had reached a plea agreement14
with the State on her pending cocaine possession charge whereby the State
agreed not to Quad-Bill her (which would have resulted in a sentence of twenty
to life) and that Scott instead would serve only one year on the charge.15
The defense then presented its case, emphasizing Scott’s lack of credibility.
Smith testified that he visited Scott while she was incarcerated, informed her
that he was an investigator working for Burbank, and without any inducement
from him, Scott told Smith that Burbank was not at the scene of the killings.
The defense also offered the testimony of Eugene Jarrow (“Jarrow”). Although
14
The defense proffered Scott’s purported plea agreement in camera, but it was not
admitted into evidence at trial.
15
Moore testified:
Q: And did you have an occasion to represent one Cassandra Scott . . . ?
A: Yes, sir. . . .
Q: You discussed the case with Miss Scott?
A: Yes.
Q: Which case was that?
A: Possession of cocaine.
Q: And the penalty Miss Scott is facing is . . .
A: The DA intended to Multi-Bill her. She was a triple offender, and she
would get forty (40) months to ten (10) years if I’m not mistake. And the
DA thinks this would make her a Quad-Bill which would be twenty (20)
years to life.
Q: Without parole?
A: Yes.
Q: Have you informed her of this?
A: Yes, I have.
Q: Has there been any offer to the best of your knowledge for the lesser
penalty?
A: Oh, from my understanding and from taking over the file, there was a
plea agreement for one year in the Department of Corrections.
***
Q: No Multiple Bill?
A: No Multiple Bill. Just one year concurrent with any other sentences she
might be serving.
***
Q: It is dated 3/25/99. . . . Did you ever follow up any of that?
A: That’s “not,” official, Judge. Usually the Judge will change different
things in the plea agreement.
7
No. 07-30813
Scott previously had testified that she did not know Jarrow,16 he testified that
he had known Scott for about five years and that she smoked crack. When
Jarrow began to testify about a conversation he had with Scott in which she
allegedly told him that she had misidentified Burbank as the shooter, the judge
stopped him.17 The defense then sought to offer testimony from Camille Smith
(“Camille”), which likely would have alleged that Scott admitted to Camille that
16
Scott testified:
Q: . . . you had made a mistake in [Burbank’s] identification, didn’t you?
A: No.
Q: Well you told that to Eugene Jarrow, didn’t you?
A: I don’t know a Eugene Jared (spelled phonetically).
17
Jarrow testified:
Q: Whether or not he ever had conversation to Cassandra Scott relative to
Dogboy or Tony Burbank.
St.: Objection to relevance.
Ct.: No can answer whether or not he had a conversation.
A: Yes, sir.
Q: . . . tell the members of the Jury how that conversation came about?
St.: Objection to relevance.
Ct.: No he is going to say how it came about.
A: I can say it?
Ct.: How the conversation came about.
A: . . . Cassandra Scott had came over there to buy some crack and I was
sitting down. I asked her about the incident with Tony Burbank and she
told me.
Ct.: No, not at that point, at that point. That what she told you then we’re
not going to answer that, we’re not going to get into that.
A: Alright.
Df.: Your Honor, are you –
Ct.: Yes, I am. Whatever you question is on that, yes I am.
Df.: Well maybe –
Ct.: We’re not getting into what he told her and what she told him.
Df.: No, she’s denied saying it -- no, we’re trying to show that she did say it
through a witness. The Jury has to make that decision, not the Court,
Your Honor.
Ct.: Well the Court is making this decision that he’s not going to talk about
that.
Df.: So I can’t impeach Cassandra Scott –
Ct.: The Court has made it’s decision already on that.
Df.: Thank you, Your Honor, thank you.
8
No. 07-30813
she had misidentified Burbank as the shooter,18 but Camille did not appear. The
judge then denied the defense’s request for a recess to locate Camille, and, after
confirming that the defense had not subpoenaed her, ordered the next witness.
Because the defense had none, it rested.
The jury convicted Burbank on two counts of murder; he was sentenced to
life in prison on each count. His conviction was affirmed on appeal, but the
Louisiana Court of Appeal remanded for re-sentencing. See State v. Burbank,
811 So.2d 1112, 1123 (La. App. 4th Cir. 2002). The Louisiana Supreme Court
granted Burbank’s petition for a writ certiorari and found two Sixth Amendment
confrontation clause violations during trial, namely that the trial court erred (1)
“by restricting defense cross-examination of the state’s principal witness,
Cassandra Scott, with regard to whether she had ‘completed a plea agreement
over a year ago to get one year and get out’ of jail on her own pending criminal
charges;” and (2) “by precluding the defense from presenting extrinsic evidence
of a prior inconsistent statement made by Scott to Eugene Jarrow that she had
falsely accused the defendant of killing the victim.” State v. Burbank, 872 So.2d
1049, 1050 (La. 2004). In light of these constitutional errors, the Louisiana
Supreme Court reversed in part and remanded for a determination of whether
these errors were harmless under the standard set forth in Chapman v.
California, 386 U.S. 18, 23-24 (holding that “before a federal constitutional error
can be held harmless, the court must be able to declare a belief that it was
harmless beyond a reasonable doubt”). See id. at 24. On remand, the Louisiana
Court of Appeal held the errors were harmless beyond a reasonable doubt and
18
Scott testified:
Q: You told that to Camille Smith [that you had misidentified Burbank],
didn’t you?
A: Who is Camille Smith?
Q: You don’t know Camille Smith?
A: That names seems familiar Camille, I can’t put a face with the name.
9
No. 07-30813
re-affirmed the conviction and sentence. See State v. Burbank, 893 So.2d 109,
113-14 (La. App. 4th Cir. 2004). The Louisiana Supreme Court denied certiorari.
See State v. Burbank, 917 So.2d 1082 (La. 2005).
Finally, Burbank filed a petition for a writ of habeas corpus with the
Eastern District of Louisiana pursuant to 28 U.S.C. § 2254, seeking habeas relief
based on the two constitutional errors that the Louisiana Supreme Court found.
The Eastern District granted habeas relief finding that “the two constitutional
errors found by the Louisiana Supreme Court directly infringed upon petitioner’s
right to challenge the only material testimony the state provided allegedly
connecting him to the crime” and therefore were not harmless. Burbank v. Cain,
No. 06-2121, 2007 WL 2480319, *11 (E.D. La. Aug. 29, 2007). The State appeals.
II
This appeal raises two questions: first, whether the District Court erred
in holding that it was not harmless error when the state trial court
unconstitutionally restricted the defense’s cross-examination of the State’s
principal witness, Scott, regarding whether she had reached a plea agreement
with the State concerning the criminal charges then pending against her; and
second, whether the District Court erred in holding that it was not harmless
error when the state trial court unconstitutionally precluded Jarrow from
testifying that Scott told him she had misidentified Burbank as the man who
killed Welch and Jackson.19 We need not address the second question because
we agree with the District Court’s resolution of the first question: it was not
harmless error when the state trial court unconstitutionally restricted the
defense’s cross-examination of Scott. Accordingly, on the basis of the first
question alone, we AFFIRM the grant of habeas relief.
A
19
The only question before us is whether these two constitutional violations were
harmless error; the parties do not dispute whether two constitutional violations occurred.
10
No. 07-30813
On appeal of a District Court decision granting habeas relief, we review
the District Court’s findings of fact under the clear error standard and its
conclusions of law de novo, applying the same standard of review to the state
court’s decision as did the District Court. Summers v. Dretke, 431 F.3d 861, 868
(5th Cir. 2005) (quotations omitted). Although the District Court set forth
certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996,
28 U.S.C. § 2254 (“AEDPA”), as the governing standard of review, it actually
applied the standard of review that the Supreme Court set forth in Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993), which governs federal habeas review of
constitutional errors that occur during a state trial. See, e.g., Fry v. Pliler, 127
S. Ct. 2321, 2328 (2007); Horn v. Quarterman, 508 F.3d 306, 322 n.24 (5th Cir.
2007); Kittleson v. Dretke, 426 F.3d 306, 319-20 (5th Cir. 2005). Indeed, the
Supreme Court recently explained that the Brecht standard subsumes the
standards announced in AEDPA because the purpose of AEDPA is to “limit[]
rather than expand[] habeas relief,” and Brecht is the more stringent standard.
Fry, 127 S. Ct. at 2326-27; Hughes v. Quarterman, No. 04-70022, 2008 WL
2300252, at *8 ( 5th Cir. 2008).
Assuming that a state trial court has committed a constitutional error
during trial, we will find that the error is not harmless under Brecht, only if the
petitioner shows that the error resulted in “actual prejudice” meaning that the
constitutional error had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Fry, 127 S. Ct. at 2327, 2325; see Barrientes v.
Johnson, 221 F.3d 741, 756 (5th Cir. 2000). If we are in “virtual equipoise as to
the harmlessness of the error under the Brecht standard” we will treat the error
as if it affected the verdict. See Fry, 127 S.Ct. at 2328 n. 3 (quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1995)); Tucker v. Johnson, 242 F.3d 617, 629 (5th
Cir. 2001) (quoting Corwin v. Johnson, 150 F.3d 467, 500 (5th Cir. 1998)).
B
11
No. 07-30813
The District Court granted habeas relief under Brecht, “in light of the fact
that testimony of the sole material witness able to connect [Burbank] to the
crime, Ms. Scott, was the subject of constitutional error found by the Louisiana
Supreme Court and th[is] undue restriction of the defense’s inquiry into the plea
agreement prevented [Burbank] from demonstrating her bias and self-interest.”
The State contends that the District Court erred because other testimony
provided sufficient facts about Scott’s pending criminal charges, the State’s
leverage over her, and her possible motivation to testify favorably for the State
to allow the jury to weigh her credibility. In any event, the State points out that
the one-year plea agreement in question never was finalized and that Scott
ultimately pled not guilty and was acquitted.
Burbank counters that these facts notwithstanding, the jury never was
informed through Scott’s testimony that her previous attorney, Moore, informed
her that she faced twenty-to-life as a fourth offender if the State Quad-Billed her
or that Moore had discussed with the State the possibility of Scott receiving a
one-year sentence with no Quad-Bill, seemingly in exchange for her testimony
against Burbank, which was memorialized in a proposed plea agreement.
Whether the plea agreement was finalized and whether Scott ultimately pleaded
guilty, according to Burbank, is irrelevant.
The Confrontation Clause guarantees a criminal defendant the right to
cross-examine the witnesses against him. See Davis v. Alaska, 415 U.S. 308,
316-17 (1974). Exposing the motivation of a witness “in testifying is a proper
and important function of the constitutionally protected right of cross-
examination.” See id. at 316. Indeed, it “is axiomatic that defense counsel
should be permitted to expose to the jury facts relative to [the] possible
motivation” of a witness, like Scott, “to testify favorably for the prosecution.”
12
No. 07-30813
Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2000).20 And in a case like this
one, where the witness in question, Scott, “is critical to the prosecution’s case,”
we have recognized that the “right to cross-examination is particularly
important.” United States v. Jimenez, 464 F.3d 555, 559 (5th Cir. 2006)
(quotations omitted); see also Wilkerson, 233 F.3d at 891.
The right to cross-examination, however, is not unlimited. See Jimenez,
464 F.3d at 559 (citations omitted). In analyzing a violation of the Confrontation
Clause we look primarily at the specific testimony omitted, not the weight of the
evidence notwithstanding the omitted testimony, see Jimenez, 464 F.3d at 563,
and ask whether the trial court’s erroneous decision to disallow such testimony
had a substantial and injurious effect or influence in determining the jury’s
verdict, see Brecht, 507 U.S. at 623. Under this standard, “a petitioner may
obtain habeas relief only if there is ‘more than a mere reasonable possibility that
[the error] contributed to the verdict.’” Wilkerson, 233 F.3d at 892 (quoting
Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996) (emphasis omitted)).
Our decision in Wilkerson is closely analogous to this case and weighs
heavily in favor of granting habeas relief. In Wilkerson, the State’s only evidence
that the petitioner committed the murder in question was the eyewitness
testimony of one inmate, “Riley.” See 233 F.3d at 888. Although authorities
found weapons in various prisoners’ possession, they never recovered the murder
weapon, and there was no evidence, physical or otherwise, linking him to the
murder. See id. Accordingly, Riley’s testimony was critical to the State securing
a conviction. See id. Wilkerson contended that the trial court violated his rights
under the Confrontation Clause by unduly restricting cross-examination of Riley.
See id. at 890. Specifically, the trial court refused to allow defense counsel to
20
Wilkerson filed his habeas petition in 1995, before AEDPA was enacted.
Nevertheless, Wilkerson applied the same Brecht standard that we apply today post-AEDPA.
See Fry, 127 S. Ct. at 2326-28; Hughes, 2008 WL 2300252, at *8.
13
No. 07-30813
cross-examine Riley about certain letters he had written to state officials
concerning his request to be transferred within the prison system and his
decision to testify for the State. See id. We granted habeas relief under Brecht,
holding that the trial court’s disallowance of such cross-examination was an
unconstitutional restriction of Wilkerson’s rights that could not be considered
harmless. See id. at 890-92.
As was the situation with Riley’s testimony in Wilkerson, the State’s “case
hinged on [Scott’s] supposed eyewitness account of [Welch’s and Jackson’s]
murder[s]” because “there was no other evidence, physical or otherwise, that
connected [Burbank] to the crime.” See id. at 892. But when Scott was
testifying, the trial court stopped defense counsel from questioning her about a
proposed plea agreement whereby the State would not Quad-Bill her, and she
would serve only one year in prison rather than facing the possibility of twenty
years to life as a fourth offender. That the trial court allowed defense counsel
to elicit testimony from Scott that she was a fourth offender, intended to plead
guilty the following day in a trial that had been continued twenty-two times, and
had once considered a deal for thirty months in prison, is no substitute for
testimony concerning a tentative deal that could convert a twenty-to-life
sentence into a one-year sentence,21 especially when testimony concerning that
plea agreement and the agreement itself were proffered in camera following the
State’s case-in-chief. See Giglio v. United States, 405 U.S. 150, 155 (1972)
(holding that the jury is entitled to know of any understanding or agreement
21
We acknowledge that defense counsel was permitted significant latitude in
impeaching Scott by casting doubt upon her perception and memory and by demonstrating
Scott’s willingness to change her story. We think, though, that cross-examining Scott based
upon the proposed plea agreement was qualitatively different. This testimony would have
borne directly upon Scott’s bias and her incentive to lie to curry favor with the State.
Accordingly, is was not cumulative with her other testimony admitting heavy drug use,
including on the day of the murders, and admitting that she was willing to testify that she had
misidentified Burbank in exchange for help from his private investigator with respect to the
charges pending against her.
14
No. 07-30813
between the State and its key witness in the context of a Brady violation). Nor
does the fact that the agreement never was finalized or that Scott ultimately
pled innocent and was acquitted excuse the trial court’s error. See Wilkerson,
233 F.3d at 891 (citing United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.
1981) (holding that what matters is not the existence of the deal but whether the
witness believes that it exists)). Simply put, if “the jury believed that [Scott] was
testifying to curry favor with the state, or that [she] expected some real or
perceived benefit in return, the state’s case would have been seriously
undermined.” See Wilkerson, 233 F.3d at 892. Allowing cross-examination
concerning Scott’s potential one-year plea agreement likely would have had such
an effect. Accordingly, “it is apparent that there is more than a reasonable
possibility that the verdict may have been different had defense counsel been
permitted to inquire fully into” the potential one-year plea agreement. See id.
This constitutionally erroneous ruling by the trial court was not harmless and
therefore merits habeas relief. See Brecht, 507 U.S. at 638.
III
For the foregoing reasons, we AFFIRM the grant of habeas relief.
15