Jones v. Cain

Case: 09-30174 Document: 00511051740 Page: 1 Date Filed: 03/15/2010

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

FILED
March 15, 2010

No. 09-30174 Charles R. Fulbruge III
Clerk

TERRANCE JONES,

Petitioner – Appellee
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent – Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CV-939

Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Finding that a state court unreasonably applied clearly established federal
law by holding that no Sixth Amendment violation occurred when a jury heard
recorded testimony from a deceased witness to a murder, the district court
granted the defendant’s petition for a writ of habeas corpus. We affirm the grant
of the writ but vacate the portion of the order requiring the State to dismiss the
underlying indictment if it fails to retry the defendant within 120 days.
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FACTS AND PROCEEDINGS
A. Factual Background
In November 2001, a jury convicted Terrance Jones of second-degree
murder for the shooting of Marty Martin in the early morning of July 28, 1997.1
Pursuant to Louisiana’s mandatory sentencing rules, the state trial court
sentenced him to life in prison without the possibility of parole.
Responding to a call about a shooting, a Jefferson County Sheriff’s Deputy
discovered Martin’s body in a blue Oldsmobile adjacent to James Artberry’s
house in Marrero, Louisiana. Martin had been shot once in the chest. EMS
technicians who arrived soon after found that Martin had no vital signs.
Artberry told the police he had witnessed the shooting. He gave a short
statement at the scene, including a description of the perpetrator and the
perpetrator’s car. Detective Mike Tucker then took him to the Criminal
Investigations Bureau for questioning. Artberry gave two recorded statements
to Detective Tucker. In the first, taken after 3:00 a.m., Artberry said that he had
seen Martin at around 10:00 p.m. that night at a bar in Marrero. He explained
that Martin asked him to help find a prostitute, that he agreed to do so, but that
the search was unsuccessful and the two returned to the bar. Artberry said he
walked home without Martin and later saw two black men in a Pontiac Grand
Prix with tinted windows and a yellow sticker on the back window pull up in
front of his house. He claimed to have seen one of the two men shoot Martin
over what appeared to be a drug deal gone wrong. He stated that he did not get

1
The underlying facts are laid out in more detail in State v. Jones, 841 So. 2d 965, 969-
72 (La. Ct. App. 2003) (hereinafter “Jones II”).

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a good look at the shooter’s face or the passenger in the shooter’s car, and that
he could not identify the shooter.
Artberry gave the second recorded statement shortly after 4:00 a.m. In it,
he acknowledged his failure to disclose some information during the first
statement, which he blamed on his fear of the shooter; he also explained that he
had been involved in the drug deal. In this version of the story, after the
unsuccessful search for a prostitute, Martin asked Artberry where he could get
crack cocaine. Artberry took Martin to a woman who flagged down the blue
Grand Prix and told the occupants that Martin wanted drugs. Martin and
Artberry followed the Grand Prix in Martin’s car and met its two black male
passengers outside Artberry’s house. Artberry stated that he saw Martin
approach the passenger window of the Grand Prix, where he received a rock of
crack cocaine and handed over some money. The passenger claimed that Martin
had given him only a one-dollar bill instead of a twenty. Martin looked in his
pockets and then went to his car and rummaged around inside it. At this point,
the passenger in the Grand Prix told the driver to “knock his fucking head off.”
After looking at Artberry and telling him that he blamed Artberry for what had
happened, the driver shot Martin twice. During this second interview, Artberry
identified the shooter as a black man named Terrance who lived on Poe Street
in Westwego. Artberry claimed to have known Terrance for several years.
Subsequently, the police composed a photo lineup based on this
information. Artberry did not identify any of the subjects as the shooter. When
presented with a second lineup containing a picture of Jones, however, Artberry

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picked him out as the shooter. After this identification, two detectives recorded
a third interview with Artberry at his home.2
Artberry testified at a suppression hearing before Jones’s first trial. He
stated that he had been able to identify the perpetrator in a photo lineup and
that the perpetrator was named “Terrance.” He identified Jones in court as the
same person he had identified in the lineup. Jones’s counsel cross-examined
Artberry about these statements but not about the recorded statements he had
given the police; Jones’s defense counsel did not learn that the recorded
statements existed until after the first trial had begun. Shortly after the
suppression hearing, and before the first trial, Artberry died of a drug overdose.
B. Procedural Background
1. First trial, mistrial, and state appeals
Jones’s first trial began in July 2000. Before the trial, he moved to exclude
Artberry’s suppression hearing testimony. The trial court denied the motion.
The state intermediate appellate court and supreme court affirmed the denial.
State v. Jones, 766 So. 2d 1261 (La. 2000) (table); see State v. Jones, 791 So. 2d
622, 624 (La. 2001) (hereinafter “Jones I”). During its direct examination of
Detective Tucker, the State sought to introduce Artberry’s first two recorded
statements. This was the first time that Jones’s defense counsel learned of their
existence. Defense counsel objected and moved for a mistrial. The trial court
reversed its pretrial suppression ruling and granted the motion. The state
intermediate appellate court affirmed. It held that, in light of the undisclosed

2
The third recorded statement was also played to the jury at Jones’s trial, but the
record does not contain a transcript of it.

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statements, the defense had not had an opportunity to fully and effectively cross-
examine Artberry at the suppression hearing. See Jones I, 791 So. 2d at 624.
The Louisiana Supreme Court reversed. Though it noted “substantial
discrepancies between Artberry’s second statement to Detective Tucker and his
testimony at the suppression hearing,” the court held that Jones had a fair
opportunity to cross-examine Artberry at the suppression hearing and that
Artberry’s hearing testimony satisfied Louisiana’s hearsay exception for prior
recorded testimony. Id. at 626-28. It remanded the case for retrial.
2. Second trial and state appeals
Jones’s second trial began in November 2001. The prosecutor’s opening
statement included a narrative of the crime that relied on the recorded
statements Artberry gave to the police. The prosecutor also told the jury that
Artberry made two statements while at the police station—one in which he
denied knowing who the shooter was, and a second in which he claimed he could
identify the shooter. Jones’s defense counsel, in his opening statement,
suggested that Martin was killed after quarreling with Artberry and that
Artberry changed his story when he realized he was a suspect.
In accordance with the state supreme court’s ruling, the State introduced
Artberry’s cross-examined testimony from the suppression hearing without
objection during its case-in-chief. The State again called Detective Tucker as a
witness. Tucker testified that he had taken three statements from Artberry on
the night of the murder and then began to testify about what Artberry had told
him. He related the substance of the first recorded statement—the one in which
Artberry said that he could not identify the shooter—without objection. When
Tucker began to testify about what Artberry told him during the second recorded

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statement—the one inculpating Jones—defense counsel objected on hearsay
grounds. The trial court overruled the objection, explaining that Tucker could
testify about Artberry’s statements “for purposes of him relating . . . how he
conducted his investigation.” Jones’s counsel, citing the un-cross-examined
nature of the hearsay statements, moved for a mistrial. The trial court denied
the motion and allowed the State to continue its examination of Tucker. It did
not give a limiting instruction.
The State then moved to introduce transcribed copies of Artberry’s
statements and play the recordings to the jury.3 Jones’s counsel again objected
on hearsay and Confrontation Clause grounds. The State argued that the
Louisiana Supreme Court decision on the suppression hearing allowed the
introduction of the recorded statements. It also argued that the statements
should be allowed into evidence to bolster Artberry’s credibility. The trial court
admitted the evidence. The State made use of the statements during the
remainder of its case-in-chief. It asked Tucker to explain his theory of the crime
based in part on Artberry’s statements, and Tucker’s response relied almost

3
The district court opinion summarizes the proceedings surrounding the admission
of the recorded statements. See Jones v. Cain, 601 F. Supp. 2d 769, 778-82 (E.D. La. 2009)
(hereinafter “Jones III”).

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exclusively on the recorded statements.4 The jury convicted Jones of second-
degree murder.
After he was found guilty and sentenced, Jones appealed to the state
intermediate appellate court. That court recognized that “the State primarily
used the recorded statements to bolster its case against defendant.” Jones II,
841 So. 2d at 975. It rejected the two main rationales advanced at trial for
admitting the evidence: first, that the evidence could come in as part of Tucker’s
explanation of how he investigated the crime, id. at 974, and second, that the
state supreme court’s decision about the suppression hearing testimony also
allowed the introduction of the recorded statements, id. at 975.
The appellate court held, however, that the recorded statements could be
admitted, pursuant to Louisiana Code of Evidence article 801(D)(1)(b), “as
consistent statements intended to rebut an express or implied charge against
[Artberry] of recent fabrication or improper influence or motive.” Id. (alteration
in original) (quotation omitted). Attacks on Artberry’s motivations and
credibility in defense counsel’s opening statement and throughout the trial, the
court reasoned, “allowed the State to use Artberry’s prior recorded statements

4
Other witnesses for the State provided circumstantial evidence against Jones. Mary
Gums, Jones’s girlfriend at the time of the shooting, testified that Jones telephoned her after
the murder and asked her to give his lawyer’s phone number to a witness who lived next door
to the murder scene—viz., to Artberry. She did so; she later contacted Artberry and put him
in touch with Jones. Gums also stated that she asked Jones whether he had killed anybody,
and that he responded by saying “Don’t ask . . . no questions.” Gelandra Brue, whose
credibility as a witness was highly questionable, see Jones III, F. Supp. 2d at 807 n.29,
testified that Martin came to her house looking to buy crack on the night of the murder, but
that she turned him away. After Martin returned to her house with Artberry, she stated, she
saw Jones pull up in a blue Grand Prix with another individual, saw Jones and Artberry speak
for about ten minutes, and saw Martin and Artberry drive in the direction of Artberry’s house,
followed by the Grand Prix. Only Artberry’s recorded statements identified Jones as a drug
dealer or provided a motive for the crime.

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as a rehabilitative measure.” Id. at 976. Louisiana Code of Evidence article
801(D)(1)(b) exempts as non-hearsay a prior statement by a declarant when
“[t]he declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is . . . [c]onsistent
with his testimony and is offered to rebut an express or implied charge against
him of recent fabrication or improper influence or motive.” The state appellate
court did not address the article’s requirement that the declarant “testif[y] at the
trial or hearing”—i.e., at the trial itself—where the declarant would be “subject
to cross-examination concerning the statement.” The Louisiana Supreme Court
affirmed without a written opinion. State v. Jones, 854 So. 2d 345 (La. 2003)
(table).
3. Habeas proceedings
Jones’s state application for post-conviction relief was denied at each level.
After exhausting his state post-conviction remedies, he filed a pro se § 2254
habeas corpus petition in the Eastern District of Louisiana.5 In a lengthy ruling,
the district court concluded that the state trial court admitted and used
Artberry’s statements for their truth, which implicated Jones’s Sixth
Amendment rights and triggered a Confrontation Clause analysis under Ohio
v. Roberts, 448 U.S. 56 (1980), the clearly established law in place at the time of
the relevant state court decision.6 Jones III, 601 F. Supp. 2d at 787-88, 804-06;
see Whorton v. Bockting, 549 U.S. 406, 416 (2007) (holding that Crawford v.

5
After granting habeas relief, the district court appointed the Federal Public Defender
to represent Jones on appeal to this court.
6
The Confrontation Clause benefits Jones, a state defendant, because the Sixth
Amendment is incorporated against the states through the Fourteenth Amendment. See, e.g.,
Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999).

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Washington, 541 U.S. 36 (2004), did not announce a “watershed rule” of criminal
procedure such that it could be applied retroactively). The district court
concluded that the admission of the recorded statements did not bear adequate
indicia of reliability under Roberts and did not fall within a “firmly rooted
hearsay exception.” Jones III, 601 F. Supp. 2d at 805-06; see Roberts, 448 U.S.
at 66. It further concluded that the admission of the statements was not
harmless error. Jones III, 601 F. Supp. 2d at 806-08. It set aside Jones’s
conviction and sentence and ordered the State to either retry Jones within 120
days or dismiss the indictment against him. Id. at 809.
The State appealed. It argues that the district court erred by reviewing
the state appellate court’s application of state evidence law; that the admission
of the statements did not violate Jones’s Confrontation Clause rights; and that
any ensuing error was harmless. The State also argues that the district court
lacked authority to order the dismissal of the indictment against Jones if the
State fails to retry him within 120 days.
STANDARD OF REVIEW
In a habeas appeal, this court reviews the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standard of
review that the district court applied to the state court decision. Geiger v. Cain,
540 F.3d 303, 307 (5th Cir. 2008). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) governed the district court’s review of Jones’s
petition. Under AEDPA, when a federal habeas petitioner’s claim has been
adjudicated on the merits in a state proceeding, a federal court must defer to the
state court’s decision unless its adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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); see Rogers v. Quarterman, 555 F.3d 483, 488 (5th Cir. 2009).
“A state court’s decision is contrary to clearly established federal law if it
applies a rule that contradicts the governing law set forth in Supreme Court
cases,” Fields v. Thaler, 588 F.3d 270, 273 (5th Cir. 2009) (quotation omitted),
or if the state court “decide[s] a case differently than the United States Supreme
Court previously decided a case on a set of nearly identical facts,” Taylor v. Cain,
545 F.3d 327, 334 (5th Cir. 2008).7 When applying the “unreasonable
application” clause, “a court may grant habeas relief if the state court misapplied
the relevant legal principles to the facts.” Taylor, 545 F.3d at 334. Because no
United States Supreme Court case has facts nearly identical to those before us,
Jones’s appeal is governed by AEDPA’s “unreasonable application” prong. See
id. “The question under AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007).

7
Here, state habeas relief was denied without a written opinion. But, because we
review only “the reasonableness of the state court’s ultimate decision, the AEDPA inquiry is
not altered when, as in this case, state habeas relief is denied without an opinion.” Schaetzle
v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). In this situation, the court “(1) assumes that
the state court applied the proper ‘clearly established Federal law’; and (2) then determines
whether its decision was ‘contrary to’ or ‘an objectively unreasonable application of’ that law.”
Id.

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DISCUSSION
A. Whether the district court erred by reviewing a state evidentiary
ruling
The State argues that the district court went beyond the permissible scope
of federal habeas review by finding, contrary to the Louisiana courts, that
Artberry’s statements were hearsay. The State contends that the district court
should have deferred to the state courts’ evidentiary rulings.
The State is correct that federal courts sitting in habeas do not review
state courts’ application of state evidence law. See Castillo v. Johnson, 141 F.3d
218, 222 (5th Cir. 1998); Mercado v. Massey, 536 F.2d 107, 108 (5th Cir. 1976).
Here, though, the district court made clear that it was not reviewing the state
evidentiary rulings themselves. Jones III, 601 F. Supp. 2d at 787. Instead, it
correctly asked whether the state court’s application of state evidence rules
violated Jones’s constitutional rights. Regardless of how a state court applies
state evidence rules, a federal habeas court has an independent duty to
determine whether that application violates the Constitution. See Estelle v.
McGuire, 502 U.S. 62, 68 (1991); see also Slovik v. Yates, 556 F.3d 747, 755 (9th
Cir. 2009) (holding that a state court’s decision based on state evidence law was
nonetheless an objectively unreasonable application of federal law); Fratta v.
Quarterman, 536 F.3d 485, 502 (5th Cir. 2008) (“[T]he fact that the statements
were admissible under a state-law hearsay exception . . . did not dispose of the
Confrontation Clause issue . . . .”).
Adoption of the State’s argument would immunize constitutional error
from review when the error is related, however incidentally, to a state
evidentiary ruling. That is not the law. “[T]he admissibility vel non of the
evidence under state law is not determinative of a federally protected right

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cognizable on habeas corpus.” Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.
1976) (quotation omitted); see also Paxton v. Ward, 199 F.3d 1197, 1208 (10th
Cir. 1999). The district court did not err by ruling on the Confrontation Clause
issue raised by the state trial court’s application of Louisiana evidence law.
B. Whether the admission of the recorded statements violated
Jones’s 6th Amendment rights under Ohio v. Roberts
The State argues that Artberry’s recorded statements were properly
admitted as non-hearsay pursuant to Louisiana Code of Evidence article
801(D)(1)(b). It also claims that the Louisiana Supreme Court decision holding
that Artberry’s cross-examined suppression hearing testimony was admissible
also authorized the admission of the un-cross-examined recorded statements.
For the reasons explained below, both arguments fail. The district court
correctly found all the elements of a Confrontation Clause violation under the
applicable Ohio v. Roberts standard.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. C ONST. amend. VI. The
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). Before Crawford v. Washington, 541 U.S. 36 (2004), the Confrontation
Clause barred the use of an absent declarant’s out-of-court, un-cross-examined
hearsay statements, with certain exceptions discussed below. Under the pre-
Crawford regime applicable here, the Clause allows the use of testimony from
unavailable witnesses that is “marked with such trustworthiness that there is
no material departure from the reason of the general [Confrontation Clause]
rule.” Roberts, 448 U.S. at 65 (quotation omitted).

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[W]hen a hearsay declarant is not present for cross-examination at
trial, the Confrontation Clause normally requires a showing that he
is unavailable. Even then, his statement is admissible only if it
bears adequate “indicia of reliability.” Reliability can be inferred
without more in a case where the evidence falls within a firmly
rooted hearsay exception. In other cases, the evidence must be
excluded, at least absent a showing of particularized guarantees of
trustworthiness.
Id. at 66. Artberry was an unavailable declarant who gave testimonial evidence
but was not present for cross-examination at trial. The questions before the
court, then, are: (1) whether the recorded statements were used to prove the
truth of the matters they asserted; and (2) whether they bear the requisite
indicia of reliability, including whether they fall within a “firmly rooted hearsay
exception.”8
The district court correctly found that Artberry’s statements were used to
prove the truth of what they asserted, as did the Louisiana Court of Appeal,
which recognized that “[i]t appears the State primarily used the recorded
statements to bolster its case against [the] defendant.” Jones II, 841 So. 2d at
975. The substance of Artberry’s statements was related through Detective
Tucker, and then the statements themselves were played to the jury. The second
statement included a detailed description of the events leading up to the
shooting. That description included, most notably, Artberry’s assertion that
Martin was shot for giving Jones and his accomplice a one-dollar bill rather than
a twenty-dollar bill for a rock of crack cocaine, and that he was shot while
searching for the twenty-dollar bill in his car—even after he had returned the

8
Additionally, if the constitutional error is harmless, the habeas petition must be
denied. See O’Neal v. McAninch, 513 U.S. 432, 435 (1995). As explained infra, the State
waived this argument.

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crack. Artberry had not described the drug deal, the dispute over the money, or
the details of the shooting during his suppression hearing testimony.
The jury was never instructed to ignore the statements as testimony of
how the crime occurred and to consider them only for non-hearsay purposes.
Jones III, 601 F. Supp. 2d at 800. Without an instruction to the contrary, the
court cannot assume that the jury will not misuse the statements by considering
them for more than their purported non-hearsay purpose. United States v.
Walker, 148 F.3d 518, 524-25 (5th Cir. 1998), abrogated on other grounds by
Texas v. Cobb, 532 U.S. 162 (2001).9
Most importantly, the prosecution’s use of the statements was not limited
to the putative purpose of shoring up Artberry’s credibility, or indeed to any of
the justifications given at trial for their admission. After the trial court held
that the statements were admissible to show how Detective Tucker performed
his investigation and formulated his theory of the crime—a use that, the state
appellate court held, impermissibly raised the significant possibility that “‘the
jury [would] consider the statement for the truth of the matter
asserted’”—Detective Tucker relied on the substance of the statements to explain
his theory of the crime.10 Jones II, 841 So. 2d at 974 (quoting State v. Broadway,

9
Although the defense did not request a limiting instruction, it is likely that any such
instruction would have been futile given that the statements bore directly on Jones’s
culpability and were only marginally relevant—if at all—to any purported non-hearsay
purpose. Even if the statements were admissible under Louisiana article 801(D)(1)(b), their
asserted credibility-bolstering value was substantially outweighed by the danger of unfair
prejudice. It is difficult to imagine a limiting instruction that could cure such prejudice.
10
Specifically, Tucker testified that his theory of how the shooting took place was that,
“[w]hile reaching into his vehicle to retrieve the twenty-dollar bill, the victim was shot with
his arm extended.”

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753 So. 2d 801, 809 (La. 2000)). Thus, Artberry’s statements were used for their
truth to put before the jury a narrative of the crime that was otherwise absent.
If a jury is asked to infer that a statement purportedly introduced for non-
hearsay purposes also serves as proof of what it contains, then “the evidence
would have been hearsay; and because [the declarant] was not available for
cross-examination, Confrontation Clause concerns would have been implicated.”
Street, 471 U.S. at 414. Here, the combination of the playing of the recordings,
Tucker’s testimony about Artberry’s statements during the early morning
interviews, and Tucker’s later reliance on the statements to explain his
understanding of exactly how the shooting occurred, shows that Artberry’s
hearsay statements were admitted and used for their truth. See Jones III, 601
F. Supp. 2d at 804; see also Taylor v. Cain, 545 F.3d 327, 335 (5th Cir. 2008)
(“Police officers cannot, through their trial testimony, refer to the substance of
statements given to them by nontestifying witnesses in the course of their
investigation, when those statements inculpate the defendant.”).
The state court failed to consider the Confrontation Clause implications
of the use of Artberry’s testimony. That lapse would not have been
constitutional error if the testimony bore “particularized guarantees of
trustworthiness” or if it fell “within a firmly rooted hearsay exception.” Roberts,
448 U.S. at 66. Because it did neither, the use of Artberry’s testimony violated
Jones’s Sixth Amendment right to confront the witnesses against him.
“[A] finding of particularized guarantees of trustworthiness must be shown
from the totality of the circumstances that surround the making of the
statement, and may not be based on other evidence at trial that may corroborate
the statement.” Fratta v. Quarterman, 536 F.3d 485, 505 (5th Cir. 2008).

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Artberry gave conflicting statements while being questioned at a police station
in the early morning hours after a drug-related shooting. By his own admission,
he had been with the victim until the shooting, which occurred after he had
helped the victim locate crack cocaine. The shooting occurred adjacent to
Artberry’s property, and Artberry was found near the scene of the crime just
afterwards. Additionally, Artberry gave two conflicting statements, both of
which exculpated him of any wrongdoing. Where “the declarant makes
accusatory statements that inculpate another” to non-undercover police
personnel after a crime, “there always exists the strong possibility that the
declarant has the desire to shift or spread blame, curry favor, avenge himself,
or divert attention to another.” United States v. Flores, 985 F.2d 770, 780 (5th
Cir. 1993) (quotation omitted). Nothing about the facts surrounding James’s
recorded statements suggests, let alone establishes, a particularized guarantee
of trustworthiness.
Second, as the district court correctly decided, Louisiana Code of Evidence
article 801(D)(1)(b) is not a firmly rooted hearsay exception. Whether a hearsay
exception is firmly rooted for the purposes of a Confrontation Clause analysis is
a question of federal, not state, law. Lilly v. Virginia, 527 U.S. 116, 125 (1999).
A hearsay exception is firmly rooted if, “in light of longstanding judicial and
legislative experience, it rest[s] [on] such [a] solid foundatio[n] that admission
of virtually any evidence within [it] comports with the substance of the
constitutional protection.” Id. at 126 (alterations in original) (quotations
omitted). Conditions that have proved, over time, “to remove all temptation to
falsehood, and to enforce as strict an adherence to the truth as would the

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obligation of an oath and cross-examination at trial,” are firmly rooted.
Id. (quotation omitted).
The question whether a prior consistent statement is a firmly rooted
hearsay exception arises rarely, if ever: in the typical case in which such
evidence is introduced, the declarant is on the stand and his prior consistent
statement, about which he can be cross-examined, comes in as a hearsay
exemption. We hold that, even if a prior consistent statement were normally
considered to be imbued with the same trustworthiness as hearsay admitted
under other firmly rooted exceptions, the rule as applied in Louisiana would not
qualify. In Tome v. United States, the Supreme Court held that, under the
Federal Rules of Evidence, a prior consistent statement used to rebut a charge
of improper motive must have been made before the improper motive allegedly
arose.11 513 U.S. 150, 160 (1995). The pre-motive requirement, it explained, was
“[t]he prevailing common-law rule for more than a century before adoption of the
Federal Rules of Evidence.” Id. at 156. Louisiana’s prior consistent statement
rule has no such requirement. For Louisiana article 801 to be eligible as a firmly
rooted hearsay exception, it cannot contravene more than 100 years of common
law evidence practice.
Thus, the state trial court allowed the State to use the un-cross-examined,
testimonial statements of an absent party for their truth against Jones. The
statements were not marked by particularized guarantees of trustworthiness
and did not fall under a firmly rooted hearsay exception. Under Roberts, the
admission of the recorded statements violated Jones’s clearly established Sixth
Amendment right to confront the witnesses against him. Moreover, the

11
Here, by contrast, all of Jones’s statements were made after a motive to lie arose.

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Louisiana courts’ failure to recognize the violation was objectively unreasonable.
This is not a close case. The violation of Jones’s rights at trial should have been
obvious, and the failure to correct it was unreasonable even under the
deferential § 2254(d) standard. Cf. Taylor, 545 F.3d at 335-36 (holding that the
state court unreasonably applied Ohio v. Roberts); Dorchy v. Jones, 398 F.3d 783,
788-91 (6th Cir. 2005) (same); Murillo v. Frank, 402 F.3d 786, 792 (7th Cir.
2005) (affirming grant of habeas and holding that “[a] statement, made during
interrogation and blaming someone else, . . . is too unreliable to supply the
‘particularized guarantees of trustworthiness’ that until Crawford could have
supported admissibility.”); Guidry v. Dretke, 397 F.3d 306, 329-30 (5th Cir. 2005)
(affirming a grant of habeas based in part on a Confrontation Clause violation
under Ohio v. Roberts).
The State’s remaining arguments that the admission of the statements
was nonetheless proper are unavailing. It first contends that the decision of the
Louisiana Supreme Court allowing the admission of Artberry’s suppression
hearing testimony also allowed the admission of Artberry’s recorded statements.
This argument has been rejected by each court that has considered it, and for
good reason. Jones III, 601 F. Supp. 2d at 790; Jones II, 841 So. 2d at 975
(“[T]here is nothing in the [state supreme court’s] opinion that can be reasonably
interpreted as sanctioning the use of the recorded statements by the State as
direct evidence.”). The Louisiana Supreme Court came to no such conclusion.
It noted in passing that Jones’s defense counsel, when cross-examining Artberry
during the suppression hearing, “uncovered the gist of Artberry’s second
undisclosed statement.” Jones I, 791 So. 2d at 627. This, of course, does not
mean that Artberry was cross-examined about the statement. While the state

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No. 09-30174

supreme court also explained that, pursuant to Louisiana Code of Evidence
article 806, the defense could introduce Artberry’s statements to undercut the
reliability of Artberry’s suppression hearing testimony, id. at 628, at no point did
it hold, or even imply, that the State could use the recorded statements against
Jones in its case-in-chief.
The State brings two additional challenges to the grant of habeas relief.
First, it asserts that, regardless of whether their admission would otherwise
violate Jones’s Confrontation Clause right, Artberry’s statements were properly
admitted because Jones’s counsel invited the error. Second, the State contends
that the admission was harmless error. The State waived both arguments by
failing to raise them before the district court.
“The doctrine of invited error provides that when injection of inadmissible
evidence is attributable to the actions of the defense, the defense cannot later
object to such invited error.” United States v. Green, 272 F.3d 748, 754 (5th Cir.
2001) (quotation omitted); see also United States v. Sharpe, 996 F.2d 125, 129
(6th Cir. 1993). The State waived this argument by failing to raise it in its
merits opposition to Jones’s petition in the district court. The district court’s
opinion includes a footnote explaining the difference between “opening the door”
to the admission of otherwise irrelevant evidence and “invited error.” Jones III,
601 F. Supp. 2d at 799 n.21. The district court did not rule on an invited error
argument, however, because the State failed to make one. “[I]f a litigant desires
to preserve an argument for appeal, the litigant must press and not merely
intimate the argument during the proceedings before the district court.” FDIC
v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).

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Finally, the State argues that any Confrontation Clause violation was
harmless because the evidence against Jones was strong and because the
admission of the statements did not add significantly to the state’s case. “On
habeas review under AEDPA, 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 (1993). Taylor v. Cain, 545 F.3d 327, 336 (2008). When a court is
“in virtual equipoise as to the harmlessness of the error under the Brecht
standard, the court should treat the error . . . as if it affected the verdict.” Fry
v. Pliler, 551 U.S. 112, 121 n.3 (2007) (omission in original) (quotation omitted);
see also Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996). An error is
harmless, however, when the evidence of the defendant’s guilt is overwhelming.
Taylor, 545 F.3d at 336. The state bears the burden of showing that the error
was harmless. See Fry, 551 U.S. at 121 n.3.
The district court found that the State waived the harmless error
argument. The State did not raise harmless error in its response to Jones’s pro
se habeas petition. It brought up the issue only in a surreply, to counter a
separate argument by Jones that is not before this court. Arguments raised for
the first time in a reply brief are generally waived. See United States v. Jackson,
426 F.3d 301, 304 n.2 (5th Cir. 2005); Iteld, Bernstein & Assocs., LLC v. Hanover
Ins. Group, Slip Copy, 2009 WL 2496552, at *4 (E.D. La. Aug. 12, 2009)
(“[A]rguments raised for the first time in a Reply brief are waived.”). This court
can, in its discretion, consider the harmless error defense sua sponte. United

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No. 09-30174

States v. Vontsteen, 950 F.2d 1086, 1091-92 (5th Cir. 1992).12 Because we are
convinced that the error here was not harmless, we will not indulge the
opportunity to undertake a full analysis in light of the State’s waiver.
C. Whether the district court erred by ordering a conditional
dismissal of the indictment
The last question is whether the district court erred by ordering the State
to dismiss the indictment if it fails to retry Jones within 120 days.13 The State
is correct that the portion of the order requiring the dismissal of the indictment
against Jones, rather than requiring him to be set free, is unusual. We conclude
that it constitutes an abuse of discretion. See Capps v. Sullivan, 13 F.3d 350,
352 (10th Cir. 1993) (“In the typical case, we review the form of judgment
entered by the district court for an abuse of discretion.”).
In federal habeas cases, district courts have “broad discretion in
conditioning a judgment granting habeas relief.” Hilton v. Braunskill, 481 U.S.
770, 775 (1987). “Federal courts are authorized, under 28 U.S.C. § 2243, to
dispose of habeas corpus matters as law and justice require.” Id. (quotation
omitted). The typical remedy in habeas corpus is physical release. “Habeas
exists ‘to enforce the right of personal liberty; when that right is denied and a
person is confined, the federal court has the power to release him. Indeed, it has
no other power; . . . it can only act on the body of the petitioner.’” Zalawadia v.

12
The Vonsteen court cited United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991),
for the proposition that the appellate court “ordinarily ha[s] the discretion to decide legal
issues that are not timely raised.” 950 F.2d at 1091. The Giovannetti case concluded that the
court had discretion to overlook the government’s failure to argue harmless error and
undertake a sua sponte analysis. 928 F.2d at 227.
13
This court stayed the district court’s judgment in an order dated June 5, 2009, before
the 120 days had run.

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Ashcroft, 371 F.3d 292, 299 (5th Cir. 2004) (omission in original) (quoting Fay v.
Noia, 372 U.S. 391, 430-31 (1963)); see also Carson v. Johnson, 112 F.3d 818, 820
(5th Cir. 1997) (“A habeas petition . . . is the proper vehicle to seek release from
custody.”). The physical release required by the writ, however, is not necessarily
unconditional. Courts generally allow for the release of a prisoner subject to the
state’s right to detain him on the underlying indictment. Thus, in Irvin v. Dowd,
the Supreme Court granted habeas relief but noted that the “petitioner is still
subject to custody under the indictment filed by the State . . . and may be tried
on this or another indictment.” 366 U.S. 717, 728 (1961); see also Chessman v.
Teets, 354 U.S. 156, 166 (1957) (“We . . . remand the case to the District Court,
with instructions to enter such orders as may be appropriate to allow California
a reasonable time within which to take further proceedings not inconsistent with
this opinion, failing which the petitioner shall be discharged.”).
An order conditionally dismissing the underlying indictment is warranted
only in narrow circumstances. Because the habeas court can act solely on the
body of the prisoner, it ordinarily lacks the power to order the dismissal of an
indictment. Even when the state fails to retry a defendant within the time set
by a habeas court so that the writ issues, freeing the defendant, the state is
generally free to re-arrest and retry the defendant on the original indictment.
See Moore v. Zant, 972 F.2d 318, 320 (11th Cir. 1992) (“[I]f the state fails to
correct the defect within the given time and the prisoner is released from
custody, the state may ordinarily still rearrest and reprosecute that person.”).
In rare circumstances, a habeas court can end a state criminal proceeding
as part of the habeas remedy. If the constitutional problem that led to the grant
of the writ cannot be cured by a new trial—for example, if a double jeopardy

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No. 09-30174

violation merits habeas relief—then the habeas court can permanently end the
state criminal proceeding. “For a federal court to exercise its habeas corpus
power to stop a state criminal proceeding ‘special circumstances’ must exist. . . .
[T]he constitutional violation must be such that it cannot be remedied by
another trial, or other exceptional circumstances [must] exist such that the
holding of a new trial would be unjust.” Capps, 13 F.3d at 352-53; see also Foster
v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993) (“[Banning a retrial] is an
extraordinary remedy that is suitable only in certain situations, such as where
a retrial itself would violate the petitioner’s constitutional rights.”).
Here, a retrial would not violate Jones’s constitutional rights.
Additionally, there are no other “special circumstances” that justify an order
ending all state murder proceedings against Jones in the event that the State
cannot begin a retrial within 120 days. Thus, the district court lacked authority
to do anything except order Jones’s release, which the court may properly
condition by giving the State a certain amount of time to retry him. Its order
conditionally dismissing the indictment against Jones was an abuse of
discretion.
CONCLUSION
The district court’s grant of habeas corpus relief is AFFIRMED. The
portion of its order conditionally requiring the State to dismiss the indictment
against Jones is VACATED and the case is REMANDED for further proceedings
consistent with this opinion.

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