                  REVISED JULY 1, 2010
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                                    June 21, 2010
                                  No. 08-30958                     Lyle W. Cayce
                                                                        Clerk

ALBERT WOODFOX,

                                            Petitioner-Appellee
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                            Respondent-Appellant



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


Before KING, STEWART, and SOUTHWICK, Circuit Judges.
KING, Circuit Judge:
      In this appeal from the district court’s grant of a writ of habeas corpus, we
are confronted by a crime that is now nearly forty years old and the problems
that arise when a defendant is re-tried decades after an initial conviction.
Petitioner-Appellee Albert Woodfox, an inmate in the Louisiana State
Penitentiary at Angola, Louisiana, was originally convicted in 1973 for the
murder of prison guard Brent Miller. His conviction was eventually overturned
in state court post-conviction proceedings, but the State re-indicted him and
proceeded to a second trial in 1998. By that time many of the witnesses had died
                                  No. 08-30958

and physical evidence had been lost. The State and the defense were both forced
to present the prior recorded testimony of witnesses from the first trial.
      Not surprisingly, the jury was presented with two portrayals of Woodfox,
one as a hardened offender who advocated racial violence and force against the
prison officials, and a second as a protector of weaker inmates and an advocate
for prison reform who was targeted and framed for the crime due to his political
activism. Although presented both with witnesses who swore that Woodfox was
the killer and other witnesses who swore he had an alibi, the jury resolved the
matter in favor of the State and again convicted Woodfox of murder. That
conviction is the subject of the instant federal habeas proceeding.
      The district court held that Woodfox’s 1998 trial counsel rendered
ineffective assistance in several respects. It held that counsel should have
objected on confrontation grounds to the reading of the 1973 testimony from
inmate Hezekiah Brown, who provided an eyewitness account incriminating
Woodfox and who had died before the 1998 trial. The court believed the prior
testimony was inadmissible because prior to the first trial, the State had
suppressed information showing that Brown may have been lying about
promises from prison officials in return for his testimony. The district court also
faulted counsel for failing adequately to investigate or to object to other physical
and testimonial evidence. The State of Louisiana, acting through the
Respondent-Appellant Warden Burl Cain, appeals.
      We conclude that Woodfox’s confrontation-based argument about Brown
is precluded from federal review because it was not adequately exhausted in
state court, and that it also fails on the merits. As we explain below, we
conclude that the deferential standard of review applied to state habeas
decisions under the Antiterrorism and Effective Death Penalty Act mandates
that we REVERSE the district court’s judgment.



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                 I. Factual and Procedural Background
      In 1972, the Louisiana State Penitentiary was a segregated institution
prone to violence and harsh living conditions.       The record suggests that
stabbings occurred among the inmate population on a regular basis.
Homosexual rape was prevalent, as was the presence of so-called “gal-boys,”
inmates who acted like women in homosexual relationships and who were traded
as slaves by stronger, predator inmates. The social and political unrest of the
early 1970s that was common in the entire country added to the tension of an
already hostile prison environment. The relevance of all these facts to this case
will become clear later in this opinion. Albert Woodfox was an inmate at the
penitentiary serving a fifty-year sentence for armed robbery.
      The prison’s medium security area included four dormitory groups (each
with four dormitories), known as Pine, Hickory, Walnut, and Oak, that housed
inmates in a barracks-like setting. Woodfox lived in the Hickory 4 dorm. Brent
Miller, a young, well-liked prison guard, was one of two correctional officers
assigned to the four Pine dormitories. The prison at that time was understaffed
with correctional officers, and inmates often conducted themselves with a
minimal number of guards supervising them. For example, prisoners in medium
security were allowed a certain amount of autonomy in deciding whether or not
to remain in their dorms or to go to breakfast in the dining hall.
      On April 17, 1972, Miller stayed behind in the dorm area while fellow
correctional officer Paul Hunt escorted the inmates from Pine down the “walk”
to the dining hall for breakfast. The inmates were initially unable to gain
entrance to the dining hall because the inmate servers refused to serve breakfast
in protest of the hours they were required to work. The disturbance was known
as a “buck.”   The prisoners were held out of breakfast while the warden
attempted to resolve the buck. Some inmates returned to their dormitories,



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others remained outside. After the grievance was resolved, a second call to chow
was made.
      Sometime between 7:30 a.m. and 8:00 a.m., while all this was going on,
Miller entered the Pine 1 dormitory where inmate Hezekiah Brown kept a small
coffee pot. Brown typically remained in the dorm for breakfast and often shared
coffee with the guards. Upon returning from breakfast a short time later,
Correctional Officer Hunt found Miller’s body lying in a pool of blood in the
anteroom of the dorm. Miller had been stabbed 32 times.
      The prison immediately went into lockdown. Correctional officers began
searching the dormitory area and found a homemade prison knife covered with
wet blood hidden in a vent underneath Pine 1. Officers called in the West
Feliciana Parish Sheriff’s Department and the state police.          A physical
examination of the crime scene yielded four finger prints that were found by
dusting the dorm wall by the water cooler near Miller’s body. An apparent
bloody finger print was also visible on the door frame. Prison officials
coordinated an investigation with the Sheriff’s Department, which commenced
questioning of several hundred inmates who were in the prison yard or near the
scene at the time of the murder.
      Sheriff Bill Daniel and Deputy Thomas Guerin conducted much of the
questioning of individual prisoners in the prison’s clothing room as the inmates
waited for hours in line outside. They eventually questioned Woodfox, who
denied any knowledge of the murder and claimed he was eating breakfast at the
time. Sheriff Daniel testified that he seized Woodfox’s clothing—including a
green jacket, blue pants, and brown shoes—because of small, suspicious stains
that might have been blood. Daniel bagged these items for evidence and sent
them to the state police crime lab for further examination. A state criminologist
testified that a small stain on the jacket was found to be human blood but there
was an insufficient amount to determine the blood type. The small stains on the


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pants and shoe were also determined to be blood, but the quantity was so small
that the State’s expert could not determine if it was human or animal blood.
This was significant because Woodfox worked in the kitchen, where he could
have come into contact with animal blood. Further, neither the fingerprints on
the wall nor the bloody print found at the scene was matched to Woodfox or any
other person at the prison.
      The State’s case against Woodfox was built largely on eyewitness
testimony. The most damaging information came from Hezekiah Brown, who
testified at Woodfox’s first trial in 1973. Because Brown was deceased by the
time of the second trial in 1998, his prior testimony was read into the record.
Brown was a 66-year old inmate who had previously been on death row but had
his sentence commuted to life prior to the events described herein. He initially
told investigators on April 17, 1972, that he knew nothing about the murder and
claimed to have an alibi placing him in the blood plasma unit at the time of the
crime. Brown was questioned a second time on April 19, however, and gave a
very different story.
      Brown testified at the 1973 trial that he was in the Pine 1 dorm when
Miller came in to have coffee and sat down on Brown’s bed, which was the closest
bunk to the door. As Brown was plugging in the coffee pot, he heard scuffling
behind him. He looked up and saw four inmates had entered: Woodfox, Herman
Wallace, Gilbert Montegut, and Chester Jackson. Brown testified that the men
held handkerchiefs over their faces but that he was able to recognize them.
Woodfox suffers from a skin condition that causes blotching and rendered him
identifiable.
      According to Brown, Woodfox grabbed Miller from behind, lifted him up
off the bed, and stabbed him in the back with a knife. He testified that the other
inmates also grabbed Miller and began “jugging on him.” As they repeatedly



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stabbed Miller, the inmates pulled him into the small lobby area at the front of
the dorm where they left him as they fled out the door.
      Brown testified that he was terrified the inmates were also going to kill
him. As he watched Miller dying on the floor, Brown, who was black, believed
it imperative that he not be present when the white guard was found. He
followed the fleeing inmates out the door but soon realized he was still wearing
his pajamas. He therefore returned to change his clothes and then went to the
blood plasma unit to establish an alibi.
      Sheriff Daniel testified that after Brown gave his second statement, he
prepared arrest warrants for Woodfox, Wallace, Montegut, and Jackson.
Wallace was convicted after Woodfox’s first trial, and Jackson pleaded guilty to
manslaughter. Montegut was acquitted, however.
      How prison officials came to interview Brown the second time and the
circumstances under which he incriminated Woodfox were disputed at trial.
Brown averred in his 1973 testimony that he did not know how prison officials
knew that he had information about the murder but that no one threatened him
or made promises in return for his testimony. At the 1998 trial, Warden C.
Murray Henderson testified that he had promised to protect Brown from inmate
retribution if he provided information and to help Brown with a pardon
application. As discussed in greater detail below, the Warden’s testimony is not
entirely clear as to what was said and when, but the Warden did apparently
promise some assistance before Woodfox’s first trial.       Brown was never
questioned about the Warden’s promises because defense counsel in 1973 did not
know about them. In any event, Henderson also testified that he was led to
Brown by another inmate who lived in the Pine 1 dorm, Leonard “Specs” Turner.
      Turner was due to be released from his state sentence on the day after the
murder.   Henderson knew that Turner had not gone to breakfast on the
morning of the killing and threatened to stop Turner’s parole if he did not tell


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what he saw in Pine 1. According to Henderson, Turner said that he did not see
anything but that Brown was in the dorm and must have seen what had
occurred.
      The State called Turner as a witness at the 1998 trial. He testified that
he was in the dorm and saw Miller come in but that he left about five minutes
later and saw nothing. He did not remember telling Henderson that Brown had
been present. Turner also did not remember having a meeting with Captain C.
Ray Dixon the night before his release, and he denied telling Dixon that he saw
Woodfox kill Miller.
      The State later called Dixon, who testified that Turner often acted as his
informer about events on the yard and that he spoke with Turner about Miller’s
killing the night before Turner was released. Dixon said Warden Hayden Dees
told him that Warden Henderson wanted Dixon to speak with Turner before
Turner left the prison.    According to Dixon, Turner wanted to keep his
involvement secret and did not want to testify or sign any statements. Dixon
testified that Turner told him what he knew about the murder and that Dixon
wrote down what Turner said. Dixon identified an unsigned statement as being
in his handwriting, but he had no independent recollection of what Turner had
told him. Dixon was permitted to read from the statement to impeach Turner.
The statement indicated that Turner said he saw Woodfox enter Pine 1 wearing
a black cap and holding a handkerchief. Turner said Woodfox grabbed Miller in
a “mugger hold” from behind and stabbed him as the other inmates helped in the
struggle. The trial court gave a limiting instruction that the statement should
be considered only to discredit Turner and should not be considered as evidence
that the statement was true.
      The State also introduced other testimony in support of Brown’s account
of the murder. First, the State called Joseph Richey, a former inmate at Angola
who had lived in Pine 4 dorm across the walk from Pine 1. Richey testified that


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                                 No. 08-30958

after the buck in the dining hall he went back to this dorm and slept for about
an hour. After he awoke he saw Miller enter Pine 1 while Richey was brushing
his teeth. Because he wanted to resume a previous conversation with Miller
about Viet Nam, Richey began to leave his dorm. From his doorway, he saw
Turner leave Pine 1 at a fast pace. Richey then observed Woodfox leave Pine 1
also at a fast pace and bump into a trash cart that was being pushed down the
walk by another inmate named Fess Williams. Woodfox was not wearing a hat
or gloves. Richey saw Montegut, Wallace, Jackson and then Brown exit the
dorm, and he initially thought they were going to chow. He noticed that Brown,
who was wearing pajamas, turned and went back in the dorm, and then came
out again wearing his clothes and headed toward the kitchen. He thought this
was unusual because Brown usually did not go to breakfast. Richey proceeded
to Pine 1 where he saw Miller’s body. When he saw all the blood, Richey thought
the inmates had gone to get medical help for Miller, and he waited on the side
of the Pine dorm smoking a cigarette.
      Richey testified that when he was first interviewed about the murder he
gave a “generic” answer about seeing Miller and waiting for help to arrive, but
that about a month later he was interviewed again by Warden Dees and Captain
Dixon and that he gave a statement identical to his testimony. On cross-
examination, defense counsel questioned Richey about that prior statement,
pointing out that, unlike his trial testimony, Richey had said that the four
inmates actually passed him as he was entering the Pine 1 dorm and looked like
they expected Richey to “walk into something.” Richey testified that his previous
statement contained errors made by the typist, who confused the questions being
asked with his answers. He also testified that the statement was later revised
but that he signed it without reading it.
      The State also presented previously recorded testimony from inmate Paul
Fobb. As with Brown, Fobb testified at the 1973 trial but had died prior to the


                                        8
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1998 re-trial. His previous testimony was also read into the record. Fobb had
severe vision problems due to glaucoma in his left eye and an accident with a
cotton stick that rendered him blind in his right eye. Fobb claimed, however,
that he could see well enough in April 1972. Fobb first testified that during that
month he had witnessed a confrontation between Miller and Woodfox where
Miller had ordered Woodfox out of the Pine dorm area because Woodfox did not
live there. About a week before Miller was killed, Fobb heard Woodfox say that
Miller was “always messin’ with him.” Woodfox then said that he “had fifty
years” and “ain’t gonna be kicked,” and he threatened “to fix that little bitch.”
Fobb continued that on the Sunday before the murder he heard Woodfox and
others plotting to stage the buck so that the guards would be distracted and
leave the walk, leaving only one guard in each dormitory area. On the morning
of April 17, Fobb was on his way to the blood plasma unit when he saw Woodfox
enter Pine 1. Fobb testified that he saw Woodfox exit the dorm five to ten
minutes later and throw a rag into the Pine 4 dorm. He said he was “stunned”
at seeing Woodfox. Although Fobb identified Woodfox leaving Pine 1, he testified
on cross-examination that he did not see anyone else.
      The State presented further evidence to suggest a motive for Woodfox in
the killing. First, James Stevens, who was the Director of Prison Classifications
in 1972, testified that a woman had been removed from Woodfox’s approved
visitor list after prison officials intercepted a letter Woodfox had written to the
woman stating that “all correctional officers were pigs and that all white races
should be killed.”    John Sinquefield, the state prosecutor who prosecuted
Woodfox in 1973, also testified about an encounter he had with Woodfox in a
New Orleans courtroom where Woodfox purportedly raised his shackled hands
to spectators and said, “I want all of you to see what these racist, facist pigs have
done to me.” Finally, the State presented a letter Woodfox had written after he



                                         9
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was accused of Miller’s murder in which he spelled the word “America” with
three “k”s.
      While the State painted Woodfox as a violent and militant offender, the
defense theory was that Woodfox was singled out by prison officials because of
his political activism in the Black Panther Party and his efforts to obtain prison
reform, especially in the protection of victims of sexual predation. His theory
was that prison officials rushed to judgment because he and the other accused
inmates were perceived as “troublemakers.” Woodfox elicited testimony from
Warden Henderson, who had come to Angola from out of state with designs for
prison reform, that established prison officials, such as Warden Dees, resented
his presence, were opposed to court orders for reform, and did not conduct a non-
biased investigation of Miller’s murder. Woodfox suggested that Warden Dees
had immediately made up his mind about who had committed the murder and
confined him and the other three suspects in immediate “lockdown.” His theory
was that prison officials such as Dees “put words” in the mouths of the inmates
who incriminated him.
      Woodfox presented as an alibi witness the 1973 trial transcript of Everett
Jackson, an inmate who said Woodfox was with him at breakfast. He also
presented live testimony from Clarence Sullivan, an inmate who worked in the
kitchen and said he saw Woodfox at the dining hall. Sullivan admitted he had
never told anyone about this until speaking with defense counsel prior to trial,
however, because at the time in 1972 he had been planning an escape and did
not want to get involved. Woodfox further presented a transcript of the 1973
testimony of Fess Williams, who denied seeing anyone come out of Pine 1 and
denied that Woodfox had bumped into his trash cart that morning, thereby
contradicting the testimony of Richey.
      Woodfox also testified in his own behalf. He contended that after the buck
in the dining hall he went to breakfast between 7:30 a.m. and 7:50 a.m. He


                                       10
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claimed that after eating he went with Everett Jackson to get some legal papers
and returned to his own dorm in Hickory 4 between 8:15 a.m. and 8:30 a.m.
when all the inmates were ordered out onto the walk for questioning. He
claimed that prison officials seized his clothes. Contrary to the testimony of
Sheriff Daniel that Woodfox was wearing a green jacket, blue pants, and brown
shoes that were bagged and labeled for evidence, Woodfox testified that he was
wearing blue jeans, a grey sweatshirt, and rubber boots that he wore because he
worked in the kitchen. He testified that the clothing was simply thrown into a
pile in the corner. Woodfox also testified that the prison administration was
blatantly racist, that Sheriff Daniel had pointed a gun at his head and
threatened to shoot him, and that the State’s witnesses lied because of their
hatred of him for trying to stop the sexual attacks at the prison. He claimed that
both Brown and Richey were sexual predators, although there was no evidence
corroborating this testimony.
      The jury found Woodfox guilty of murder, and he was sentenced to a
mandatory term of life in prison without the benefit of parole, probation, or
suspension of sentence. Woodfox unsuccessfully appealed his conviction through
the state appellate process. He subsequently filed a timely state application for
post-conviction relief, raising numerous claims of error. The state trial court
initially denied the petition without obtaining a response from the State. The
Louisiana First Circuit Court of Appeal granted a writ of review, however, and
remanded with instructions that the trial court obtain an answer to the
application from the prosecution. The State thereafter filed its response, and the
trial court again denied the application. The trial court held that the application
was without merit, and it also adopted the State’s response as its written
reasons for denial. The state appellate court and the Louisiana Supreme Court
both denied applications for writs without written opinions.



                                        11
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       Woodfox then timely filed the instant petition pursuant to 28 U.S.C.
§ 2254. The magistrate judge issued a report recommending that relief be
granted on several grounds. The magistrate judge determined first that counsel
rendered ineffective assistance by failing to object to the admission of Brown’s
1973 testimony at the 1998 trial. The magistrate judge reasoned that Woodfox’s
1973 counsel was unable to question Brown about promises made to him by
Warden Henderson because the State had suppressed that information, and
therefore the admission of the testimony in 1998 violated the Confrontation
Clause. The magistrate judge also determined that Woodfox’s trial counsel had
been ineffective for (1) failing to object to testimony by former prosecutor John
Sinquefield vouching for Brown’s demeanor and credibility when testifying at
the 1973 trial, (2) failing to investigate and obtain expert witnesses to test the
bloodstained clothing or review the tests performed by the State’s expert, (3)
failing to obtain an expert to evaluate the bloody print found at the murder scene
and to verify or refute the conclusion of the State’s expert that the print might
be a palm print rather than a finger print; (4) failing to investigate and present
medical evidence concerning witness Paul Fobb’s blindness that would have
discredited Fobb’s testimony; and (5) failing to object to the State’s referral to
inadmissible hearsay statements contained in a prior statement of Chester
Jackson. The magistrate judge determined that the foregoing deficiencies of
Woodfox’s counsel prejudiced the defense and undermined confidence in the
outcome of the 1998 trial. The magistrate judge therefore recommended that
Woodfox’s conviction be vacated and the case remanded to the state court.1


       1
         In the alternative, the magistrate judge concluded that Woodfox’s § 2254 petition
presented a prima facie case of discrimination in the selection of the grand jury foreperson but
that an evidentiary hearing would be necessary to allow the State an opportunity to present
rebuttal evidence. In light of her conclusions with respect to Woodfox’s ineffective assistance
claims, the magistrate judge did not conduct a hearing, and instead recommended that the
matter be referred for a hearing if the district court disagreed with the magistrate judge’s
resolution of those claims. The ruling on discrimination in the grand jury foreperson selection

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                                        No. 08-30958

       The district court adopted the magistrate judge’s report and granted the
writ of habeas corpus. The State now appeals. It contends that the district
court, through adoption of the magistrate judge’s report, failed to afford the state
habeas proceedings the proper measure of deference and incorrectly determined
that trial counsel rendered ineffective assistance.2
                                 II. Standard of review
       On review of the district court’s grant of habeas relief, we review issues of
law de novo and findings of fact for clear error. Fratta v. Quarterman, 536 F.3d
485, 499 (5th Cir. 2008). A claim of ineffective assistance of counsel presents a
mixed question of law and fact. Richards v. Quarterman, 566 F.3d 553, 561 (5th
Cir. 2009). If the district court’s findings of fact are not clearly erroneous, we
will independently apply the law to the facts as found by the district court. Id.
       Woodfox’s § 2254 petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). The AEDPA requires that federal courts
defer to a state court’s adjudication of a claim if the claim has been adjudicated
on the merits in the state court proceedings unless the state court decision was
(1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or (2) “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).
       A state court decision is “contrary to” federal precedent if it applies a rule
that contradicts the governing law set forth by the Supreme Court or if it
involves a set of facts that are materially indistinguishable from a Supreme
Court decision but reaches a result different from that Court’s precedent.


has not been appealed and is not before us.
       2
        Because the district court adopted the magistrate judge’s report as its own opinion we
hereinafter refer to the findings and conclusions of the magistrate judge as those of the district
court.

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                                  No. 08-30958

Woodward v. Epps, 580 F.3d 318, 325 (2009). “A state court unreasonably
applies clearly established federal law as determined by the Supreme Court if
it identifies the correct governing principle established by the Supreme Court,
but unreasonably applies that principle to the facts of the case.” Rogers v.
Quarterman, 555 F.3d 483, 488–89 (5th Cir. 2009). An unreasonable application
of federal law is different from an incorrect or erroneous application of the law.
Id. (citing Williams v. Taylor, 529 U.S. 362, 409–10 (2000)). “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).
Furthermore, we review for objective reasonableness the state court’s ultimate
legal decision, not necessarily the state court’s opinion and legal reasoning for
its ultimate decision. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en
banc).
                                III. Discussion
      The State argues that the district court failed to apply the AEDPA’s
heightened deferential standard of review to Woodfox’s ineffective assistance
claims. It notes that the court reviewed de novo Woodfox’s claim regarding
counsel’s failure to challenge the 1998 indictment and testimony of Brown on
Confrontation Clause grounds, and then carried that standard of review forward
when considering Woodfox’s remaining claims. We agree that the district court
failed to apply the proper degree of deference to the state court’s denial of relief
on Woodfox’s confrontation-based claim, but we pause first to consider the
threshold issue whether Woodfox properly exhausted that claim for relief. See
Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997) (“A state prisoner normally
must exhaust all available state remedies before he can apply for federal habeas
relief.”). We raise this issue sua sponte because, as discussed further below, we



                                        14
                                       No. 08-30958

conclude that the State has not expressly waived it. See Tigner v. Cockrell, 264
F.3d 521, 526 n.3 (5th Cir. 2001).
       A. Ineffective assistance for failing to raise a confrontation
       objection

              1. Exhaustion
       A federal court may not grant habeas relief unless “the applicant has
exhausted the remedies available in the courts of the State.”                     28 U.S.C.
§ 2254(b)(1)(A). Exhaustion requires that the prisoner “have fairly presented the
substance of his claim to the state courts.”                 Nobles, 127 F.3d at 420.
“Determining whether a petitioner exhausted his claim in state court is a case-
and fact-specific inquiry.” Moore v. Quarterman, 533 F.3d 338, 341 (5th Cir.
2008) (en banc). Therefore, in order to determine whether Woodfox properly
exhausted his confrontation-based claim, it is necessary to examine in detail
Woodfox’s federal claim compared with his state claim.3
       Woodfox’s federal § 2254 petition characterized his claims as ineffective
assistance.      He specifically challenged counsel’s failure to contest on
confrontation grounds the admission of Brown’s 1973 testimony at the 1998 trial.
Woodfox’s theory was that the State suppressed the fact that Warden Henderson
promised to help Brown get a pardon in return for his testimony, thereby
denying Woodfox the opportunity to impeach Brown in 1973 and rendering the
reading of that prior testimony inadmissible in 1998.                  Woodfox, who was
represented by counsel in both federal and state court, argued the claim in
federal court this way:



       3
          Rather than begin with exhaustion, the dissent considers it as part of an analysis of
how the state court resolved Woodfox’s claim, and it asserts that a threshold issue is whether
the state court resolved the claim on the merits. See Dissenting op. at 3–4. But exhaustion
is of primary import because federal habeas relief may not be granted without it. See Nobles,
127 F.3d at 419; § 2254(b)(1)(A). We assume exhaustion later as part of our alternative
analysis of the substantive versus procedural issue in Part III.A.2 below.

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                                      No. 08-30958

       Brown’s prior testimony runs far afoul of the requirements of the
       [C]onfrontation [C]lause, not only because the jury was unable to
       assess his demeanor firsthand, but because Mr. Woodfox was unable
       to impeach and otherwise cross examine this critical witness
       regarding, among other things, the promise of a pardon made to him
       by the head warden in exchange for his testimony. Counsel’s failure
       to pursue this challenge to retrial cannot be defended. Because the
       trial court would have had no choice but to uphold such a challenge,
       prejudice is established.

       Woodfox’s claim thus presented a hybrid of Brady/Giglio principles4 and
an inadequate opportunity for cross-examination, layered within an ineffective
assistance claim.
       In his state court application for post-conviction relief, which is
voluminous and disjointed, Woodfox focused on the perceived unfairness of being
subjected to a re-trial after the passage of so many years because of the
intervening death of several witnesses and the loss of physical evidence.
Woodfox presented fifty pages of discussion of his version of the “facts,” broken
into subsections dealing with particular trial witnesses.                With respect to
Hezekiah Brown, Woodfox discussed Brown’s 1973 testimony and its alleged
deficiencies. He stated that “[s]ince the 1996 death of Brown—and with him, the
opportunity for Mr. Woodfox to meaningfully cross-examine him—a vast amount
of impeachment evidence has come to light.” He then spent several pages
discussing the Warden’s promise to Brown, letters the Warden wrote on Brown’s
behalf after the 1973 trial, the alleged incentives Brown later received, and the
testimony and out-of-court statements of other witnesses suggesting that Brown
“was a liar” and unworthy of belief. Woodfox concluded: “Brown’s testimony,
with its contradictions and his inability to answer numerous key questions, is
highly dubious. When coupled with the impeachment evidence . . . it is simply

       4
         See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that prosecution must produce
evidence favorable to the accused that is material to guilt or punishment); Giglio v. United
States, 405 U.S. 150, 154 (1972) (holding that Brady extends to impeachment evidence).

                                             16
                                 No. 08-30958

unbelievable.” Woodfox did not argue that counsel was ineffective for failing to
challenge on confrontation grounds the reading of Brown’s testimony in 1998,
focusing instead on the alleged unreliability of Brown’s testimony.
      Woodfox then presented 90 pages of specific “claims for relief,” none of
which assert that counsel failed to object to Brown’s 1998 testimony. Instead,
Woodfox’s state application (1) cites and discusses the general principles of
Brady, Giglio, and Kyles v. Whitley, 514 U.S. 419 (1995); (2) asserts that had he
not been denied certain exculpatory evidence (unrelated to Brown), “he could
have refuted the State’s case at every turn;” and (3) argues that counsel should
have sought to quash the indictment because the 21-year delay between
indictments denied him due process and confrontation, in part because of the
intervening death of Brown.
      As the district court noted, this last argument appears akin to a speedy
trial claim. Woodfox’s state habeas application asserted that the 1998 trial
counsel was ineffective for failing to quash the 1998 indictment, noting that
more than 20 years had passed since the first indictment. The argument reads
as follows:
      [Counsel] should have filed a motion to quash the indictment on this
      ground. The delay between the first and second indictment was 21
      years. The length of this delay is presumptively oppressive given
      the fact that Mr. Woodfox was in state custody. The reason for the
      delay was the failure of the state to bring his case before a legal
      grand jury. The delay of more than two decades has adversely
      affected his defense. The key witness against him Hezekiah Brown,
      died before trial, as did Paul Fobb. Evidence could not be found and
      was thus unavailable for defense testing. Because of counsel’s
      failure to challenge the indictment, Mr. Woodfox’s rights to Due
      Process and Confrontation could not be honored. His conviction
      must be reversed.

(Emphasis added).




                                       17
                                  No. 08-30958

      Although Woodfox mentioned the Confrontation Clause, he presented no
coherent argument on confrontation, and this paragraph does not resemble the
claims Brown made in his § 2254 petition about counsel’s ineffectiveness as
related to Brown. The various assertions that Woodfox did make in the state
application about Brown, confrontation, and his own counsel are interspersed
and separated by many pages. Then at page 139 of his state application,
Woodfox sets out among a laundry list of claims—without discussion or
analysis—the bald statement that his “rights to due process and to confrontation
were violated by the admission of transcripts of prior testimony of Hezekiah
Brown.”
      We cannot conclude from the foregoing that Woodfox’s state application
fairly raised the distinct issue of whether his 1998 counsel should have objected
to Brown’s testimony on the ground that his 1973 counsel was denied a fair
opportunity to cross-examine and impeach Brown on the Warden’s promise. All
Woodfox did was present general principles of law and present information that
might permit an inference of such a claim. Although he presented to the state
court the concepts of Brady/Giglio and the mere suggestion that he was unable
to effectively cross-examine Brown in 1973, he made no effort to join the law
with the facts of the case.
      “It is not enough that all the facts necessary to support the federal claim
were before the state courts or that a somewhat similar state-law claim was
made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal citations omitted).
“Rather, the petitioner must afford the state court a ‘fair opportunity to apply
controlling legal principles to the facts bearing upon his constitutional claim.’”
Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Anderson, 459 U.S.
at 6). Woodfox’s state application did not afford such an opportunity to the state
court without that court first having to surmise and infer the basis for Woodfox’s
ineffective assistance claim. In addition, Woodfox was proceeding with counsel.

                                       18
                                       No. 08-30958

Although we liberally construe pro se pleadings, we do not afford such latitude
to pleadings prepared by counsel.5 See United States v. Gonzalez, 592 F.3d 675,
680 n.3 (5th Cir. 2009); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
We therefore conclude that Woodfox’s confrontation-based ineffective assistance
claim is unexhausted and procedurally barred from federal review. See Hatten
v. Quarterman, 570 F.3d 595, 605 (5th Cir. 2009).
       As noted above, we have raised the exhaustion issue sua sponte, which we
have the authority to do provided that the State has not waived it. See Tigner,
264 F.3d at 526 n.3; Clinkscale v. Carter, 375 F.3d 430, 436–37 (6th Cir. 2004);
28 U.S.C. § 2254(b)(3) (“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.”).
Although the State indicated in its answer to the § 2254 petition in the district
court that Woodfox’s claims were exhausted, we do not find an express waiver in
light of the State’s briefing of the issue.
       “The touchstone for determining whether a waiver is express is the clarity
of the intent to waive.” Carty v. Thaler, 583 F.3d 244, 256 (5th Cir. 2009)
(quotation marks and citation omitted), cert. denied,--- S.Ct. —, 2010 WL
321327, 78 U.S.L.W. 3454 (U.S. May 3, 2010)(No. 09-900). In Carty, we noted
with approval a Sixth Circuit decision that found waiver based on “‘counsel’s
conduct during the district court proceedings,’” which had “‘manifested a clear
and unambiguous intent to waive’” exhaustion.                  Id. at 257 n.9 (quoting
D’Ambrosio v. Bagley, 527 F.3d 489, 497 (6th Cir. 2008)). We held that the State

       5
         The dissent asserts that Woodfox’s state habeas application would not have prevented
the substance of the claim from being understood. Dissenting op. at 13. The dissent agrees,
however, that Woodfox made no coherent argument as to Brown and Confrontation. Id. at 11.
We do not believe the state court would necessarily understand the claim, presented as it was
amidst a voluminous, disjointed submission. See Dissenting op. at 11. In contrast to the claim
about Brown, Woodfox did make specific claims that his counsel was ineffective for failing to
object on confrontation grounds to two other witnesses–Carl Cobb and Leonard Turner.

                                             19
                                  No. 08-30958

waived the exhaustion issue in Carty because its motion for summary judgment
in the district court showed that it treated all the relevant claims as exhausted.
Id. at 257; see also Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999) (holding
exhaustion expressly waived when the State admitted in its answer to the
federal habeas petition that the prisoner had “sufficiently exhausted his state
remedies”). We have also held that there was no “express waiver” where the
State indicated that it merely “‘believed’” the prisoner had exhausted his claims,
although we concluded this was the equivalent of failing to assert the defense of
non-exhaustion. McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984) (en banc).
      The State’s answer to Woodfox’s federal habeas petition stated that “on
October 11, 2006, petitioner filed these timely and exhausted claims in the
present petition for writ of habeas corpus.” (Emphasis added). The State made
an identical statement in its memorandum in support of its answer. However,
in the body of its memorandum addressing the ineffective assistance claim
surrounding Brown’s testimony, the State argued that Woodfox was actually
making a new argument. The State first asserted that in the state habeas
application Woodfox had “limited his argument [about counsel’s failure to
challenge the indictment] to the fact that twenty-one years between the first and
second indictment as well as evidence that had been lost was presumptively
oppressive and had a prejudicial [effect on] his defense.” The State subsequently
argued that:
      In this present claim, petitioner expands on the fact that the second
      trial jury was unable to assess Hezekiah Brown’s demeanor first
      hand, that petitioner was unable to impeach Brown and otherwise
      cross examine this “critical” witness regarding such issues as a
      pardon offer made by the warden. As a result of this new argument,
      petitioner then comes to the new conclusion that a trial court “would
      have had no choice but to uphold such a challenge” and prejudice
      [from counsel’s ineffectiveness] is thereby established.




                                        20
                                  No. 08-30958

(Emphasis added). By characterizing Woodfox’s argument as a new claim in its
district court brief, the State hardly made a clear and unambiguous waiver of
exhaustion.6 At most, it simply failed to assert non-exhaustion as a defense. We
therefore hold that we are not precluded from raising exhaustion sua sponte and
finding that Woodfox’s claim is procedurally barred.
      Woodfox may not obtain federal relief on the unexhausted claim. If a
prisoner fails to exhaust state remedies and the court to which the prisoner
would be required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred due to the prisoner’s
own procedural default, “federal courts are barred from reviewing those claims.”
Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). To overcome the procedural
bar on nonexhaustion, Woodfox must “demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of
justice.”   Coleman v. Thompson, 501 U.S. 722, 750 (1991); see Ries v.
Quarterman, 522 F.3d 517, 523–24 (5th Cir. 2008).
      We find no basis for cause for failing to exhaust the claim in state court,
especially since Woodfox was represented by counsel in the state habeas
proceedings. See In re Goff, 250 F.3d 273, 276 (5th Cir. 2001) (“[I]neffective
assistance of counsel in a post-conviction proceeding cannot serve as cause to
excuse procedural default in a federal habeas proceeding.”). We likewise see no
basis to find a miscarriage of justice for not reviewing the claim. A claim of a
miscarriage of justice is limited to a claim of “actual innocence,” which requires
the prisoner to establish through new and reliable evidence “that it was ‘more
likely than not that no reasonable juror would have convicted him in the light
of the new evidence.’” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)

      6
        We note that the dissent agrees that the State has not explicitly waived the
exhaustion issue. See Dissenting op. at 3.

                                        21
                                  No. 08-30958

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The “new” evidence upon
which Woodfox’s claim rests is the Warden’s promise to assist Brown with his
pardon application. This evidence does not establish that no juror would have
convicted Woodfox.     In fact, the 1998 jury convicted Woodfox despite the
revelation of Warden Henderson’s promise. We therefore conclude that Woodfox
cannot overcome the procedural bar of non-exhaustion.
      Even assuming arguendo that Woodfox adequately presented his
confrontation-based ineffective assistance claim in his state habeas application,
we find that the district court erroneously granted federal habeas relief. To
address the district court’s grant of habeas relief on the confrontation claim, we
must determine whether the state court adjudicated the claim on the merits,
thereby requiring the application of AEDPA deference, and if so, whether the
state court’s adjudication was contrary to or an unreasonable application of
federal law.
               2. AEDPA deference
      The AEDPA’s deferential standard is afforded to a state court decision only
when the state court adjudicated the petitioner’s claims on the merits. See 28
U.S.C. § 2254. This is akin to asking whether the state court decision was
“‘substantive or procedural.’” Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)
(quoting Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)). In the instant
case, the Louisiana Supreme Court denied Woodfox’s application for supervisory
writs with a one-word denial. See State v. Woodfox, 937 So. 2d 850 (La. 2006).
“When faced with a silent or ambiguous state habeas decision, the federal court
should ‘look through’ to the last clear state decision on the matter.” Jackson v.
Johnson, 194 F.3d 641, 651 (5th Cir. 1999). The last clear state court decision
of any substance to address Woodfox’s claims was the state trial court’s decision
denying Woodfox’s habeas application. That decision, in turn, also adopted the
State’s answer to Woodfox’s application. We must therefore decide whether the

                                       22
                                  No. 08-30958

state habeas court’s decision and adoption of the State’s response was an
adjudication on the merits because it was a “substantive” decision subject to the
AEDPA deferential standard of review, or whether it was a “procedural” decision
to which deference does not apply. See Mercadel, 179 F.3d at 274.
      The state court’s “decision” in this case actually comprised two documents,
a “Judgment” and a statement of “Written Reasons.” The “Judgment” denied
Woodfox’s entire habeas application. It stated that Woodfox’s claims had been
“fully addressed” by the State’s response and that “[a] review of the record of
these proceedings, as well as the answer, indicates that there is no need to hold
an evidentiary hearing in these proceedings. For written reasons this day
adopted and assigned, the Court finds that the allegations are without merit and
the Application may be denied without the necessity of any further proceedings.”
      A separate, undated document captioned “Written Reasons” stated that
“Petitioner,” meaning Woodfox, bears the burden of proof to show he is entitled
to habeas relief. It cited LA. CODE CRIM. P. art. 930.2, and then stated that “[i]n
light of such burden of proof, the Court has fully considered the application, the
answer, and all relevant documents and has determined that Petitioner has
failed to carry his burden of proof.” The document continued, “In determining
that Petitioner’s application should be denied, the Court, moreover, adopts the
State’s Response to Application for Post Conviction Relief as the written reasons
for the Court’s decision.”
      The district court decided that the state trial court, through its adoption
of the State’s opposition to Woodfox’s post-conviction relief application, failed to
address Woodfox’s Due Process and Confrontation Clause contentions respecting
the reading of Brown’s 1973 testimony at the 1998 trial. This purported failure
by the state court to address the claim led the district court to conclude that de
novo review applied rather than the AEDPA’s deferential standard. We disagree
with the district court’s assessment.

                                        23
                                         No. 08-30958

       First, the State’s response to Woodfox’s state habeas application mirrored
the structure of Woodfox’s petition. It first discussed generally Woodfox’s factual
assertions about the various trial witnesses, and it then discussed the specific
legal claims.      In the first part of the State’s brief in a section captioned
“Hezekiah Brown,” the State said: “What is very interesting is that, although
there is discussion of the testimony of Hezekiah Brown included in the
Statement of Facts portion of the application, there is no mention of it in the
Claims for Relief section.” The State then went on to indicate how important
Brown’s testimony was and that even if Woodfox disagreed with the verdict, it
was reasonable for the jury to choose to believe the State’s witnesses. This
directly responded to Woodfox’s attack on Brown’s credibility. In the second part
of its response, the State addressed inter alia Woodfox’s specific claims of
ineffective assistance of counsel. Although it did not discuss Brown again, the
State set forth the correct legal standard under Strickland v. Washington, 466
U.S. 668 (1984), for evaluating ineffective assistance claims and issued a blanket
denial “that any of Woodfox’s claims allege deficient performance on the part of
counsel.” (Emphasis added). The state court’s judgment and written reasons,
along with the incorporated State response, thus show that the state trial court
issued a merits-based adjudication of all of Woodfox’s claims, including the claim
about Brown’s testimony.7


       7
         The dissent asserts that the State’s response neither analyzed the Confrontation
Clause nor made other legal arguments, and that the argument the state trial court must have
embraced was that the issue was not properly presented. Dissenting op. at 7 The dissent
believes the state trial court therefore based its decision on the independent, but inadequate,
state procedural grounds governing the presentation of state habeas claims. See LA. CODE
CRIM. PROC. ANN. art. 926(B)(3) & E. The failure of the State to analyze the Confrontation
Clause, in our view, is more likely because Woodfox made no coherent Confrontation Clause
argument and failed to exhaust the issue. But assuming arguendo that Woodfox adequately
raised the issue, the State made no express procedural argument under art. 926, and there is
no indication that the state trial court relied on it or another state procedural rule. Even if the
state trial court is viewed to have ruled procedurally, it also adopted as part of the State’s
response the State’s blanket denial of all of Woodfox’s ineffective assistance claims, which is

                                               24
                                       No. 08-30958

       Lest there be any doubt, we have adopted a three-part test to decide
whether a state court’s decision was an adjudication on the merits when that
decision is unclear. We consider the following:
       (1) what the state courts have done in similar cases; (2) whether the
       history of the case suggests that the state court was aware of any
       ground for not adjudicating the case on the merits; and (3) whether
       the state courts’ opinions suggest reliance upon procedural grounds
       rather than a determination on the merits.

Mercadel, 179 F.3d at 274.
       Besides stating that Woodfox’s claims had no merit and that it would
adopt the State’s response, the state court here cited LA. CODE CRIM. P. art.
930.2. That provision provides simply that “[t]he petitioner in an application
for post conviction relief shall have the burden of proving that relief should be
granted.” The Louisiana Supreme Court has cited article 930.2 in other cases
when a petitioner failed to carry his burden on the merits of the case. See State
v. LeBlanc, 937 So. 2d 844, 844 (La. 2006) (citing art. 930.2 after stating that
petitioner failed to show he pleaded guilty involuntarily); State v. Berry, 430
So. 2d 1005, 1013 (La. 1983) (citing art. 930.2 because petitioner’s claim that the
jury was not furnished with a copy of aggravating and mitigating circumstances
was “unsubstantiated and therefore without merit”). But the court has also cited
that provision when a petitioner failed to meet his burden on some procedural
point. See State v. Russell, 887 So. 2d 462 (La. 2004) (citing art. 930.2 because
petitioner failed to carry his burden of proof that post-conviction application was
timely filed). Therefore, consideration of what the state courts have done in
other cases, by itself, is not dispositive of whether the state court’s citation to
article 930.2 in this case was substantive or procedural. But when considered



a merits-based adjudication. When a state court rules alternatively on both procedural
grounds and on the merits of a prisoner’s claims, the AEDPA deference is still applicable. See
Busby v. Dretke, 359 F.3d 708, 721 n.14 (5th Cir. 2004).

                                             25
                                       No. 08-30958

in light of the other factors, we think it is clear that the state court decided all
of Woodfox’s claims on the merits.
       The second factor of the Mercadel test, whether the history of the case
suggests that the state court was aware of any ground for not adjudicating the
case on the merits, fails to show any such awareness. In Barrientes v. Johnson,
221 F.3d 741, 779 (5th Cir. 2000), we held that this factor supported a conclusion
that the state court adjudicated the merits where the State’s response to the
habeas petition in state court attacked the claims on the merits rather than
arguing the procedural point of waiver. We “surmised” that the state court was
not put on notice by the State’s response that the claim was waived. Id.
Similarly here, the State made no argument to put the state court on notice of
any procedural defect in Woodfox’s state application.8                 Instead, the State
presented only merits-based arguments under the Strickland standard and, as
noted above, denied that any of the ineffective assistance claims showed
deficient performance by counsel. Furthermore, Woodfox conceded in his § 2254
petition in the district court that the state court had ruled on the merits of his
claims, specifically stating that “the claims raised in this petition[, other than
the grand-jury claim, which was raised on direct appeal,] were presented by Mr.
Woodfox in his state postconviction application, and all claims were rejected on
the merits.”     Therefore, the history of the case suggests the state court
adjudicated the merits.
       The final prong of the three-part inquiry, “whether the state courts’
opinions suggest reliance upon procedural grounds rather than a determination
on the merits,” further tips the scale in favor of finding a merits-based


       8
          Although the dissent contends that the State’s response asserted Woodfox failed to
present his claim because it observed that Woodfox had not discussed Brown in the claims for
relief section of the state habeas application, we believe that is more akin to the exhaustion
issue. We are assuming for purposes of this discussion that Woodfox properly presented his
claim in state court.

                                             26
                                        No. 08-30958

adjudication. The state court’s judgment stated that the “record,” as well as the
State’s response, indicated no need for a hearing and that “the allegations are
without merit.” (Emphasis added). Similarly, the state court’s written reasons
stated that the court had considered “the application, the answer, and all
relevant documents” before concluding that Woodfox failed to meet his burden
of proof. The court then stated that “moreover” it would adopt the State’s
response to Woodfox’s application. “Moreover” means “[i]n addition thereto, also,
furthermore, likewise, beyond this, beside this,” BLACK’S LAW DICTIONARY 1009
(6th ed. 1990), or “in addition to what has been said.” MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 755 (10th ed. 2002). In other words, the state court
reviewed all relevant documents in the record of the proceedings, including the
State’s answer, and found no merit to any of Woodfox’s claims. In addition to
this conclusion, the court adopted the reasoning of the State’s response. There
is simply no indication in the state court adjudication that suggests a reliance
on any procedural vehicle rather than the merits to deny relief.9
       Moreover, AEDPA deference applies to a state court adjudication even
when the state court gives no indication whatsoever as to the reasons for the
decision. See Schaetzler v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (“Because
a federal habeas court only reviews 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.”); Henderson v. Cockrell, 333 F.3d
592, 598 (5th Cir. 2003) (“AEDPA’s standards apply, however, when the state’s
highest court rejects a claim without giving any indication of how or why it


       9
         Our conclusion that the state court adjudicated the merits of Woodfox’s claim is based
on our analysis of the entire three-part test under Mercadel, not solely on the state court’s
finding that Woodfox failed to carry his burden of proof, which the dissent says was simply a
“convenient generalization” by the state court. Dissenting op. at 6. Although the dissent also
faults our consideration of the word “moreover” in the state trial court’s ruling, we find an
adequate basis to believe the state trial court’s adoption of the State’s response was in addition
to its conclusion that Woodfox’s application lacked merit.

                                               27
                                        No. 08-30958

reached that decision.”). If we would accord AEDPA deference to a state court
decision that contained no explanation for its denial of relief, we are hard
pressed to deny such deference to a state court’s decision indicating that the
claims were without merit but also adopting the State’s response to the habeas
application. We therefore conclude that, assuming Woodfox properly exhausted
his confrontation-based ineffective assistance claim concerning Hezekiah
Brown’s testimony, the state court’s denial of relief was an adjudication on the
merits to which we must afford AEDPA deference.
       Turning to the merits of Woodfox’s claim, we must next determine whether
the state court’s denial of relief was contrary to or an unreasonable application
of clearly established federal law as established by the Supreme Court. See
§ 2254(d)(1).
       3. Application of AEDPA deference to the merits
       At Woodfox’s 1973 trial, Hezekiah Brown testified in response to
questioning from the State that he had not been promised any incentives in
return for his testimony, other than protection from other inmates.10 During his


       10
            The questioning as appears in the record was as follows:

       Prosecutor: Did anybody promise you anything to make you tell the truth?

       Brown: Promise me anything?

       Prosecutor: Did they?

      Brown: No. They didn’t threaten me. I sat there a long time; I waited before I could
say anything. Nobody promised me nothing.

                                             ****
        Prosecutor: All right, now, Hezekiah, because of your trial testimony here today, did
you – let me ask you this: You stated that no one from the State promised you anything for this
testimony, is that correct?

       Brown: That’s right.

       Prosecutor: All right, but we did tell you that you would not be put back in the same

                                               28
                                        No. 08-30958

1973 cross-examination, Brown denied making certain statements to defense
counsel and indicated that defense counsel was the only person to have made
any promises to help Brown.11 Brown’s direct and cross-examination were read
to the jury in 1998. As part of his defense, Woodfox called Warden Henderson,
who testified about interviewing Brown a few days after the murder. When
Brown incriminated Woodfox at this interview, he had been moved to the “dog


place at –

       Brown: That’s right.

       Prosecutor: – The penitentiary?

       Brown: They told me that.

       Prosecutor: – With Albert Woodfox?

       Brown: That’s right.
       11
            The cross-examination, in relevant part, shows the following:

      Defense counsel: Didn’t you tell me that Fess was in the dormitory at the time that
Woodfox came in there?

       Brown: No. No. I hadn’t never told you that. No.

       Defense counsel: You absolutely positive?

       Brown: I know. I ain’t no positive to it. I know I ain’t told you nothin’ about that man.
                                            ****
       Defense counsel: All right, you didn’t tell me Fess was over by the . . . water cooler?

        Brown: No. No. Now, wait a minute man. Let me tell you somethin’, I ain’t told
nothin’ that night. You come in there, and you had your pad when I come up there to meet
you.
                                               ****
        Brown: . . . You and me, you sat there and talked for quite a while, and I was
explaining my case to you, and I told you then . . . I’m sorry that you is in this case, I says.
Well, the only thing I can do is tell you that it was a cold blooded murder, and I says, I’m going
to meet you on the stand when you—that’s what I told you there that night. And you said,
that I had a good case, and if after—after this was—after this is all over with, you would help
me. You remember when you told me that—when you told me that—told me? You give me
your card, remember? Huh? You the onliest somebody that promised to help me, to do
somethin’ for me.

                                               29
                                       No. 08-30958

pen,” a minimum security area used to house the prison’s hunting dogs and to
also house trustees and inmates under protection. Henderson testified that he
promised to “protect” Brown and that he “later” promised to support Brown’s
pardon application, although Henderson could not recall when he made that
promise. When asked about Brown’s testimony in 1973 that nothing had been
promised to him, Henderson said, “Well nothing was promised to him to begin
with, but we told him, you know, we would protect him and try to help him any
way we could after he, you know, cracked the case for us.” Id. at 1964 (emphasis
added). When asked whether promises were made “before [Brown] testified,”
Henderson said, “That’s right.” Defense counsel also had Henderson identify
letters that were later written on Brown’s behalf in support of a pardon
application.12
       The foregoing testimony, although equivocal as to what promises were
made to Brown, is the basis upon which the district court held that the
admission of Brown’s 1973 testimony violated the Confrontation Clause because
Brown could not be questioned about the Warden’s promise, and that the failure
of Woodfox’s 1998 trial counsel to raise an objection was deficient performance.
We disagree with the district court.
       In order to find that the state court’s denial of relief was contrary to clearly
established federal law, we must conclude that a potential Brady/Giglio violation
in 1973 that suppressed information contradicting Brown’s testimony rendered
that testimony inadmissible at the second trial, and that Woodfox’s 1998 counsel
was objectively unreasonable for failing to raise a confrontation objection even
though the jury was aware of the impeaching information at the second trial.


       12
         Although defense counsel went to great lengths to show that Henderson helped
Brown, virtually all of the documentary evidence post-dated Woodfox’s 1973 trial and could not
have been of any benefit to him for the first trial. Further, despite defense counsel’s argument
and insinuation that Brown’s testimony was “bought and paid for” because of Brown’s eventual
pardon, the pardon did not occur until 1986, thirteen years after Brown testified.

                                              30
                                 No. 08-30958

Although the merits of Woodfox’s claim thus concern the intersection of
Brady/Giglio with Confrontation Clause jurisprudence, the overarching legal
principle is the familiar ineffective assistance standard of Strickland. Under
that standard, the petitioner bears the burden to show that counsel’s
performance fell below an objective standard of reasonableness and that the
deficiency prejudiced the defense. See Strickland, 466 U.S. at 687–88. Our
review of counsel’s performance is highly deferential, and counsel’s conduct is
presumed to fall within a wide-range of reasonable professional assistance. Id.
at 689; Soffar v. Dretke, 368 F.3d 441, 471 (5th Cir. 2004). The petitioner must
show that counsel “made errors so serious that he was not functioning as the
‘counsel’ guaranteed to the defendant under the Sixth Amendment.” Strickland,
466 U.S. at 687. To establish prejudice, the petitioner must show a reasonable
probability that, but for counsel’s deficient performance, the result of the
proceedings would have been different. Id. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. A failure
to establish either deficient performance or prejudice defeats the claim. Id. at
697.
       The performance of Woodfox’s 1998 trial counsel hinges on the objective
reasonableness of counsel’s failure to raise a confrontation-based objection to
Brown’s 1973 testimony. This requires examination of the controlling law for
confrontation-based claims.    The Supreme Court’s Confrontation Clause
jurisprudence was changed significantly when the Court decided in Crawford v.
Washington, 541 U.S. 36, 53–55 (2004), that testimonial statements from an
unavailable witness may not be introduced at trial without a prior opportunity
for cross-examination, irrespective of any exceptions for hearsay. Crawford is
not relevant to our consideration, however, because it was decided after
Woodfox’s 1998 trial and it does not apply retroactively.      See Whorton v.
Bockting, 549 U.S. 406, 409 (2007). Instead, defense counsel’s performance must

                                      31
                                       No. 08-30958

be judged based on the law that was in existence at the time of the trial. See
Paredes v. Quarterman, 574 F.3d 281, 287 (5th Cir. 2009). At the time of
Woodfox’s 1998 trial the admission of Brown’s testimony was governed by the
Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56 (1980).
       The Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the right “to be confronted with the witnesses against him.” U.S.
CONST. amend. VI. In Roberts, the Supreme Court held that the admission of a
hearsay statement will not violate the Confrontation Clause if the witness is
unavailable and the statement “bears ‘adequate indicia of reliability.’” 448 U.S.
at 66; United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004). This indicia of
reliability is present if the statement “falls within a firmly rooted hearsay
exception” or if it is shown to possess “particularized guarantees of
trustworthiness.” Roberts, 448 U.S. at 66. There is no question but that sworn
testimony, such as Brown’s, given at a prior hearing where the defendant had
an opportunity to cross-examine the now-unavailable witness ordinarily meets
the Roberts test for admission under a firmly rooted exception to hearsay. See
id. at 68 (noting “the established rule that prior trial testimony is admissible
upon retrial if the declarant becomes unavailable”); see also FED. R. EVID.
804(b)(1); LA. CODE. EVID. ANN. art. 804(B)(1).
       Woodfox, of course, not only had an opportunity to cross-examine Brown
in 1973 but he did so, questioning Brown at length about Brown’s version of the
events and testing his memory about what he saw.13 It is well-established that
“previously cross-examined prior trial testimony . . . has [been] deemed generally

       13
           Defense counsel attempted to mitigate Brown’s incriminating evidence by suggesting
that Brown had given defense counsel information contrary to the testimony, and also by
eliciting testimony that Brown could not identify Woodfox’s clothing; that Brown did not know
if Woodfox got blood on him although there was a lot of blood at the scene; and that Brown did
not know which way Woodfox went when he fled. In 1998, counsel tried to further impugn
Brown’s prior testimony by eliciting the information from Warden Henderson about the
promises to help Brown with his pardon application.

                                             32
                                        No. 08-30958

immune from subsequent confrontation attack.” Roberts, 448 U.S. at 72–73; see
also Mancusi v. Stubbs, 408 U.S. 204, 213 (1972) (“At least since the decision of
this Court in Mattox v. United States, 156 U.S. 237 (1895), prior-recorded
testimony has been admissible in appropriate cases.”).
       The crux of Woodfox’s claim is that the suppression of Warden
Henderson’s promises to Brown denied him the opportunity for cross-
examination. When asked at oral argument for authority in support of a holding
that the possibility Brown lied in 1973 means that his prior testimony could not
be used at all in the second trial after Brown was dead, Woodfox’s counsel
conceded that he had no authority directly on point and relied on the general
principles of cases like Roberts. We must uphold the state court’s decision
denying Woodfox’s claim unless it is contrary to federal law as articulated in the
clear holdings of the Supreme Court. See Thaler v. Haynes, 130 S. Ct. 1171,
1173 (2010) (“A legal principle is ‘clearly established’ within the meaning of
[§ 2254(d)(1)] only when it is embodied in a holding of this court.”); Williams v.
Taylor, 529 U.S. 362, 412 (2000) (“[A]s the statutory language makes clear . . .
§ 2254(d)(1) restricts the source of clearly established law to this Court’s
jurisprudence.”); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002) (“Clearly
established federal law refers to the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant state-court decision.”)
(internal quotation and citation omitted). We find no clear answers in the
Supreme Court’s jurisprudence, however.14

       14
           The dissent’s analysis draws from prior opinions of this court, as well as from
treatises and a factually-similar case from the supreme court of the State of Pennsylvania. We
do not consider these authorities, however, because even if we were to find them persuasive
they do not constitute clearly established federal law as articulated by the Supreme Court as
required by the AEDPA. See Renico v. Lett, 130 S. Ct. 1855, 1866 (2010) (court of appeals’
reliance on its own prior precedent was improper because circuit precedent “does not constitute
‘clearly established Federal law, as determined by the Supreme Court,’ § 2254(d)(1), so any
failure to apply that decision cannot independently authorize habeas relief under AEDPA”);
see also Salazar v. Dretke, 419 F.3d 384, 399 (5th Cir. 2005) (“[A] decision by this court or one

                                              33
                                    No. 08-30958

      The Court has suggested that while generally immune from an attack at
a subsequent trial, prior recorded testimony might be challenged as inadmissible
if counsel was prevented or limited in engaging in meaningful cross-
examination. See Roberts, 448 U.S. at 71 (noting that counsel there had not been
“‘significantly limited in any way in the scope or nature of his
cross-examination’”) (citation omitted); see also Magourik v. Warden, 237 F.3d
549, 553–54 (5th Cir. 2001) (holding that admission of prior recorded testimony
violated the Confrontation Clause because defendant “was unable to conduct any
cross-examination” due to trial court’s erroneous sustaining of prosecution
objections).   Yet, the Court has also suggested that not all limited cross-
examination violates the Confrontation Clause. See Delaware v. Fensterer, 474
U.S. 15, 20 (1985) (emphasizing that while the Confrontation Clause guarantees
an opportunity for cross-examination, it does not guarantee “cross-examination
that is effective in whatever way, and to whatever extent, the defense might
wish”).
      Woodfox contends that the Confrontation Clause afforded counsel a firm
basis to object in this case because defense counsel lacked an opportunity for
cross-examination on the critical matter of Brown’s credibility in light of the
alleged promises from the Warden. But any deficiency in the 1973 cross-
examination was due to the State’s alleged Brady violation in suppressing
information. We have found no Supreme Court authority for the proposition
that a Brady violation impacting a defendant’s prior cross-examination of a
witness, in which counsel otherwise took full advantage in questioning, renders
that prior testimony per se inadmissible at a subsequent trial. Therefore, we
cannot conclude that the state court’s denial of relief on such a basis is
unreasonable. “[I]t is not an unreasonable application of clearly established


of our sister circuits, even if compelling and well-reasoned, cannot satisfy the clearly
established federal law requirement under § 2254(d)(1).”).

                                          34
                                  No. 08-30958

Federal law for a state court to decline to apply a specific legal rule that has not
been squarely established by th[e Supreme] Court.” Knowles v. Mirzayance, 129
S. Ct. 1411, 1419 (2009) (internal quotation marks and citations omitted).
      In the absence of a specific rule from the Court governing the situation at
hand, we must ask whether it was nevertheless deficient performance under the
broader Strickland standard for counsel not to have pressed the objection. But
“because the Strickland standard is a general standard, a state court has even
more latitude to reasonably determine that a defendant has not satisfied that
standard.” Id. at 1420. This court’s review is therefore “doubly deferential” to
the state court adjudication. Id.; see also Wooten v. Thaler, 598 F.3d 215, 222
(5th Cir. 2010).
      Under this deferential review, we cannot fault the state court for denying
relief. In hindsight, it may be easy to say defense counsel could have argued
that the State’s suppression of Warden Henderson’s promise to Brown denied
Woodfox an opportunity to adequately cross-examine Brown in 1973. But we
must eliminate the distorting effects of hindsight, see Strickland, 466 U.S. at
689, and keep in mind both counsel’s perspective at the time and the alleged
precipitating Brady violation. In 1998, the Supreme Court had already said that
previously recorded trial testimony was virtually unchallengeable. See Roberts,
448 U.S. at 72–73; Mancusi, 408 U.S. at 213. Moreover, the remedy for a Brady
violation typically is a new trial at which the previously excluded evidence is
admitted. See Monroe v. Blackburn, 748 F.2d 958, 960 (5th Cir. 1984) (noting
that the new trial remedy for a Brady violation occurs because the defendant’s
right to a fair trial has been prejudiced by the suppression of evidence); United
States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978) (a violation of the
constitutional standard of fairness under Brady requires a new trial if after
conviction it is learned that suppressed evidence creates a reasonable doubt as
to guilt that did not previously exist); see also United States v. Davis, 578 F.2d

                                        35
                                  No. 08-30958

277, 280 (10th Cir. 1978) (assuming a Brady violation occurred “the most an
invocation of Brady could accomplish would be the ordering of a new trial in
which the withheld information is fully disclosed”); United States v. Coleman,
862 F.2d 455, 458–59 (3d Cir. 1988) (“The awarding of a new trial to remedy a
Brady violation insures that the defendant will be able to make full use of the
exculpatory evidence during the subsequent proceeding.”).
      In the instant case, the 1998 jury knew about Warden Henderson’s
discussions with Brown. Counsel took advantage of that information at the
second trial by closely questioning Henderson about the circumstances of
Brown’s testimony. Counsel also introduced documentary evidence showing that
Warden Henderson attempted to make good on his promise of assistance to
Brown by writing various letters in support of Brown’s pardon application, by
authorizing the prison to pay for Brown’s pardon notice, and by providing Brown
periodically with cigarettes while Brown was incarcerated.          In short, the
impeachment evidence that Woodfox contends was suppressed in 1973 was
presented along with other documentary impeachment evidence to the 1998 jury.
Woodfox may not have been able to ask Brown about the promise in 1998, but
after reviewing the trial transcript we are convinced that the jury knew Brown
allegedly had an incentive to lie, and it is not unreasonable to conclude that
defense counsel did not render constitutionally deficient performance by failing
to pursue a confrontation objection.
      Up to this point, we have assumed for the sake of the discussion that the
Warden’s testimony was impeachment evidence under Brady and that the State
suppressed the Warden’s purported promise to Brown. Although we see no
evidence in the record that the State knew at the time of the 1973 trial about
any inducements made by prison officials to Brown, the State’s subjective intent
is not determinative. See Brady, 373 U.S. at 87 (due process is violated by
suppression of material evidence irrespective of the good faith or bad faith of the

                                        36
                                       No. 08-30958

prosecution). Nevertheless, we also pause to note that it is not clear from our
review of the record that there was a Brady violation.15                    First, Warden
Henderson’s testimony was equivocal. He testified that nothing was promised
to Brown initially, other than protection, and that Brown was not told the
Warden would assist with the pardon application until Brown “cracked the case.”
This is consistent with Brown’s testimony that nothing was promised to him.
The Warden did agree with defense counsel that promises were made before
Brown testified, but this testimony, which was also elicited by defense counsel,
was internally inconsistent. Warden Henderson further specifically testified
that he did not consider his discussions with Brown “sinister” and that no one
ever suggested to Brown that he identify Woodfox as being involved in the
murder.
       Moreover, even assuming that Henderson’s testimony could impeach
Brown, this court has previously recognized that there can be no viable Brady
claim when allegedly suppressed evidence was available to the defendant
through his own efforts. Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997)
(holding that to state valid Brady claim habeas petitioner must demonstrate
inter alia that “discovery of the allegedly favorable evidence was not the result
of a lack of due diligence”); United States v. Marrero, 904 F.2d 251, 261 (5th Cir.
1990) (finding no Brady claim where defendant could have discovered
exculpatory information by interviewing witnesses). Woodfox called Warden
Henderson at the 1998 trial to testify about his interaction with Brown after the




       15
          The district court noted that in the case of co-defendant Herman Wallace a state
commissioner found a Brady violation because the state suppressed Henderson’s alleged
promises to Brown, who had also testified at Wallace’s 1974 trial; however, the state district
court rejected the commissioner’s recommendation and found no Brady violation, and the
Louisiana Supreme Court denied an application for writs. See State v. Wallace, 19 So. 3d 4
(La. 2009).

                                             37
                                  No. 08-30958

murder. If Warden Henderson was willing to testify in 1998, it is not clear why
Woodfox could not have also presented the same testimony at the 1973 trial.
      In sum, the issue of counsel’s ineffectiveness for failing to object on
confrontation grounds in 1998 to the admission of Brown’s 1973 testimony was
not raised in Woodfox’s state habeas application in a manner that gave the state
court a fair opportunity to rule on it. We do not liberally construe pleadings
prepared by counsel, and we hold the issue is unexhausted and not properly
before us. In the alternative, assuming that the issue was properly presented
in state court, we conclude that the state court’s decision was an adjudication of
the merits requiring AEDPA deference. Under that deferential standard, there
is no basis in clearly established Supreme Court holdings for the conclusion that
an unavailable witness’s prior recorded testimony is inadmissible under the
Confrontation Clause because a post-trial revelation of Brady/Giglio
impeachment evidence shows that the witness may have lied, and defense
counsel was ineffective for not objecting on that ground even though the
impeachment evidence was before the second jury. We therefore cannot find
that the denial of habeas relief on Woodfox’s claim was unreasonable or contrary
to federal law. This is so even if we were to conclude from our own independent
analysis that the denial was erroneous. See Williams, 529 U.S. at 412 (“[A]n
unreasonable application of federal law is different from an incorrect or
erroneous application of federal law.”) (emphasis in original). For this reason,
we are compelled by the deferential standard under the AEDPA to conclude that
Woodfox’s ineffective assistance claim must fail and the district court’s judgment
must be reversed.
            4. Due process
      In its discussion of counsel’s ineffectiveness relating to Brown’s testimony,
the district court held that counsel was deficient for failing to challenge the
indictment “on Confrontation Clause and Due Process grounds.” The court

                                        38
                                  No. 08-30958

reasoned that counsel should have sought to quash the indictment because, with
the passage of time since the 1973 trial, physical evidence had been lost and
several witnesses had died. The court noted that Woodfox’s counsel failed to
object that the bloodstained clothing could not be located for testing or that
counsel would be unable to cross-examine not only Brown but also Paul Fobb
and state criminologist Carl Cobb, whose prior recorded testimony was also
presented at the 1998 trial. Woodfox also urges in his appellate brief that
counsel rendered deficient performance for failing to move to quash the
indictment. We disagree.
      Although the Due Process Clause limits the time after an offense within
which the State may indict the accused, the defendant must meet a two pronged
test to show a due process violation. See Avants, 367 F.3d at 441. The defendant
must show that pre-indictment delay “‘was intentionally brought about by the
government for the purpose of gaining some tactical advantage over the accused
in the contemplated prosecution or for some other bad faith purpose’; and ‘the
improper delay caused actual, substantial prejudice to his defense’.” Id. (quoting
United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc)). Here,
there is no indication in the record, nor is there any claim by Woodfox, that
prosecutorial misconduct caused the delay in Woodfox’s second indictment.
Indeed, Woodfox’s conviction on the original 1972 indictment was set aside by
the state courts in 1992, and the State wasted little time in re-indicting him in
1993. There was therefore no basis for a due process objection to the indictment.
      Furthermore, with respect to the lost clothing, defense counsel did file a
motion to compel its production and also argued to the trial court a motion to
quash the indictment based on the absence of the physical evidence. We do not
see what more counsel could have done and find no deficient performance
concerning the clothing. As for the testimony of Fobb and Cobb, both witnesses
testified under oath at the first trial and were subject to unfettered cross-

                                       39
                                  No. 08-30958

examination. Their testimony was therefore admissible. See Roberts, 448 U.S.
at 72–73. We conclude that counsel was not deficient for failing to seek to quash
the indictment in the grounds identified by the district court.
      B. Failure to object to testimony from former prosecutor
      The district court also granted Woodfox habeas relief due to counsel’s
failure to object to the testimony of former prosecutor John Sinquefield, who
prosecuted Woodfox in the 1973 trial. Sinquefield testified at the second trial
immediately after the State read Brown’s 1973 testimony into the record. The
State called him purportedly to explain certain gestures Brown had made during
his testimony at the first trial. Defense counsel objected to the State’s attempt
to bolster Brown’s testimony with Sinquefield. The court overruled the objection
but gave a limiting instruction that the jury was to be the sole evaluator of
witness credibility. During the course of questioning, Sinquefield volunteered
the following about Brown:
      Hezekiah Brown testified in a good, strong voice, he was very open,
      he was very spontaneous, he answered questions quickly, and he
      was very fact specific. He didn’t have to hesitate and think about
      his answers, but if you got something wrong, he would stop you,
      even to the extent in one part of his testimony, I think he—he
      stopped and corrected me that he said, now, you know, wait, this
      wasn’t Woodfox just by hisself, there were others involved. He
      would even stop you if you tried to put more on Mr. Woodfox than
      he thought Mr. Woodfox did. He was very open, very quick. He
      testified, he didn’t hesitate, he testified very clearly and I was proud
      of the way he testified. I thought it took a lot of courage.

Although defense counsel had objected earlier, he did not specifically object to
the foregoing testimony.
      On direct appeal of his conviction, Woodfox argued that Sinquefield’s
testimony was improper. The Louisiana First Circuit Court of Appeal was
troubled that Sinquefield was allowed to give his opinions about Brown. The
court found no reversible error, however, because the testimony had been

                                        40
                                  No. 08-30958

unresponsive to the prosecutor’s questions and Woodfox did not specifically
object to that portion of it. The court further held, however, that even if
Woodfox’s prior objection to Sinquefield’s testimony adequately preserved the
issue, any overzealousness on the part of Sinquefield did not rise to reversible
error given the trial court’s limiting instruction.
      Woodfox naturally raised in his state habeas application and in his § 2254
petition the claim that trial counsel was ineffective for failing to object to
Sinquefield’s testimony. The state habeas court, through adoption of the State’s
answer, held inter alia that Woodfox failed to allege any actual prejudice.
      Woodfox maintains in this appeal that defense counsel was ineffective for
not objecting to the testimony. Like the state appellate court, we too are
troubled by that aspect of Sinquefield’s testimony wherein he exclaimed how
“proud” he was of Hezekiah Brown and that Brown’s testimony “took courage.”
This is the kind of testimony ordinarily found to be improper. See United States
v. Corona, 551 F.2d 1386, 1389 (5th Cir. 1977) (reversing conviction on direct
appeal where, among many other improper comments to the jury, prosecutor
stated that he was “kind of proud” of the witness). A prosecutor’s vouching for
the credibility of witnesses improperly suggests to the jury (1) that evidence not
presented at trial but known to the prosecutor supports the charges against the
defendant so that the conviction is not based only on evidence presented to the
jury, and (2) that the prosecutor’s opinion, which carries an imprimatur of the
State, should be trusted over the jury’s own view of the evidence. United States
v. Young, 470 U.S. 1, 18–19 (1985).
      Nevertheless, we do not find that the state court’s denial of relief on this
claim was unreasonable or contrary to clearly established federal law. As noted
above, the state appellate court on direct appeal held that even if the issue was
preserved, reversal was not warranted because of the trial court’s limiting
instruction. If there was no reversible error, there could be no ineffective

                                        41
                                  No. 08-30958

assistance claim because defense counsel’s failure to object could not have caused
prejudice.
      The state appellate court’s analysis was not unreasonable. A prosecutor’s
improper comments may be subject to harmless error analysis. See Young, 470
U.S. at 12 (prosecutor’s comments “must be examined within the context of the
trial to determine whether the prosecutor’s behavior amounted to prejudicial
error”); United States v. Carey, 589 F.3d 187, 193 n.4 (5th Cir. 2009) (reviewing
claim of improper vouching by prosecutor for plain error but noting that error
was also harmless); Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir. 2008)
(holding that a curative instruction may reduce risk of prejudice to defendant
from prosecutor’s improper remark).           Here, Sinquefield’s testimony was
volunteered and was relatively isolated in the context of the trial as a whole.
The trial court also gave a limiting instruction. See Richardson v. Marsh, 481
U.S. 200, 211 (1987) (“[J]uries are presumed to follow their instructions.”).
Improper prosecutorial remarks are constitutionally unfair only if they are
persistent and pronounced, or if the evidence is so weak that no conviction would
have occurred but for the remarks. Hughes, 530 F.3d at 347. Sinquefield’s
comments were not pervasive, and the jury had sufficient evidence from which
to disbelieve Brown if it so chose.           The jury resolved the credibility
determination against Woodfox, and we do not believe the comment from
Sinquefield likely tipped the balance.
      Moreover, defense counsel did attempt to object to improper bolstering by
Sinquefield at the commencement of the testimony. Although the state appellate
court held the objection insufficient to preserve error, it is apparent that counsel
was not simply sitting idly by during the testimony, and we are not convinced
the jury would not have convicted Woodfox but for counsel’s failure to object a
second time. Therefore, Woodfox has not shown that but for counsel’s alleged
error the results of the proceeding would have been different.

                                         42
                                   No. 08-30958

      We stress again that the issue before us is not whether we would have
ruled differently, or even whether Woodfox has made the necessary showing
under Strickland; rather, the issue is whether the state court’s decision that
Woodfox has not made that showing was unreasonable.             See Gonzales v.
Quarterman, 458 F.3d 384, 390 (5th Cir. 2006) (citing Busby v. Dretke, 359 F.3d
708, 717 (5th Cir. 2004)). We conclude that the state court’s decision that there
was no reversible error from Sinquefield’s testimony was not an unreasonable
application of clearly established federal law, which in turn means it was not an
unreasonable application of clearly established federal law for the state court to
find no prejudice from defense counsel’s failure to object. We therefore reverse
the district court’s grant of habeas relief for this claim.
      C. Failure to investigate
      The district court granted Woodfox habeas relief on three claims related
to defense counsel’s failure to investigate prior to the 1998 trial. These claims
involved the bloodstained clothes that Sheriff Daniel seized from Woodfox in
1972, the bloody print found at the scene of the murder, and evidence of witness
Paul Fobb’s blindness.
      “[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary."
Strickland, 466 U.S. at 691. Any decision by counsel not to investigate is
assessed for reasonableness under all the circumstances, with a heavy measure
of deference to counsel’s judgment. Id. “In assessing counsel’s investigation, we
must conduct an objective review of their performance, measured for
reasonableness under prevailing professional norms, which includes a
context-dependent consideration of the challenged conduct as seen from counsel’s
perspective at the time.” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (internal
quotation marks and citations omitted). The reasonableness of an investigation
involves “not only the quantum of evidence already known to counsel, but also

                                        43
                                  No. 08-30958

whether the known evidence would lead a reasonable attorney to investigate
further.” Id. at 527. Bearing these principles in mind, we consider each of
Woodfox’s claims in turn.
            1. Bloodstained clothing
      The State presented testimony from Carl Cobb, a supervisor at the State
Police Crime Lab, who testified at Woodfox’s 1973 trial about blood stains on the
clothing that Sheriff Daniel seized from Woodfox. According to Cobb, stains on
the three items of clothing were all found to be blood, but the sample size on two
items (the pants and shoe) were too small to determine whether the blood was
human or animal. The third item (a jacket) was found to contain human blood,
but again the sample was too small to determine anything else. Cobb testified
that the presence of blood was determined by use of a benzidine test, while the
origin of the blood (human or animal) was tested with a pricipitin test. Because
Cobb had died by the time of the second trial in 1998, the State read Cobb’s
testimony into the record.     In 1973, defense counsel stipulated to Cobb’s
qualifications as an expert and conducted little cross examination.
      The district court faulted the 1973 defense counsel for failing to ask Cobb
about the testing methodologies and procedures, the experience and competency
of the state crime lab personnel, or the chain of custody of the clothing. The
district court held that in light of these problems with the 1973 cross-
examination, trial counsel in 1998 should have objected to the introduction of the
testimony or obtained his own expert evidence to counter Cobb’s opinions.
      We do not find counsel ineffective for failing to object to the introduction
of Cobb’s prior recorded testimony. Cobb was under oath at the 1973 trial and
defense counsel had ample and unrestricted opportunity to cross-examine him.
Because he was dead and unavailable in 1998, the testimony was admissible.
See Roberts, 448 U.S. at 68. The district court suggested Woodfox could have
obtained expert evidence to show that Cobb’s opinions were inadmissible as

                                       44
                                  No. 08-30958

scientifically unreliable. See, e.g., State v. Foret, 628 So. 2d 1116, 1121–22 (La.
1993) (discussing requirements for admission of expert scientific testimony); see
also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). But Woodfox
stipulated at the 1973 trial to the expert’s qualifications. Perhaps the 1973
counsel was ineffective for doing so, but that is not a claim properly before us in
this case. Further, Woodfox cites no authority, let alone clearly established
authority from the Supreme Court, that prior trial testimony from an expert,
whose qualifications were stipulated to by the defendant, is rendered
inadmissible because a contemporary expert at a second trial may disagree with
the first expert’s methods or conclusions. Viewing the matter from counsel’s
perspective in 1998, the prior recorded testimony of the now-unavailable witness
was admissible. Counsel also knew that the testimony was at best inconclusive
because the purported blood on the clothing was not matched to the victim,
Woodfox, or anyone else. We perceive no constitutional deficiency in failing to
object to the admission of Cobb’s testimony under these circumstances. Of
course, counsel could still have attacked Cobb’s conclusions with his own expert
witnesses at the second trial, which we consider next.
      Woodfox maintains in this appeal, consistent with the district court’s
opinion, that counsel was ineffective for failing to obtain his own experts to
discredit Cobb by showing that the testing procedures used in 1973, specifically
the benzidine and precipitin tests, were inadequate or scientifically invalid for
determining the presence of blood on the clothing. Woodfox points to two expert
witnesses from whom he obtained declarations in 2002 during the post-
conviction state habeas proceedings that demonstrated purported deficiencies
in Cobb’s testimony and testing methodology. The district court also relied in
large part on the existence of these experts’ declarations for its finding that 1998
counsel rendered ineffective assistance.



                                        45
                                  No. 08-30958

      At bottom, Woodfox’s claim is one of uncalled witnesses. Claims that
counsel failed to call witnesses are not favored on federal habeas review because
the presentation of witnesses is generally a matter of trial strategy and
speculation about what witnesses would have said on the stand is too uncertain.
See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.1985). For this reason, we
require petitioners making claims of ineffective assistance based on counsel’s
failure to call a witness to demonstrate prejudice by “nam[ing] the witness,
demonstrat[ing] that the witness was available to testify and would have done
so, set[ting] out the content of the witness’s proposed testimony, and show[ing]
that the testimony would have been favorable to a particular defense.” Day v.
Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). This requirement applies to both
uncalled lay and expert witnesses. Id.
      Woodfox presented the declarations from the expert witnesses to cast
doubt on the State Police Crime Lab’s 1973 findings by criticizing the benzidine
and precipitin tests and explaining how advanced testing procedures, such as
DNA testing, should have been performed in 1998. Although the experts
declared as part of the state habeas proceeding that if called to testify they could
testify competently to the matters contained within the declarations, they did
not state that the experts were available to testify at trial in 1998 and would
have done so, or that they would have testified to the same extent as their
opinions presented in the declarations.       See id.    This is not a matter of
formalism. In Day, we addressed very similar circumstances. The petitioner
there presented an expert affidavit in post-conviction proceedings rebutting the
opinions of the State’s experts, but he failed to show the expert was available to
testify at trial and would have done so. We stressed that the petitioner’s claim
of uncalled expert witnesses was therefore subject to “the exact problem of
speculation that the Fifth Circuit seeks to avoid by requiring the prejudice
showing set forth [above].” Id. In other words, we have no evidence beyond

                                        46
                                       No. 08-30958

speculation that in 1998 defense counsel could have found and presented an
expert witness who would have testified as he claimed in his post-conviction
applications. See id.
       Moreover, we find that Woodfox’s claim fails for other reasons. First,
“[t]he scope of a defense counsel’s pretrial investigation necessarily follows from
the decision as to what the theory of defense will be.” Soffar, 368 F.3d at 443.
Here, the theory of the defense was that the clothing seized by Sheriff Daniel
and tested by the State did not belong to Woodfox, who consistently denied that
the clothes were his and so testified at trial. Although counsel could have sought
experts to challenge Cobb’s scientific testimony about the blood, we do not find
that failure to do so was unreasonable in light of Woodfox’s adamant insistence
that he wore other clothes.16
       Second, we do not find Cobb’s testimony so crucial to the State’s case that
defense counsel’s failure to obtain a blood expert caused Woodfox prejudice in the
Strickland sense. The sample sizes on the three items of clothing were so small
that Cobb could not determine conclusively whether the purported blood was
even human on two of them. The testimony at trial was that the crime scene
was very bloody, and counsel was able to reasonably argue that with all of the
blood at the scene the jury should have expected to see bloody items positively
traceable to the killer but that there were no such items. Woodfox also worked
in the prison kitchen, which provided still another reasonable explanation for
the presence of blood or other substances on the clothing. In short, the absence

       16
          Woodfox’s experts suggested that “sloughed off skin cells” and hair obtained from the
clothes could have been subjected to DNA testing in 1998 to establish a DNA profile of the
habitual wearer of the clothing. In theory, this profile could then have resolved whether or not
the clothing belonged to Woodfox. The district court believed that counsel was ineffective for
failing to pursue such a course of action. As noted above, however, the clothing had been lost
by the time of the trial and therefore was unavailable for testing. We therefore cannot find
that defense counsel was ineffective for not having the clothing tested. The same reasoning
applies to the experts’ opinions that the blood stains should have been subjected to DNA
testing as well. Counsel could not have tested that which no longer existed.

                                              47
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of a rebuttal blood expert did not affect other avenues for mitigating the physical
evidence.
       Furthermore, with respect to the finding that blood on the jacket seized
from Woodfox was human, Cobb indicated that this result was obtained from the
precipitin test. One of Woodfox’s experts agreed that a precipitin test can be
used to determine whether blood is human or animal, but he averred that the
test can be unreliable and a false positive could result if it were not performed
properly. The expert opined that further detail should have been included in the
State’s lab reports in order to determine how the test was conducted and that
additional confirmatory testing should have been done in 1998. But the expert
did not opine that there was any indication that the State had performed the test
incorrectly, and of course further testing could not be conducted because the
clothing was no longer available. The expert opinion was therefore speculative.
Cf. Greiman v. Thalacker, 181 F.3d 970, 974 (8th Cir. 1999) (petitioner failed to
show ineffective assistance for failing to object to State’s expert rebuttal witness
where a reasonable jury would have accepted conclusions of State’s experts over
the speculative opinions of the defendant’s experts).
       Finally, there was still evidence from other witnesses placing Woodfox at
the scene and identifying him as the killer. In order to establish prejudice,
Woodfox was required to show more than a mere possibility that counsel’s errors
could have affected the outcome of the trial. See United States v. Drones, 218
F.3d 496, 501 (5th Cir. 2000). He was required to establish a reasonable
probability. We cannot conclude from all the circumstances that there is a
reasonable probability that but for counsel’s failure to call a blood expert to rebut
Cobb’s testimony, the jury would not have convicted Woodfox.17

       17
          Woodfox asserts in his appellate brief that counsel was also ineffective for failing to
discredit Cobb’s testimony by presenting evidence of a mid-1970s study conducted by the
Department of Justice. Woodfox asserts that the study, which examined 200 crime
laboratories around the country, found that “71.2% of laboratories failed,” and that counsel

                                               48
                                       No. 08-30958

              2. Bloody print
       In 1973, the State presented at the first trial testimony from Steven
Leddell, who was employed by the Louisiana State Police and who participated
in the investigation after the murder. Leddell testified that he examined the
crime scene and located a bloody fingerprint on the door to the Pine 1 dorm,
which he photographed.           Leddell explained that although the print was
identifiable, it did not match the fingerprints on file for either Woodfox or any
of the other defendants charged in the case. Relying on the exculpatory nature
of this prior testimony, defense counsel at the second trial in 1998 argued in his
opening statement to the jury that, although a bloody fingerprint was found at
the scene, there would be no evidence at trial linking that fingerprint to
Woodfox.
       The State then presented testimony from Carol Richard, a State Police
fingerprint examiner, who testified for the first time that she thought the print,
previously long believed to be a fingerprint, was actually a palm print. The
exculpatory nature of the print would be affected if it was from a palm instead
of a finger because Richard testified that no comparisons had been made
between anyone’s palm prints and the print found at the scene. Therefore
Woodfox would no longer be positively excluded as the source of the print.
       Defense counsel objected to Richard’s testimony on the basis of undue
surprise because all along the State had represented the print was from a finger.
The trial court overruled the objection. The court held that rather than simply
rely on the expert opinion from 1973, Woodfox could have obtained his own


could have used this study to exclude Cobb’s testimony as unreliable. This study did not form
part of the district court’s decision. Moreover, the study did not make public the results from
individual laboratories. It therefore failed to identify any deficiency in the Louisiana State
Police Crime Laboratory. We fail to see, therefore, how this speculative evidence would have
rendered Cobb’s testimony inadmissible, and Woodfox’s conclusory argument is insufficient to
support a claim of ineffective assistance of counsel for failing to present the evidence. See
Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998).

                                              49
                                 No. 08-30958

expert to independently examine the print and either confirm or refute the
State’s experts. Woodfox subsequently presented as part of his defense the prior
testimony of Leddell, who, like so many other witnesses, was no longer available
for the second trial.
      The district court here held that defense counsel rendered ineffective
assistance for failing to investigate and obtain a fingerprint expert. The court
noted that the state trial court had even discussed the fact that funds were
available for the court to appoint an expert. The district court reasoned that if
defense counsel had consulted his own expert rather than rely on the 1973
testimony of Leddell, counsel could have known before trial whether the print
was from a finger or palm and been prepared to refute Richard’s testimony. The
district court also noted that Woodfox presented in both his state habeas
application and his § 2254 petition a declaration from a fingerprint expert, who
disagreed with Richard and opined that the print was from a finger, specifically
a thumb, rather than a palm. Assuming the print was from a palm, however,
the expert also compared the print to Woodfox’s palm prints and concluded there
was no match.
      We disagree with the district court’s finding of ineffective assistance.
First, as with his claims respecting the failure to call experts to evaluate the
testing of the bloody clothes, Woodfox has not shown that his fingerprint expert
was available to testify at the 1998 trial. The claim of failing to present an
expert witness is therefore unavailing. See Day, 566 F.3d at 538.
      Second, after eliminating the distorting effects of hindsight, we find no
deficiency in counsel’s performance. Counsel knew in 1998 that the 1973 expert
had given sworn testimony that the bloody print was a fingerprint and that it
matched neither Woodfox nor anyone else charged in the case. Counsel could
have obtained an expert to confirm that opinion, but had he done so counsel also
risked potentially uncovering damaging information depending on what the


                                       50
                                   No. 08-30958

retained expert found. Counsel was thus faced with a dilemma: he could do
nothing in the face of evidence that did not inculpate Woodfox and in fact
exculpated him, or he could retain an expert who possibly might disagree with
the prior sworn testimony. “Counsel’s decision not to pursue evidence that could
be ‘double-edged in nature [was] objectively reasonable and therefore does not
amount to deficient performance.’” Drones, 218 F.3d at 501 (quoting Lamb v.
Johnson, 179 F.3d 352, 358 (5th Cir. 1999)) (other citations omitted).
      It is axiomatic that the State bears the burden of proof in any criminal
case, and a defendant need prove nothing. See United States v. Manetta, 551
F.2d 1352, 1357 (5th Cir. 1977). Unless there was some reason for counsel to
reasonably doubt that the bloody print was a fingerprint, which is not apparent
from the record, we see no deficiency in counsel’s decision to hold the State to its
burden and to rely on the prior sworn testimony that in no way inculpated
Woodfox.
      In support of its decision that counsel rendered deficient performance by
failing to obtain an expert, the district court relied largely on the Sixth Circuit’s
decision in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). The court there
held that counsel for a defendant convicted of arson rendered ineffective
assistance because he did not conduct a reasonable investigation or adequately
consult experts to test the State’s scientific evidence that a fire was caused by
the use of accelerants. We find Richey and other similar cases cited in the
district court’s opinion inapposite because they concerned expert opinions from
government witnesses that inculpate the defendant. But here the State’s
previously presented expert provided testimony that tended to exonerate
Woodfox. Counsel’s duty is to reasonably investigate or make a reasonable
decision that no further investigation is necessary. See Strickland, 466 U.S. at
691. Given the information known to counsel at the time, we see no reason for



                                         51
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counsel to have believed further investigation of the bloody print was necessary.
See Wiggins, 539 U.S. at 527.
      Finally, we also conclude that the absence of a fingerprint expert did not
cause Woodfox prejudice that warrants habeas relief. The district court held
that a fingerprint expert could have provided support for the theory that the
print was a fingerprint, and not a palm print, so that the print retained some
exculpatory value. But although the print-as-a-palm-print theory may have
reduced the print’s exculpatory nature, it did not eliminate it altogether.
Counsel argued to the jury in his opening statement that there was no bloody
print evidence linking Woodfox to the crime scene. That remained true even if
the print was a palm print because no match was made to Woodfox. Even after
Richard’s testimony the jury was left to wonder why the print was not tested
against Woodfox’s prints. Richard testified that palm prints were not routinely
included on a prisoner’s fingerprint card at Angola, and that the print was not
sufficiently detailed to run it through the State’s automated fingerprint
database, which went online in 1988.        However, defense counsel elicited
testimony from Richard that the print was identifiable and could be compared
manually with other prints. Thus, even accepting Richard’s testimony that the
print came from a palm, it did not inculpate Woodfox, and it likely would have
caused the jury to wonder why the State did not manually compare it with
Woodfox’s prints. Furthermore, defense counsel presented the prior testimony
of Leddell as part of the defense case, which contradicted Richard’s testimony.
Although Richard testified about the improvement and evolution of fingerprint
examination since the first trial in 1973, the jury was still presented with two
State witnesses who gave contrary opinions.
      We conclude from the totality of the circumstances that the state court’s
denial of habeas relief on the claim that counsel should have retained a



                                       52
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fingerprint expert was not an unreasonable application of clearly established
federal law.
               3. Paul Fobb’s blindness
        Finally, the district court also found defense counsel ineffective in 1998 for
failing to investigate evidence to discredit inmate Paul Fobb, who testified in
1973 that he saw Woodfox enter the Pine 1 dormitory and then throw a rag into
the Pine 4 dorm. Fobb’s testimony from the first trial was read into the record
because he, too, was dead by the time of the second trial. The district court
reasoned that defense counsel in 1998 should have presented Fobb’s medical
records and/or consulted with experts about the records in order to demonstrate
that Fobb’s severe visual impairments rendered it unlikely for him to have seen
what he claimed.        The court also found that counsel rendered deficient
performance by failing to make further efforts to locate another inmate, Clarence
Franklin, who had testified at the first trial that Fobb did not see well and would
stumble over things. Because the State refused to stipulate that Franklin was
unavailable in 1998, the trial court refused to allow defense counsel to read
Franklin’s prior testimony into the record.
        We conclude that Woodfox failed to demonstrate that counsel was
ineffective for failing to pursue further evidence of Fobb’s vision problems
because the jury was well-aware of Fobb’s limited eyesight from other evidence.
During Fobb’s direct examination by the State, Fobb himself conceded that he
had no vision in his right eye and had severe glaucoma in his left eye. Although
Fobb claimed that he could see well enough at the time of the murder in April
1972, defense counsel extensively cross-examined Fobb about his vision.
Counsel established that Fobb had been completely blind in his right eye since
1967.    Counsel also elicited testimony from Sheriff Daniel that Fobb was
considered to be legally blind. Joseph Richey also testified on direct examination
that Fobb was going blind. Counsel further asked Warden Henderson about


                                          53
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Fobb’s condition, but Henderson was unaware of it.18 Counsel argued to the jury
both in opening and closing statements that Fobb was blind. The question of
Fobb’s credibility due to vision problems was certainly palpable at trial, and
additional medical records and testimony concerning Fobb’s vision would have
been cumulative to evidence already before the jury.               See Skinner v.
Quarterman, 528 F.3d 336, 345 n.11 (5th Cir. 2008) (“[A]ny ineffective assistance
claim must falter where the evidence to be discovered is so similar and
cumulative that failure to find and present it would not prejudice the result.”).
      The district court noted that two expert witnesses retained by Woodfox as
part of his post-conviction proceedings opined based on a review of Fobb’s
medical records that Fobb was “very probably significantly visually impaired”
at the time of the murder and that it would have been “impossible” for Fobb to
have identified someone 30 to 40 feet away by vision alone. Because there is no
indication in the record that these experts were available to testify and would
have done so at the 1998 trial, there can be no claim of ineffectiveness for failing
to call them as witnesses. See Day, 566 F.3d at 538. Moreover, Fobb never
testified to the exact distance that he was from Woodfox when he saw Woodfox
enter the Pine 1 dorm. We therefore find this evidence not only cumulative but
also speculative.
      We also note that counsel conceivably could have had a strategic reason
for not presenting expert and medical record evidence concerning Fobb’s vision.
As part of the defense, counsel called Gary Gremillion, who in 1981 became the
prison’s Classification Administrator, to testify about Fobb’s release on a medical
furlough in 1974. The examination of Gremillion also showed that Fobb was
blind, but defense counsel elicited Gremillion’s view that Fobb did not meet the
usual requirements for a medical furlough, at least under the policies in effect


      18
         Defense counsel further sought to discredit Fobb before the jury by offering
psychological reports showing that Fobb was mentally retarded.

                                         54
                                    No. 08-30958

when Gremillion became Classification Administrator.             Counsel intimated
through Gremillion that Fobb was given special treatment in return for his
testimony against Woodfox. This was consistent with the overall defensive
strategy evident at trial to show that prison officials framed Woodfox and
induced the testimony against him.             But counsel arguably could not
overemphasize Fobb’s blindness through the medical records because then it
might look like Fobb deserved the furlough. Instead, counsel suggested that
Fobb’s testimony was “bought and paid for.” While counsel did not ignore Fobb’s
vision, he also presented evidence to suggest that the State essentially bribed
Fobb.     We do not find such a trial strategy to have rendered the trial
fundamentally unfair. See Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005)
(“A conscious and informed decision on trial tactics and strategy cannot be the
basis for constitutionally ineffective assistance of counsel unless it is so ill chosen
that it permeates the entire trial with obvious unfairness.”) (internal quotation
marks and citation omitted).
        Furthermore, we believe the absence of additional evidence about Fobb
does not rise to the level of prejudice under Strickland given that Hezekiah
Brown and Joseph Richey also placed Woodfox at the scene of the murder. In
light of this evidence, and our discussion above, we cannot conclude that but for
counsel’s failure to further discredit Fobb’s eyesight there is a reasonable
probability that the jury would not have convicted Woodfox. See Strickland, 466
U.S. at 694.




        D. Failure to object to hearsay testimony
        Woodfox argued in the state and district courts that his trial counsel was
ineffective for failing to object to the State’s questioning of three witnesses that
elicited hearsay responses about statements made by Chester Jackson. Jackson,

                                          55
                                 No. 08-30958

who did not testify in Woodfox’s first trial, pleaded guilty to manslaughter in
connection with Miller’s murder and then testified in 1974 against co-defendants
Herman Wallace and Gilbert Montegut. In 1998, the State sought pre-trial
approval to use Jackson’s 1974 testimony as evidence in Woodfox’s second trial
because Jackson had died in the interim. The Louisiana First Circuit Court of
Appeal ruled that the prior testimony was inadmissible hearsay because
Woodfox never had an opportunity to cross-examine Jackson. Despite this
ruling, Woodfox contends, and the district court agreed, that the State
impermissibly elicited hearsay testimony about an incriminating statement
Jackson gave to prison officials during the murder investigation.
      The testimony at issue came from Sheriff Daniel, Warden Henderson, and
Deputy Warden Lloyd Hoyle. Because of their similarity, we first consider the
testimony of Daniel and Henderson. During questioning of Sheriff Daniel about
the investigation of Miller’s murder, the State established that officials took a
statement from Jackson on April 19, two days after the murder and after Daniel
had obtained the statement from Hezekiah Brown identifying Woodfox as the
killer. The prosecution asked whether Daniel had “acquire[d] any information
from Chester Jackson that changed [his] mind about issuing an arrest warrant”
for Woodfox. Daniel responded negatively.
      The State similarly cross-examined Warden Henderson, who had been
called by Woodfox, about the investigation. Henderson stated that Hezekiah
Brown had incriminated Woodfox, Wallace, and Jackson, and that prison
officials decided to confront Jackson because he was the “weakest of the three.”
Jackson then gave his statement. When Henderson began to state what Jackson
had said, defense counsel immediately objected. The prosecutor instructed
Henderson not to say what Jackson told him, but asked “did you get any
information from Chester Jackson that contradicted what Hezekiah Brown had
told you about Albert Woodfox’s involvement in this case.”          Like Daniel,


                                       56
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Henderson also responded negatively. Woodfox contends that defense counsel
should have objected to Daniel’s and Henderson’s testimony.
      Under the Louisiana rules of evidence, an investigating officer may be
permitted to refer to statements made to him by other persons involved in the
case without constituting hearsay if it explains his own actions during the course
of an investigation and the steps leading to the defendant’s arrest. See State v.
Watson, 449 So. 2d 1321, 1328 (La. 1984); State v. Edwards, 406 So. 2d 1331,
1349 (La. 1981). This hearsay exception has limits, however, and generally will
not include an “explanation” that “involves a direct assertion of criminal activity
against the accused.” State v. Hearold, 603 So. 2d 731, 737 (La. 1992).
      The district court held that the questioning of Daniel and Henderson
indirectly elicited the substance of Jackson’s statement. Woodfox contends on
appeal that the testimony readily revealed that Jackson had stated that Woodfox
participated in the murder. Under this reasoning, the testimony about Jackson’s
statement would fall outside of the “explanation” exception for hearsay because
it would constitute a direct out-of-court accusation by Jackson against Woodfox.
We conclude, however, that the testimony plainly did not reveal what Jackson
said. It merely demonstrated that during the course of the investigation, Daniel
and Henderson did not learn anything to change their minds about what
Hezekiah Brown told them. This is unlike State v. Wille, 559 So. 2d 1321 (La.
1990), where the Louisiana Supreme Court held that an investigating officer’s
testimony about statements from witnesses improperly revealed the substance
of accusatory hearsay assertions against the defendant. The court noted that the
investigator there was careful not to say that the witnesses told him the
defendant killed the victim, but he did say that the witnesses led him to conclude
that the defendant was the prime suspect and to believe that the defendant was
responsible for the crime. Id. at 1332 n.8. That is not true here, where Brown
had already incriminated the defendant and neither Daniel nor Henderson

                                        57
                                     No. 08-30958

stated that Jackson named Woodfox or led them to believe Woodfox was
involved. For all the jury knew from Daniel and Henderson’s testimony, Jackson
might have said nothing at all about Woodfox. Therefore, we conclude that it is
not unreasonable to find that counsel was not deficient for failing to object to the
testimony, which otherwise helped explain the course of the investigation.19
      Woodfox’s claim about Deputy Warden Lloyd Hoyle’s testimony requires
a little more discussion, but we conclude that the state court’s denial of relief
with respect to that claim was also not unreasonable. Woodfox’s defensive
strategy throughout the trial was to show that prison officials targeted him after
the murder and framed him for the crime because he was considered to be a
troublemaker and a political activist. He claimed that he was immediately
placed in lockdown status as part of a biased investigation and that prison
officials influenced the other inmates to lie about his involvement in the murder.
In support of this theory, defense counsel called Deputy Warden Hoyle and
repeatedly asked Hoyle about whether the pace of the investigation had been too
quick and whether Hoyle believed people were blamed who were not involved.
He sought agreement from Hoyle that Woodfox was already a suspect on April
17, the day of the murder, before officials had even interviewed anyone. When
Hoyle’s responses did not support Woodfox’s theory, defense counsel asked the
following questions:
      Defense counsel: If I told you that – that Mr. Woodfox was formally
      charged by a grand jury in this matter two and a half weeks after
      the incident, would that refresh your recollection?

      Hoyle: No it wouldn’t refresh my recollection at all, ‘cause I heard
      his name mentioned on the nineteenth.



      19
         We also note again that with respect to Henderson’s testimony, defense counsel did
lodge an immediate objection when Henderson was about to state what Jackson said. This
prompted the prosecutor to specifically instruct Henderson not to relate the contents of
Jackson’s statement.

                                            58
                                 No. 08-30958

      Defense counsel: Okay. But, that was the first time you – you
      heard his name mentioned.

      Hoyle: That’s the only time I heard his name mentioned, by one of
      the perpetrators who was with him.

      Defense counsel: Okay. But, that was on the nineteenth?

      Hoyle: That was on the nineteenth, at the A Building.

      Defense counsel then tendered Hoyle for cross-examination, and the
prosecutor immediately asked the following:
      Prosecutor: Mr. Hoyle, you – was the nineteenth, that statement
      that you’re talking about, was that the statement – was that
      Chester Jackson?

      Hoyle: That was a prelude to the statement of Chester Jackson.

      Prosecutor: And was that the only statement that you were present
      for, during the first couple of days?

      Hoyle: I didn’t even stay for the statement, basically. I stayed for
      the minute that a certain convict walked into that interrogation
      room and admitted his role in the thing, and named Woodfox, and
      Wallace as the perpetrators of that stabbing. I couldn’t stand even
      to be in the room with that pair. I left.

      The district court held that defense counsel was ineffective for failing to
object to this testimony because it directly revealed Jackson’s hearsay statement
that implicated Woodfox. The State contends that the testimony was admissible
as relevant to explain the investigation’s progress and also to rebut Woodfox’s
conspiracy theory defense.    We agree that because the statement directly
accused Woodfox, the mere fact that it explains the progression of the
investigation “may not be used as a passkey to bring before the jury the
substance of the out-of-court information that would otherwise be barred by the
hearsay rule.” Hearold, 603 So. 2d at 737. That does not end the matter,


                                       59
                                  No. 08-30958

however, because although an investigating official’s testimony explaining his
conduct almost always has only marginal relevance and will generally be
inadmissible when it reveals accusatory hearsay statements, the Louisiana
Supreme Court has indicated that the conduct of an investigating officer will
sometimes need to be explained. Wille, 559 So. 2d at 1331 & n.7. To be sure,
such a necessity will occur “‘only in rare instances,’” id. (citation omitted), and
requires “some unique circumstances in which the explanation of purpose is
probative evidence of a contested fact . . . .” Hearold, 602 So. 2d at 737. We
think the instant case presents the kind of rare instance contemplated by the
Louisiana Supreme Court.
      Defense counsel’s direct examination of Hoyle put at issue the
circumstances under which Woodfox became a suspect, particularly when and
how Hoyle first heard Woodfox was suspected. Counsel clearly suggested that
Woodfox was targeted from the start on the investigation. Hoyle’s testimony
directly contradicted that theory. It was therefore probative of a contested issue
at trial, and we cannot say an objection from counsel would have been sustained.
See id.; see also State v. Guy, 669 So. 2d 517, 525 (La. Ct. App. 1996) (holding
that testimony about informant’s tip was not inadmissible where inter alia the
propriety of the officer’s actions was made relevant by the defense’s theory that
informant was unreliable and was paid to fabricate testimony against
defendant). Furthermore, information learned by investigators during the
course of an investigation will often have an “impermissible hearsay aspect as
well as a permissible nonhearsay aspect,” at which point “the issue of relevancy
becomes significantly interrelated with the hearsay issue.” Wille, 559 So. 2d at
1331. The court is required to “balance the need of the evidence for the proper
purpose against the danger of improper use of the evidence by the jury.” Id.
This balancing question is an issue for the state court applying state law. On
habeas review we will defer to a state court’s interpretation and application of

                                        60
                                  No. 08-30958

state law because we search only for violations of federal law. See Fierro v.
Lynaugh, 879 F.2d 1276, 1278 (5th Cir. 1989).
      Woodfox argues that the testimony from Daniel, Henderson, and Hoyle
did not refute his trial defense because it did not explain why prison officials
initially decided to question Jackson, nor did it reveal that Jackson made
allegations that he was beaten during questioning. But Woodfox could have
brought out this information himself, and he makes no allegation that counsel
was ineffective for not doing so. Because Woodfox put the propriety of the
investigators’ conduct at issue in his direct examination as part of his reasoned
trial strategy, and Hoyle’s testimony provided an explanation of the conduct, we
conclude that defense counsel was not ineffective for failing to object.
      We also agree with the State that Woodfox failed to show prejudice under
Strickland from counsel’s alleged deficiency in failing to object to the testimony
of these witnesses. As noted above, neither Daniel nor Henderson revealed the
substance of Jackson’s statement.      And while Hoyle testified that Jackson
incriminated Woodfox, this hearsay testimony was cumulative of testimony from
Hezekiah Brown and Joseph Richey. Because the testimony was cumulative of
other evidence, we cannot hold that but for counsel’s failure to object the results
of the trial would have been different. See Strickland, 466 U.S. at 694; see also
United States v. Allie, 978 F.2d 1401, 1408–09 (5th Cir. 1992) (holding on direct
appeal that improper admission of hearsay evidence that was merely cumulative
constituted harmless error). We therefore hold that it was not an unreasonable
application of clearly established federal law for the state court to conclude that
Woodfox failed to show his counsel was ineffective for failing to object to the
testimony.
                                IV. Conclusion
      This was not a perfect trial, and certainly the jury’s task was complicated
by the great lapse in time between the crime and the trial, which resulted in the

                                        61
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deaths of many witnesses, the loss of memory, and the loss of physical evidence.
Those issues are not uncommon when a defendant is subject to a second
prosecution after an earlier successful appeal. Nevertheless, we must keep in
mind only the clear legal issues presented by the case and the very deferential
scope of review of a state habeas court’s decision, which limits our review to
reasonableness, not whether we think the state court decision was merely
incorrect or erroneous. Under that deferential standard, and for the foregoing
reasons, we conclude that the district court erred in its conclusion that counsel
rendered constitutionally ineffective assistance.20 We therefore VACATE the

       20
          In addition to his ineffective assistance claims, Woodfox raised a Brady claim in his
§ 2254 petition that the State suppressed investigation notes from Sheriff Daniel that would
have impeached the testimony of Joseph Richey and Paul Fobb. The district court did not
examine the claim “in any great detail,” but it held that the suppressed notes would have
allowed Woodfox to impeach or discredit Richey and Fobb by showing their initial statements
differed from their testimony. After carefully examining the trial transcript and the alleged
inconsistencies in the investigative notes, we conclude that Woodfox’s Brady claim is
unavailing because, despite facial inconsistencies with the testimony, the investigation notes
do not satisfy Brady’s materiality requirement. See Banks v. Thaler, 583 F.3d 295, 311 (5th
Cir. 2009) (suppressed evidence is “material” if “‘there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different’”)
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
        Richey testified on cross-examination that his statements to prison officials were
“exactly” as he testified about seeing Woodfox exit the Pine 1 dorm, but that fact was not
included in Daniel’s note from Richey’s initial statement on April 17, 1972. However, Richey
also specifically testified that he had given a “generic” answer when he was first questioned.
Counsel could have used Richey’s own direct testimony to impeach him on his cross-
examination that he had given exactly the same statement. Moreover, Richey’s testimony
alternately referred to statements given to Daniel, Warden Dees, and Captain Dixon on both
April 17 and May 16. It is not at all clear from the transcript that when Richey testified that
his statements to investigators had always been the same as his testimony, he meant that he
discussed Woodfox when he was first interviewed. Such a conclusion is actually contrary to
Richey’s testimony that he gave only a “generic” answer when first questioned.
        Fobb testified at trial that he saw Woodfox enter the Pine 1 dorm, but the investigation
notes show that he initially told investigators that he had remained in his dorm on the
morning of the killing and that the dorm man could confirm this. Fobb’s initial statement was
consistent with Sheriff Daniel’s testimony that many of the inmates claimed on April 17 that
they lacked any information about the murder. Indeed, it is hardly surprising that Fobb would
initially deny seeing anything that morning. Based on our review of the record, we are not
convinced that the investigation notes on Richey and Fobb “‘put the whole case in such a
different light as to undermine confidence in the verdict.”’ Strickler v. Greene, 527 U.S. 263,
290 (1999) (quoting Kyles, 514 U.S. at 435). Therefore, the state court’s denial of habeas relief

                                               62
                                    No. 08-30958

district court’s judgment and REMAND for resolution of the only remaining
issue relating to the selection of the grand jury foreperson.
      VACATED and REMANDED.




on the Brady claim was not unreasonable.

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                                  No. 08-30958

LESLIE H. SOUTHWICK, Circuit Judge, dissenting.
      The majority has given reasonable answers to the factual and legal
questions raised by this appeal. At several points, the questions are difficult
ones regarding the operation of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). See 28 U.S.C. § 2254(d). I answer a few of the questions
differently than my colleagues, leading me to the opposite overall result.
      The guard who was murdered in 1972 by someone at Angola State Prison
was Brent Miller, a young man who had only recently begun work there. The
viciousness of his murder cannot be overstated. My conclusion, though, is that
the appellee has properly presented a significant flaw in the trial at which he
was convicted. My dissent does not concern whether the appellee was guilty, but
only whether defects in his trial may now be addressed in this court.
      The State raised five issues on appeal. I have no disagreement with the
majority on most of them. I also agree with the majority that there is no
violation of the process due to Woodfox when he was retried decades after the
offense occurred. Instead, I discuss only these two issues:
      (1) Did the district court consider Woodfox’s claims de novo and without
any deference to the state court’s rulings on them.
      (2) Was there constitutionally ineffective counsel when there was no
objection to reading the testimony of Hezekiah Brown to the jury; he had
testified at the 1973 trial but died prior to the one in 1998.


      (1) Standard of Review Applied by the District Court.
      A federal court defers to the final decision on the merits of the state court
that ruled on an inmate’s habeas claims that are then brought in federal court.
See 28 U.S.C. § 2254(c). We do not function as a superior state court, reviewing
challenges to convictions as if we were part of the state appellate review system.
Instead, our role is limited though important. The majority and I recognize the

                                        64
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same standard under AEDPA, namely, that our review usually examines
whether the state 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,” or an “unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d). A prerequisite for that level of deference is that the claims must have
been “adjudicated on the merits” in the State court. Id. Even when the claims
were not adjudicated on the merits, we do not analyze them at all if they are
unexhausted. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (“exhaustion
requirement is satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court.”)
      According to the State, the district court looked at Woodfox’s ineffective
assistance of counsel claims without giving any deference to the state court. The
factual foundation for that argument is footnote 15 of the Magistrate Judge’s
report, the entire report then being adopted by the district court. That footnote
expressed the conclusion that the state habeas court had “completely failed to
address” Woodfox’s Due Process and Confrontation Clause arguments, and so
had not decided those issues “on the merits” within the meaning of AEDPA.
This is the Magistrate Judge’s footnote:
             While Woodfox asserted this claim (that his indictment should
      have been challenged on Due Process and Confrontation Clause
      grounds) in his application for post-conviction relief, he also
      asserted therein that his counsel should have challenged his
      indictment on speedy trial grounds. The state trial court, through
      its adoption of the State’s opposition to Woodfox’s post-conviction
      relief application as its reasons for denying that application, only
      addressed Woodfox’s speedy trial arguments and did not address his
      Due Process and Confrontation Clause contentions. Thus, although
      Woodfox “fairly presented” his Due Process and Confrontation
      Clause contentions for purposes of exhaustion under AEDPA, since
      the state court completely failed to address those arguments, this
      Court will review those contentions de novo, rather than under the


                                       65
                                   No. 08-30958

      deferential standard of review typically used where a state court has
      adjudicated a claim on its merits.
      For this reasoning, the Magistrate Judge cited Lambert v. Beard, 2007 WL
2173390 (E.D. Penn. 2007). In a parenthetical, the Magistrate Judge explained
Lambert as holding that “if petitioner ‘fairly presented’ a claim to the state court
(i.e., exhausted it), but the state court completely failed to address it, or refused
to consider it because of an inadequate procedural bar, the federal district court
reviews the claim de novo.” Id. at *8 (shown as quoted by Magistrate).
      The point is significant, because if the claims were properly presented but
then “not adjudicated on the merits in state court, the deferential AEDPA
standards of review do not apply,” and the claim is reviewed de novo. Henderson
v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003).
      We are to decide claim by claim the level of scrutiny to give to a state court
habeas ruling under Section 2254. That is because a federal habeas application
is not to be granted “with respect to any claim” that was resolved on the merits
in state court, when the “adjudication of the claim” meets the standards that are
set out in the statute. 28 U.S.C. § 2254(d).
      The district court considered de novo the admission of the Hezekiah Brown
transcript. It is not possible to determine whether that was error without first
examining how the state court considered that claim. I analyze that matter after
addressing some preliminary concerns.


      (2) Reading of the Transcript of Hezekiah Brown’s 1973 Testimony.
      The majority begins its analysis of the Confrontation Clause issue with a
discussion of whether the claim was exhausted in state court. I agree that
exhaustion must be considered, as there has been no explicit waiver of the point
by the State. I do not similarly begin with that issue, though, because my
discussion of exhaustion will occur during consideration of how the state courts


                                         66
                                   No. 08-30958

resolved the use of the transcript of former testimony. Though I place the
discussion somewhat later in my analysis than does the majority, simply because
I find it easier to explain at that point, I agree it is a threshold question.
      The State captions this Confrontation Clause issue with the assertion that
defense counsel was not ineffective “in failing to make a meritless objection to
Brown’s 1973 Transcript Testimony.” Hezekiah Brown died in 1996. At the
1998 trial, a state investigator sat in the witness chair, reading Brown’s
testimony from 1973 as a prosecutor asked the questions from the transcript.
Defense counsel did not object to the introduction of the testimony.
            (a) Brown’s Testimony: Basis of State Court Ruling
      A threshold question under AEDPA is whether relief was denied in state
court on the merits of the federal claim. If the state court denied relief on “a
state law ground that is independent of the federal question and adequate to
support the judgment,” we do not consider the federal questions. Lee v. Kemna,
534 U.S. 362, 375 (2002) (citation omitted). The state-law ground can be either
substantive or procedural law. Id. There is an exception to the bar when cause
for and prejudice from the default is shown, or when there has been a
fundamental miscarriage of justice. Lott v. Hargett, 80 F.3d 161, 164 (5th Cir.
1996). Woodfox has not argued these exceptions.
      Evaluating whether a substantive or procedural determination was made
by the state district court is conducted through this three-part test:
      (1) what the state courts have done in similar cases; (2) whether the
      history of the case suggests that the state court was aware of any
      ground for not adjudicating the case on the merits; and (3) whether
      the state courts’ opinions suggest reliance upon procedural grounds
      rather than a determination on the merits.
Mercadel, 179 F.3d at 274 (quoting Green v. Johnson, 116 F.3d 1115, 1121 (5th
Cir. 1997)). The state court that interests us most is the final one, because its
ruling is the effective one. As the majority has discussed, though, there is no


                                        67
                                     No. 08-30958

explanation in the two higher court rulings. So we must “‘look through’ to the
last clear state decision on the matter.” Jackson v. Johnson, 194 F.3d 641, 651
(5th Cir. 1999) (citation omitted). The only available evidence of the basis of the
Louisiana Supreme Court’s decision is the state district court’s reasoning.1
      I too quote the 21st District Court’s two relevant documents, as they are
the key to what follows. One was an undated “Written Reasons,” which was
followed by a Judgment dated October 25, 2004. The following is the entirety of
the first document except for the case caption and signature:
                              WRITTEN REASONS
            Initially, it should be noted that according to Louisiana Code
      of Criminal Procedure Article 930.2, Petitioner has had the burden
      of proving that the relief he seeks should be granted. He must prove
      that he is entitled to such relief. La. C.Cr.P. Art. 930.2, Official
      Revision Comment. Accordingly, he has the burden of proof
      regarding each of the claims upon which he bases his application for
      post-conviction relief.
            In light of such burden of proof, the Court has fully considered
      the application, the answer and all relevant documents and has
      determined that Petitioner has failed to carry his burden of proof.
      In determining that the Petitioner’s application should be denied,
      the Court, moreover, adopts the State’s Response to Application for
      Post-Conviction Relief [dated September 30, 2004] as the written
      reasons for the Court’s decision.

      The Judgment of October 25, 2004, has this relevant language:
                                  JUDGMENT
            The allegations presented by Petitioner have been fully
      addressed in the State’s Response to Application for Post-Conviction
      Relief filed herein by the Louisiana Attorney General’s Office. A
      review of the record of these proceedings, as well as the answer,
      indicates that there is no need to hold an evidentiary hearing in the
      proceedings. For written reasons this day adopted and assigned, the
      Court finds that the allegations are without merit and the



      1
          There is no suggestion Woodfox procedurally stumbled as he sought further review
of the state district court’s decision, thereby creating a new basis for denying relief.

                                           68
                                  No. 08-30958

      Application may be denied without the necessity of any further
      proceedings.
      It is true that the district court stated that Woodfox had “failed to carry
his burden” of proving his allegations. The majority concludes that this phrase
constitutes a ruling on the merits regarding every claim. I disagree that this is
a fair reading. Even though the district court did not detail its reasons, it gave
us their location by adopting the State Attorney General’s explanation.
      The majority finds support for its conclusion by giving a dictionary
definition of the word “moreover,” a word that appears in the “Written Reasons”
to preface why the court then refers to the State’s Response. I do not see
“moreover” as a signal that the State’s Response contains other reasons for the
ruling. Instead, the state district court explicitly said that the State’s Response
has the reasons for the ruling. In my dissecting of the state court’s language, I
conclude that the State’s Response contains the specific reasons for the court’s
ruling, issue by issue.     The “failed to carry his burden” language is a
generalization which is then given meaning by the State’s Response.
      As noted by the majority, the reference to Louisiana Code of Criminal
Procedure Article 930.2 also does not add much to either side of the scales of
whether the ruling was a procedural or a merits-based one.
      Of course, the majority and this dissent are both trying to discern meaning
from sentence structure and word usage in a document in which the writer may
not have been trying to give such refined guidance, but it is all we have.
      Consequently, I turn to the document that was adopted by the state trial
judge as the reasons for the decision. I will use the shorthand of the “State’s
Response” and the “Application for PCR” when referring to these important
documents.
      The claim is whether it was error at the 1998 trial to read to the jury the
transcript of Hezekiah Brown’s 1973 testimony. The State’s Response was quite


                                        69
                                   No. 08-30958

brief. “What is very interesting is that, although there is a discussion of the
testimony of Hezekiah Brown included in the Statement of Facts portion of the
[A]pplication [for PCR], there is no mention of it in the Claims for relief section.”
The State then explained how central Brown’s testimony was to the conviction.
Without it, the State claimed, “there would probably be no case.” Two more
paragraphs followed, detailing what Brown had said in 1973. The State neither
analyzed the Confrontation Clause nor made other legal arguments.
      I conclude that the State’s Response took the position that there were no
legal arguments as to Brown’s testimony to which a legal response needed to be
made. This is the argument that the state trial court will be deemed to have
embraced, namely, that the issue was not properly presented. It is the only
written reason the state court could have adopted. Though it is an independent
state ground, it also needs to be an adequate one.
             (b) Brown’s Testimony: Adequacy of Independent State Ground
      A state court’s declaring procedural default cannot automatically be
accepted as an adequate state ground. If the state’s procedural rule is not
“firmly established and regularly followed,” it will not be considered adequate.
Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Hughes v. Quarterman, 530 F.3d
336, 341 (5th Cir. 2008). A novel state procedural rule, inconsistently applied,
and about which a litigant might have no knowledge, cannot be used to block
review in federal court of the constitutional claim. Ford, 498 U.S. at 424-25.
      A foundation for understanding how the issue was presented is to know
the facts underlying it. Factual allegations about Brown appear in Woodfox’s
Application for PCR over a four-page section: Brown received favorable
treatment soon after he identified Woodfox, was moved to much more
comfortable housing, had the warden’s promise to seek a pardon, and otherwise
was given incentives that were not known to the defense at the time of Brown’s



                                         70
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1973 testimony. He was pardoned in 1986, the result of continuing efforts by the
former warden and other officials.
      Brown’s 1973 testimony denies being promised anything. This excerpt
starts with Brown’s questioning at the prison soon after the murder.
      Prosecutor: Did anybody promise you anything to make you tell the
      truth?
      Brown: Promise me anything?
      Prosecutor: Did they?
      Brown: No. They didn’t threaten me. I sat there a long time; I
      waited before I could say anything. Nobody promised me nothing.
Later, he was asked whether there were promises for his trial testimony:
      Prosecutor: Hezekiah, because of your trial testimony here today,
      did you – let me ask you this: You stated that no one from the State
      promised you anything for this testimony, is that correct?
      Brown: That’s right.
      Prosecutor: All right, but we did tell you that you would not be put
      back in the same place at –
      Brown: That’s right.
      Prosecutor: – The penitentiary?
      Brown: They told me that.
      Prosecutor: – With Albert Woodfox?
      Brown: That’s right.
      With Woodfox’s second trial near, a hearing on motions was held on July
31, 1998. An assistant attorney general stated that she had asked Murray
Henderson, the Angola warden from 1965 to 1975, if there were “any formal
deals with any of the witnesses,” and was told that the only promise had been
to provide security at the dog pen.
      At the December 1998 trial, though, Henderson testified that, prior to
providing his initial statement on the murder, Brown had already been moved
out of the main prison to the “dog pen,” a minimum security area reserved for

                                      71
                                 No. 08-30958

trustees who looked after the prison’s hunting dogs. Henderson testified in 1998
that he personally promised to seek a pardon for Brown, a pardon ultimately
granted. Brown was serving a life sentence for multiple aggravated rape
offenses and only recently had his death penalty vacated.
      The State characterizes Henderson’s testimony as describing a promise
that was made only after the trial. This is specifically what Henderson said:
      Defense: And did you -- did you have any -- did you make any
      statements to Hezekiah Brown with regard to what you would do?
      Henderson: I told him that we would protect him.
      Defense: Excuse me, let me -- let me ask my question[.] What you
      would do in exchange for statements about what happened and in
      exchange for testimony?
      Henderson: I told him that I would protect him.
      Defense: And you told him you would protect him, send him to the
      dog pen?
      Henderson: Do what?
      Defense: Send him to the dog pen?
      Henderson: Yeah. I don’t remember when I told him that, but I
      guess after he gave us the information.
      Defense: Didn’t you also tell him that if he gave you the information
      and proceeded to testify for the State, that you would also promise
      to support a pardon application for him?
      Henderson: Yeah, I told him that later, I’ve forgotten when. And
      shortly after that, or sometime after that, I was – I went to
      Tennessee as Commissioner of Corrections and I went up to the dog
      pen and told him that because I was leaving, didn’t mean that I
      wouldn’t continue to try to do something for him.
      In summary, Henderson testified that he promised to move Brown to a
safer area of the prison. Counsel asked whether he also promised to pursue a
pardon. Henderson answered that the promise about pardon help was made
“later,” meaning later than his first promise. Henderson did not testify that his



                                       72
                                  No. 08-30958

promise was after the trial. Henderson said he left for Tennessee “shortly” or
“sometime after” the promise was made. Henderson left Angola in 1975.
      The first letter from Henderson supporting Brown’s pardon was sent a
month after the 1974 trial of the last inmate indicted for Miller’s murder.
Henderson wrote more letters later.       A reasonable, even if not necessary,
inference is a promise to help secure a pardon would not have been held in
reserve, but would have been made to encourage Brown prior to his testimony.
Still, defense counsel did not in 1998 get a firm answer from the former warden
on when the promises were made. Henderson said he had forgotten.
      To be clear, this testimony was heard by the 1998 jury. The argument is
that the failure to cross-examine Brown on the promises in 1973 meant that the
transcript of Brown’s testimony should never have been introduced in 1998.
      In dealing with the effect of this testimony on the present Section 2254
claims, I first examine the issue of exhaustion. The State’s Response to the
Application for PCR in state court admitted the facts but said that Woodfox’s
attorneys never asked for relief based on this. It took fifty pages for Woodfox’s
Application for PCR to move beyond factual allegations to its claims for relief.
The factual recitation discusses Henderson’s testimony about Brown, saying that
a “vast amount of information of previously-suppressed impeachment evidence
has come to light.”
      The heading in the brief for the first claims is this:
      I & II. The Prosecution Presented False Evidence and Withheld
      from the Defense Evidence that was Favorable and Material to the
      Defense.
      Subheading A immediately follows, asserting that the State was “obligated
to provide all exculpatory evidence to the defense.” In that subsection, the
caselaw was discussed that supported the principles asserted in the heading and
subheading, without relating the arguments to the facts of his case. Most
relevant to Brown’s testimony, the section analyzed precedents that require the

                                        73
                                   No. 08-30958

prosecution to disclose any agreement it has entered regarding a witness’s
criminal exposure. Giglio v. United States, 405 U.S. 150 (1972); Napue v.
Illinois, 360 U.S. 264 (1959). The Application for PCR also discussed the
seminal case requiring the prosecution to turn over exculpatory information,
namely, Brady v. Maryland, 373 U.S. 83 (1963).
      In all that discussion, Hezekiah Brown was never mentioned, and neither
was anyone else. There was no effort to join the law to the facts of this case.
Brown was not the focus of any later section of the pleading.
      In summary, in the Application for PCR, Brown was clearly a principal
concern in its first fifty pages. Then, in the first section of the claims for relief,
legal principles relevant to the promises to Brown are analyzed. Subsection A
appears intended to discuss the alleged defects in Brown’s 1973 testimony and
its introduction in 1998. The caselaw, particularly Napue and Giglio, has little
relevance to anyone else. However, the State’s Response is correct that no relief
specifically identifying Brown was requested. I agree with the majority that
this Application for PCR presented no coherent argument on Confrontation.
      The state district court’s response to this filing met all three components
of the Mercadel test for whether a court ruled on a state procedural ground.
That ground was failure to argue the claim regarding Brown in the Application
for PCR. I realize that the majority has looked just as carefully at the same
materials and found this clearly to have been a merits-based ruling. The points
of departure for our rather disparate decision are what to make of the reference
in the “Written Reasons” to Woodfox’s not carrying his burden of proof, to the
incorporation of the State’s Response, and to the actual arguments made by the
State in that Response. I have set out my analysis of those already.
      Because Woodfox’s Application for PCR was “held” to have insufficiently
presented the claim regarding Brown, the adequacy of such a ruling needs to be
determined. I look for a state rule that describes an applicant’s obligations. I

                                         74
                                   No. 08-30958

find there must be a “statement of the grounds upon which relief is sought,
specifying with reasonable particularity the factual basis for such relief.” La.
Code Crim. Proc. Ann. art. 926 B(3). The final section of that article states this:
“Inexcusable failure of the petitioner to comply with the provisions of this Article
may be a basis for dismissal of his application.” Id. § 926 E.
      Woodfox’s lengthy Application for PCR was part petition and part brief.
The State’s Response was also in the form of a brief as well as an answer. There
is no argument that this was procedurally improper under Louisiana law.
      I find no presentation requirements set out in the Louisiana Code of
Criminal Procedure for post-conviction written legal arguments in district court.
Louisiana caselaw reveals that some flexibility is permitted, particularly when
the presentation is pro se (this one was not). For example, an inmate filed an
application that neither assigned nor briefed any errors; it was dismissed after
the district court granted an extension of time to correct. State v. Anderson, 561
So. 2d 1391, 1392 (La. App. 5 Cir. 1990). The Louisiana Supreme Court has held
that a district court should exercise discretion when deciding whether, in the
interests of justice, an applicant for post conviction relief should be allowed to
amend a timely filed but poorly drafted application. State ex rel. Glover v. State,
660 So. 2d 1189, 1197 n.8 (La. 1995), abrogated on other grounds, State ex rel.
Oliveri v. State, 779 So. 2d 735, 742 (La. 2001). Only “[i]nexcusable failure” to
comply with the provisions should cause dismissal. La. Code Crim. Proc. Ann.
art. 926 E.
      The particular defect argued by the State, valid as far as it went, would
have earned a bad grade in legal drafting but hardly prevented the substance of
the claim from being understood. I am uncertain whether the shortcomings in
the Application for PCR would even be considered a failure under article 926 to
state the “grounds.” If so, before the state district court dismissed for the failure
in Woodfox’s pleading to tie the facts regarding Brown to the law of Brady and

                                         75
                                       No. 08-30958

Giglio, some consideration was supposed to be given to whether, in the interests
of justice, allowing an amendment would be justified to remove ambiguity in the
legal presentation.2 Finally, nothing suggests that this sloppiness would be
thought “inexcusable failure” of compliance.
       In some state court precedents, there was evidence available of a state
court practice contrary to the one under review. For example, we rejected a
Texas procedural ruling that an objection was inadequate at trial to preserve an
issue. Rosales v. Dretke, 444 F.3d 703, 708 (5th Cir. 2006). We found that the
Texas Court of Criminal Appeals often showed more tolerance for the inartful
objections made at trials held before the relevant federal constitutional issues
under Batson had been identified. Id. (discussing Batson v. Kentucky, 476 U.S.
79 (1986)). A more recent decision found that a state procedural rule barring a
claim was “strictly or regularly applied evenhandedly” to most claims. Turner
v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007).
       Woodfox has the burden to show that the procedural rule is not “regularly
applied, . . . or that the rule was exorbitantly applied under the circumstances
of the case.” Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006) (internal
quotations and citations omitted). There was no discovered practice of zero-
tolerance for post-conviction application inadequacy. Ford, 498 U.S. at 425. To
the contrary, caselaw and the Louisiana Code of Criminal Procedure are fairly
forgiving. The burden was carried to show that the state courts did not apply a
firmly established, regularly applied rule.
       Though the state ground was inadequate, the issue still had to be
exhausted in state court. Mercadel, 179 F.3d at 275. In Mercadel, we concluded
that the inmate’s improper filing in the state Supreme Court as opposed to a


       2
          Of course, I have only imputed this reasoning to each state court. There is some
artificiality to this process for understanding the state court’s application of its procedural
rules. Still, we are required to proceed this way.

                                              76
                                  No. 08-30958

state district court was the procedural reason for the dismissal; it was also the
reason the claims were unexhausted. Id.
      I do not find that same difficulty here. There must be a fair presentation
of the claim, including presenting it in a “procedurally correct manner.” Deters
v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). Thwarting the state procedures by
not adequately presenting an issue so that the state courts will consider it
constitutes a failure to exhaust. Mercadel, 179 F.3d at 275.
      Among the minimum requirements of a fair presentation is that the
inmate be clear that he is making a claim under the federal constitution and not
solely under state law. Duncan v. Henry, 513 U.S. 364, 365 (1995) (inmate
argued in state court that an erroneous evidentiary ruling was a “miscarriage
of justice”; not until federal court did he make a claim of a Due Process
violation). We have used “substantial equivalent” as the degree of similarity
needed between the state and federal claims. Whitehead v. Johnson, 157 F.3d
384, 387 (5th Cir. 1998). The purpose being served is that a state court must be
given the “opportunity to pass upon and correct” the alleged errors in the
conviction. Duncan, 513 U.S. at 365 (quoting Picard v. Connor, 404 U.S. 270,
275 (1971)).
      It is not necessary to cite “book and verse on the federal constitution,” but
the substance must be presented. Picard, 404 U.S. at 278 (quotation omitted).
We have referred to a need to present the “same facts and legal theory” before
we will find an issue exhausted in state court. Ruiz v. Quarterman, 460 F.3d
638, 643 (5th Cir. 2006). The legal theory presented in state court must not be
“distinct” from the one presented in federal court. Id.
      Applying those principles, I conclude that Woodfox clearly was making a
federal constitutional claim. An application in state court for post-conviction
relief, perfect upon its filing in its research, reasoning, and presentation, is not
necessary. When the application is dismissed prematurely on inadequate state

                                        77
                                  No. 08-30958

grounds, the processes of the adversary system that can lead to amendments of
pleadings and arguments are short-circuited. It would only be speculation as to
what would have happened in state court, including how the presentation of the
legal arguments might have developed.         Speculation serves no analytical
purpose. Because Woodfox’s case should have been allowed to proceed further,
I would not now fault him for what he had not yet argued before the dismissal.
The only basis before us for the dismissal was the one adopted by the district
court, then approved by the reviewing courts. That basis was inadequate.
      Because the state courts did not reach the merits, because they relied on
an inadequate state ground, and because the issues were fairly presented, I turn
to the merits. Powell v. Quarterman, 536 F.3d 325, 343 (5th Cir. 2008).
            (c) Analysis of Legal Issues Regarding Brown’s Testimony
      The majority analyzes the merits through AEDPA deference. However,
for AEDPA’s standards to apply to our merits analysis, the claims must have
been adjudicated on the merits. 28 U.S.C. § 2254(d)(1); Henderson, 333 F.3d at
598. Of course, the majority says they were. Because I have concluded that the
merits were never reached and an inadequate procedural ground was the basis
for denial of relief, I examine the claim under pre-AEDPA standards.
Henderson, 333 F.3d at 598. “The pre-AEDPA standards do not require a federal
court to defer to the state court’s legal conclusions.” Kunkle v. Dretke, 352 F.3d
980, 985 (5th Cir. 2003). On collateral review, we apply the law at the time the
conviction became final, with certain narrow exceptions. Teague v. Lane, 489
U.S. 288, 310 (1989).    For purposes of retroactivity analysis, this date is
November 13, 2001, when the Supreme Court denied certiorari to review
Woodfox’s direct appeal. See Beard v. Banks, 542 U.S. 406, 411 (2004).
      The first claim raised by Woodfox in his amended Section 2254 application
was a Confrontation Clause and Due Process violation resulting from the use of
Brown’s testimony in the 1998 trial. Both the federal and the state rules of

                                       78
                                  No. 08-30958

evidence regarding the use of prior sworn testimony were cited. The violation
was said to arise from the absence of an adequate opportunity to cross-examine
Brown on the key items of impeachment. Woodfox cited Confrontation Clause
jurisprudence that developed after his conviction became final. See Crawford v.
Washington, 541 U.S. 36 (2004). Also woven into the argument was the issue of
the State’s failing to disclose the exculpatory and impeachment material. See
Brady, 373 U.S. 83. The claim is properly seen as a hybrid of failure to disclose
and, on that basis, an inadequate opportunity to cross-examine.
      Woodfox’s argument is built on the foundation that his multiple 1998 trial
counsel were ineffective in failing to make the proper objections to reading
Brown’s 1973 testimony into the record. A claim seeking relief for ineffective
assistance of counsel requires showing both that counsel performed deficiently,
and that the deficiencies were prejudicial to the defense.          Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Prejudice means “that there is at least
‘a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Neal v. Puckett, 286 F.3d 230, 241
(5th Cir. 2002) (en banc) (quoting Strickland, 466 U.S. at 694).
      Crawford v. Washington, cited by Woodfox, was decided after Woodfox’s
conviction became final and is not to be applied retroactively. Whorton v.
Bockting, 549 U.S. 406, 421 (2007). Instead, the relevant Supreme Court
precedent is Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, an out-of-court
declarant’s testimony was admissible provided it either fell under a “firmly
rooted hearsay exception” or bore other “adequate indicia of reliability.” Id. at
66; United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004). The parties do
not dispute that a firmly rooted hearsay exception existed for sworn testimony
given at an earlier proceeding. The following is the language from the state
evidentiary rule describing the former testimony whose admission was firmly
rooted:

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       Testimony given as a witness at another hearing of the same or a
       different proceeding, if the party against whom the testimony is now
       offered, or, in a civil action or proceeding, a party with a similar
       interest, had an opportunity and similar motive to develop the
       testimony by direct, cross, or redirect examination.
La. Code Evid. Ann. art. 804(B)(1); Avants, 367 F.3d at 445 (holding that the
Fed. R. Evid. 804(b)(1) exception, equivalent to La. Code Evid. Ann. art.
804(B)(1), was a firmly rooted hearsay exception).
       The district court found that Woodfox’s first trial counsel lacked the
“opportunity” to make a sufficient cross-examination “regarding the prospect of
a pardon and incentives” for his cooperation. This was because the state had
“suppressed” information regarding those issues at the time of the first trial.
While no court has ever found a Brady violation with respect to the incentives
offered Brown and others, a commissioner reviewing a state habeas claim in
2006 found such a violation and recommended vacating the conviction of another
inmate convicted for the murder. By a supplement to the record, the State filed
the order of the 19th Louisiana District Court that rejected the recommendation
and denied relief in 2007.3
       The Roberts test is disjunctive; a search for particularized “indicia of
reliability” is only required when a statement does not fall under a firmly rooted
hearsay exception. Fratta v. Quarterman, 536 F.3d 485, 499-500 (5th Cir. 2008).
This controversy concerns the firmly rooted exception for prior testimony, and
it is that principle I explore.
       This court once “declined to decide whether ineffective or minimal
examination of the witness” was sufficient to bar admission of a record of the
prior testimony. Magouirk v. Warden, Winn Corr. Ctr., 237 F.3d 549, 554 (5th
Cir. 2001).     We held that if trial court interference prevented any cross-


       3
         Wallace v. State, No. 10-73-6820 (19th Jud. Dist., Oct. 9, 2007); writ den’d, 2007 KW
2525 (La. App. 1st Cir. 2008) (one judge dissenting on Brady issue).

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examination, testimony from a prior court proceeding was inadmissible due to
the absence of an opportunity for questioning the witness. Id.
      Among the authorities on which we relied was one in which at a
preliminary hearing, some cross-examination of the later unavailable witness
had occurred. Mechler v. Procunier, 754 F.2d 1294, 1297-98 (5th Cir. 1985).
Even though defense counsel in the earlier proceeding had not yet seen the
ballistics and autopsy reports, we held that the cross-examination “was neither
de minimis nor ineffective.” Id. at 1298. The unavailable witness, Frances Wise,
was the only eyewitness to the murder. She notified authorities that she was
leaving the state, and her testimony was preserved at a hearing in which cross-
examination by defense counsel occurred. That testimony was then introduced
at the trial over a defense objection. The autopsy and ballistics report had not
yet been provided to counsel at the time of the hearing.
      Chief Judge Clark, writing for the court, identified the following
components of meaningful cross-examination:
            Wise’s testimony, like that at question in Roberts, was tested
      “with the equivalent of significant cross-examination.” 448 U.S. at
      70, 100 S.Ct. at 2541. As in Roberts, the questioning of Wise clearly
      partook of cross-examination as a matter of form, replete with
      leading questions, “the principal tool and hallmark of cross-
      examination.” Id. at 70-71, 100 S.Ct. at 2541. In addition,
      Mechler's counsel’s questioning comported with the principal
      purpose of cross-examination: “to challenge whether the declarant
      was sincerely telling what [s]he believed to be the truth, whether
      the declarant accurately perceived and remembered the matter [s]he
      related, and whether the declarant’s intended meaning is
      adequately conveyed by the language [s]he employed.” Id. at 71,
      100 S.Ct. at 2541.
Id.
      Questioning an eyewitness about ballistics results and an autopsy is a test
of the plausibility of the story. The witness might become less certain as a
result, but it is the kind of doubt that jurors themselves can grasp with some

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equivalence. If the witness has no known bias, her sincerity is not the question.
On the other hand, questioning a man who was serving a life sentence about
what specific promises might have been offered him for a pardon is a direct
challenge to his honesty, something only the witness can answer.                         How
believably he answers can be critical. The Mechler reasoning is valid and
supportive of Woodfox’s claim because of this distinction.
       The opportunity to cross-examine must be a meaningful one. “In some
cases, however, because of particular circumstances, the opportunity to cross-
examine at the earlier proceeding may not have resulted in a test of the
reliability of the statement.” 5 JACK B. WEINSTEIN & MARGARET A. BERGER,
WEINSTEIN’S FEDERAL EVIDENCE § 804.04[3][b] (Joseph M. McLaughlin ed., 2d
ed. 2009). Among the citations for that statement was a decision in which the
earlier cross-examination was of a witness whose violation of the sequestration
rule was not known until after his testimony. United States v. Monaco, 702 F.2d
860, 866 (11th Cir. 1983).4 The court found no evidence that the witness’s
improper conversations with two other witnesses led to a tailoring of his
testimony to match theirs. Id. at 868. The court concluded that because the
violation did not relate to the substance of his testimony, it did not affect the
admissibility of the prior testimony. Id.
       These prior decisions properly isolate the narrow concern relevant in the
present case. Each of those decisions stopped short of opining on a situation in
which the unknown impeachment evidence that could not be used in the earlier
cross-examination would affect the core of that prior testimony. That could be,
as here, because of powerful incentives at work on the witness, or for other
reasons. It is necessary to go a step further than any of these precedents.



       4
        Though the decision does not become precedential for this reason, I note that all three
judges deciding Monaco were on this court prior to the 1981 split of the Fifth Circuit.

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      As mentioned, the claim has been presented as a hybrid of Brady and
Giglio principles. I find no evidence that the prosecution in 1973 or even in mid-
1998 knew what the warden said he promised. Even so, the intent of the State
to withhold evidence is not key. In Giglio, the Supreme Court acknowledged the
uncertainties about whether the Government had been aware of the promises
made to a key witness against Giglio. The Court found the doubts to be
irrelevant due to the importance of the witness.
             Here the Government’s case depended almost entirely on
      Taliento’s testimony; without it there could have been no indictment
      and no evidence to carry the case to the jury. Taliento’s credibility
      as a witness was therefore an important issue in the case, and
      evidence of any understanding or agreement as to a future
      prosecution would be relevant to his credibility and the jury was
      entitled to know of it.
Giglio, 405 U.S. at 154-55.
      It seems to me that these are the key facts. (1) At least as early as the
State’s Response to the Application for PCR, the State had acknowledged that
Brown was the indispensable witness to its case. (2) Yet unknown at the time,
this inmate serving a life sentence, who only recently had been freed from a
death sentence, was allegedly promised the best efforts of the warden to get him
pardoned.
      The imprecision in how the former warden in 1998 expressed the date of
the promise has already been noted. I have already discussed that this issue
properly received de novo review in the District Court, including as to the facts.
We are to examine the District Court’s finding on this factual issue for clear
error. Lefevre v. Cain, 586 F.3d 349, 352-53 (5th Cir. 2009). It was a reasonable
finding by the District Court that such a promise would have been offered as a
pre-trial carrot and not as post-trial lagniappe – a word appropriately
originating in Louisiana to describe a gratuity. 8 OXFORD ENGLISH DICTIONARY



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590 (2d ed. 1989). I therefore find we should sustain the finding that at the time
Brown testified, he did so with a promise of the warden’s help to get a pardon.
       Of course, the 1998 jury knew about the promise from the warden. That
is not enough. Cross-examination is not replicated when the witness never has
to respond to the impeaching evidence. See United States v. Garcia, 530 F.3d
348, 353 (5th Cir. 2008) (“Only through live cross-examination can the
fact-finder observe the demeanor of a witness, and assess his credibility.”)
(quoting Int’l Shortstop Inc. v. Rally’s Inc., 939 F.2d 1257, 1265-66 (5th Cir.
1991)). There would be no need to determine whether prior cross-examination
was “meaningful” if it were always sufficient that the unknown subjects for
questioning at the first trial were explained at the second.5
       I have not discussed any precedent directly on point, as I have found none.
The search for precedents far from its jurisdiction can deflect a court from
making a careful analysis of a somewhat novel issue. Nonetheless, I find an
opinion reviewing a quite similar set of facts from the Supreme Court of
Pennsylvania. Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992). Melvin
Hauser was the state’s only witness at a preliminary hearing. It became known
later that Hauser had made a prior inconsistent statement to police, had a
criminal record, and that the prosecutor was contemplating charges against him
concerning the same attempted burglary for which Bazemore was being
prosecuted. None of these facts were known to defense counsel when cross-
examining Hauser at the preliminary hearing.




       5
         The Supreme Court emphasized that the Confrontation Clause is founded on the need
for the accused to be able to face the accuser when the accusations are being made to a jury.
The Court gave a “notorious” example of why that is crucial by describing the 1603 trial of Sir
Walter Raleigh for treason. Crawford v. Washington, 541 U.S. 36, 44 (2004). Introduced into
evidence was a letter and prior testimony of one of his alleged accomplices. Raleigh thought
the witness would recant if called to face him, but the judges refused. Id.

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      At trial, Hauser invoked his Fifth Amendment rights. The Pennsylvania
Supreme Court reasoned that Bazemore had not been given a “fair opportunity”
to cross-examine the witness earlier.
      The real basis for the admission of testimony given by a witness at
      a former trial is to prevent the miscarriage of justice where the
      circumstances of the case have made it unreasonable and unfair to
      exclude the testimony. It naturally follows that testimony from the
      former trial should not be admitted if to do so would result in a
      miscarriage of justice.
Id. at 686 (quoting 29 AM. JUR. 2D EVIDENCE § 738).
      The Pennsylvania court also said that even though cross-examination had
occurred, the fact that counsel had not known of the significant impeachment
evidence kept the witness’s recollections from being “fully tested” by the defense.
Id. at 687. The court did not find the harm removed by allowing other witnesses
at trial to testify about the inconsistent statement and other evidence. Their
testimony would not be a complete picture of the responses the witness might
otherwise have made when faced directly with impeachment evidence.
      The mere opportunity to impeach an unavailable witness indirectly
      is obviously not the same thing as the opportunity to cross-examine
      (and impeach) the witness directly. Had the defense in this case
      had the opportunity to confront Hauser directly and to cross-
      examine him directly with the benefit of the vital withheld
      information, Hauser may have recanted his prior testimony or he
      may have made other responsive statements or reactions which
      would have strengthened appellant’s defense by casting doubt upon
      Hauser’s credibility or his prior inconsistent account of the
      circumstances in question. The introduction of such impeaching
      information indirectly is clearly an inadequate substitute for a full
      and fair opportunity to examine the witness himself or herself.
Id. at 688 n.4. See also, 4 HANDBOOK OF FEDERAL EVIDENCE 804:1; 2 WHARTON'S
CRIMINAL EVIDENCE 6:10.40 (15th ed.) (citing Bazemore for these points).
      The extra step for Woodfox’s argument is that defense counsel did not
object in 1998. Ineffective assistance of counsel analysis thus applies. Because


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the indispensable Hezekiah Brown’s testimony from the 1973 trial could not be
admitted in 1998, it was ineffective assistance of counsel for Woodfox’s attorneys
not to have objected based on Ohio v. Roberts. The precise error was not settled
law, but counsel’s failure to make a strenuous effort to raise these principles and
seek exclusion fell below minimum competence. Prejudice from that failure is
clear, as excluding the testimony would have likely ended the case.
      This determination requires that the writ of habeas corpus be granted,
vacating the state court judgment of conviction. The district court was correct
when it did exactly that.
      I would affirm the grant of relief.




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