Lave v. Dretke

444 F.3d 333, 69 Fed. R. Serv. 873, 2006 U.S. App. LEXIS 7173, 2006 WL 711285
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 22, 2006
Docket04-70035
StatusPublished
Cited by34 cases

This text of 444 F.3d 333 (Lave v. Dretke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lave v. Dretke, 444 F.3d 333, 69 Fed. R. Serv. 873, 2006 U.S. App. LEXIS 7173, 2006 WL 711285 (5th Cir. 2006).

Opinions

EMILIO M. GARZA, Circuit Judge:

Joseph Lave appeals the district court’s denial of his habeas petition under 28 U.S.C. § 2254. He argues that his Sixth Amendment rights were violated under a retroactive application of the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which held that testimonial, out-of-court statements are inadmissible unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross-examine the witness about the statement. Id. at 59, 124 S.Ct. 1354.

The facts of this case were detailed in our previous opinion granting Lave a certificate of appealability. See Lave v. Dretke, 416 F.3d 372 (5th Cir.2005). At Lave’s capital murder trial, Officer Kevin Hughes, one of the state’s witnesses, testified as to a statement by one of Lave’s alleged accomplices. In the course of an interrogation, the accomplice told Officer Hughes that Lave committed the murder. A jury convicted Lave, and he was sentenced to death. The conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals, and the Supreme Court denied his petition for a writ of certiorari. Lave filed for state habeas corpus relief, which was also denied.

Lave then sought federal habeas relief. The district court referred the case to a magistrate judge, who, on the day after Crawford was announced, issued a report and recommendation to deny the petition. In his objections to the magistrate’s report, Lave argued for the first time that Officer Hughes’s testimony violated his right to confrontation under the Sixth Amendment. The district court denied the petition, holding in part that Crawford does not apply retroactively. We granted a certificate of appealability on that single issue, reserving the question of whether the district court abused its discretion by not staying the proceedings so that Lave could return to state court and exhaust his state remedies as to his Crawford claim. See Lave, 416 F.3d at 382.

“In reviewing a ruling on the merits of a habeas claim, the district court’s findings of fact are reviewed for clear error; its conclusions of law, de novo.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003). Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), courts should not apply a new rule of criminal procedure on collateral review unless it falls into one of two narrow categories. See Beard v. Banks, 542 U.S. 406, 416, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004). The first category is for rules “forbidding punishment of certain primary conduct” or for rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” Id. (internal quotation and alteration omitted). The second category is for [335]*335“watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. at 417, 124 S.Ct. 2504 (quoting O’Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997)). Lave argues that the rule announced in Crawford was new and that it falls within the second exception to the general rule that new rules of criminal procedure should not be applied retroactively to cases on collateral review.1

A case announces a new rule when it “breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. Before Crawford, testimonial out-of-court statements could be presented to the jury if the court deemed them reliable. Crawford, 541 U.S. at 62, 124 S.Ct. 1354 (describing the test established in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). As the government concedes, Crawford overruled Roberts as that case applies to testimonial statements. See Bintz v. Bertrand, 403 F.3d 859, 866 (7th Cir.2005) (“It seems clear that Crawford was a clean break from the line of precedent established by Roberts.”). Because Crawford changed the test for the admissibility of certain out-of-court statements, it imposes new obligations on state and federal courts and qualifies as a new rule of criminal procedure.

Lave asserts that the rule announced in Crawford implicates the fundamental fairness and accuracy of criminal proceedings. He stresses that in Crawford, the Supreme Court described the right to confrontation as a “bedrock procedural guarantee” and the admission of out-of-court testimonial statements as a “core confrontation violation[ ].” See Crawford, 541 U.S. at 42, 63, 124 S.Ct. 1354. The Court has explained, however, that the conclusion “[t]hat a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished.’ ” Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (quoting Teague, 489 U.S. at 313, 109 S.Ct. 1060). In other words, Teague analysis is at least partially comparative and requires assessing the risk of false conviction under the old rule against that risk under the new rule.

Lave asserts that the Crawford rule improves the accuracy of criminal proceedings because it excludes custodial statements by alleged accomplices unless the defendant has had a prior opportunity to cross-examine that alleged accomplice. He claims that, because such statements are highly unreliable and presumptively suspect, the rule uniquely enhances the accuracy of a trial. See United States v. Flores, 985 F.2d 770, 780 (5th Cir.1993) (explaining that testimonial, accusatory statements made to non-undercover police are unreliable because the declarant has a strong incentive to shift blame and curry favor with prosecutors).

Lave’s argument, however, does not show that the Roberts regime “so seriously diminishe[d] accuracy that there [was] an impermissibly large risk of punishing conduct the law does not reach.” Summerlin, 542 U.S. at 355-56, 124 S.Ct. 2519 (internal quotations and citations omitted). Out-of-court testimonial statements were not indiscriminately presented to juries under the Roberts regime. Indeed, they were inadmissible unless they bore adequate [336]*336“indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531. Because only those statements that were deemed reliable could be admitted under Roberts, the fact that the class of statements as a whole is suspect.does not demonstrate that Roberts

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Bluebook (online)
444 F.3d 333, 69 Fed. R. Serv. 873, 2006 U.S. App. LEXIS 7173, 2006 WL 711285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lave-v-dretke-ca5-2006.