     Case: 19-30018    Document: 00515519133     Page: 1   Date Filed: 08/07/2020




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


                                  No. 19-30018
                                                                      FILED
                                                                 August 7, 2020
                                                                 Lyle W. Cayce
JUSTIN TERRELL ATKINS,                                                Clerk

             Petitioner - Appellant

v.

TIMOTHY HOOPER, Warden, Elayn Hunt Correctional Center,

             Respondent - Appellee



                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 3:17-CV-1544


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      A Louisiana inmate appeals the district court’s denial of habeas relief
based on a Confrontation Clause violation. We REVERSE and REMAND so
the district court can grant the relief requested.
      Justin Terrell Atkins was convicted by a jury of armed robbery and
aggravated battery. The conviction was affirmed on direct appeal, and the
Louisiana Supreme Court denied review. State v. Atkins, 46,613 (La. App. 2
Cir. 9/21/11); 74 So. 3d 238, writ denied, 2011-2287 (La. 2/17/12); 82 So. 3d 284.
      Our factual and procedural summaries are taken from the Louisiana
Court of Appeal decision. Atkins, 74 So. 3d at 239. Robert Jones, Howard
Bishop, and Tom Harris were drinking alcohol together at Jones’s house.
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Atkins knew that Bishop and Jones had just returned to Jones’s house after
Jones had cashed a check. After kicking in the door to the house, Atkins
demanded money, but Jones refused. Atkins began beating Jones with the
butt of a firearm.   When Harris intervened, Atkins hit him too.         Bishop
witnessed the incident and saw Atkins take money from Jones’s pocket.
      During the robbery, Lawrence Horton was at the door to Jones’s house.
Horton had followed Jones and Bishop and observed Jones cash his check at a
store. Eight days after the robbery, Horton approached law enforcement and,
upon questioning by Detective Jeffrey Dowdy, Horton admitted he had a role
in the robbery, but he said Atkins was primarily responsible for the crime.
Detective Dowdy then obtained an arrest warrant for Atkins. Separately,
Harris gave a photo of Atkins to law enforcement and said it was of the person
who hit him and who robbed and beat Jones.
      Atkins filed for state post-conviction relief in which he contended that he
was denied his right to confront and cross-examine Horton when alleged
hearsay evidence was presented at trial. The claim focuses on the State’s
opening statement before the jury, the testimony of Detective Dowdy, and the
State’s closing statement.
      In the State’s opening statement, the prosecutor stated:
      Finally, I believe the State will have the testimony of Lawrence
      Horton. Lawrence Horton is a co-defendant in this case. That he
      was arrested for this offense as well as the defendant in this case.
      I believe that he will tell you that he and the defendant met on the
      morning of January 2nd, 2009. That they went ultimately to 1710
      Jackson Street wherein the defendant, Mr. Atkins over here,
      busted the door in at 1710 and robbed and beat the victims while
      he himself, Mr. Horton, served as a lookout. And I believe that will
      – you will anticipate that testimony as well.
      During the trial, the following exchange occurred between the prosecutor
and Detective Dowdy:
      Q. Okay. And did you in fact speak with Lawrence Horton?
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      A. Yes, sir, I did.
      Q. All right. Was he advised of his rights?
      A. Yes, sir, he was.
      Q. And did he provide a statement to you?
      A. Yes, sir, he did.
      Q. Was the statement inculpatory? Did he –
      A. Yes, sir, it was.
      Q. Okay. Did he implicate anybody else?
      A. Yes, sir, he did.
      Q. Okay. As a result of this – well, all right, he implicated someone
         else. What did you do next with regard to your investigation?
      A. Based on the – the information that he provided he was arrested
         and again, based on the information that he provided I was able
         to obtain a warrant.
      Q. For whom?
      A. Justin Atkins.
The State rested without calling Horton to testify. Finally, the prosecutor
stated in closing argument: Detective Dowdy “interviews Lawrence Horton,
who is known as O and then obtains an arrest warrant for Justin Atkins, the
defendant.” This testimony and closing argument are the facts underlying the
claim before us.
      The state trial court denied Atkins’ application for post-conviction relief.
The court of appeal and the Louisiana Supreme Court denied Atkins’ writ
applications. Atkins filed a federal habeas application under 28 U.S.C. § 2254
claiming that he was denied his Sixth Amendment right to confrontation. The
magistrate judge issued a report and recommended that Atkins’ application be
denied. The district court adopted the report, dismissed Atkins’ Section 2254
application, and denied Atkins a Certificate of Appealability (“COA”). Atkins


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timely appealed. This court granted Atkins’ application for a COA on August
9, 2019.


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


I.    Whether the State waived a defense of procedural default
      Atkins contends the State waived a defense of procedural default
because the State failed to raise the defense in the district court. In the State’s
response brief, the State does not attempt to raise procedural default as a
defense and the State does not respond to Atkins’ waiver argument. Thus, to
bar habeas relief based on procedural default, we would have to raise and apply
the defense sua sponte.
      When considering whether we should identify and apply a procedural
default in habeas review, we consider (1) whether the applicant has had a
reasonable opportunity to argue against the application of the bar, and
(2) whether the government intentionally waived the procedural defense.
Smith v. Johnson, 216 F.3d 521, 523–24 (5th Cir. 2000); see United States v.
Willis, 273 F.3d 592, 596 (5th Cir. 2001) (extending this reasoning to
Section 2255 review).     We begin and end this analysis with the second
consideration.
      Here, the district court explicitly identified a possible defense of
procedural default and instructed the State to raise the defense if the State
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believed any of Atkins’ habeas claims were procedurally defaulted. The State
thereafter answered Atkins’ habeas application and explicitly abandoned the
defense, stating that “it appears [Atkins] has exhausted his state court
remedies.” This chronology confirms that the State intentionally waived the
defense. We will not inject the issue into this appeal of whether Atkins’ habeas
application is procedurally defaulted.


II.    Whether Atkins is entitled to habeas relief
       We review a “district court’s findings of fact for clear error and its
conclusions of law de novo.” Dorsey v. Stephens, 720 F.3d 309, 314 (5th Cir.
2013).   Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal courts may not grant habeas relief on a claim that the state
courts have adjudicated on the merits unless that adjudication resulted in a
decision that was either (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States” or (2) “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
       The first standard, that the decision be “contrary to . . . clearly
established Federal law,” is met when “the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law or if the
state court decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). The second standard that would justify relief, which is that the state
court made an “unreasonable application of clearly established federal law,” is
satisfied when that court “identifies the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Id. These alternatives require more than a federal
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court’s conclusion that the state court erred. The federal court must also
conclude the state court’s decision was “unreasonable.” Id. at 411.
      A.    The last reasoned decision
      The first task for us in reviewing a claim governed by the AEDPA is to
identify the relevant state-court decision. § 2254(d). To that end, the Supreme
Court says that we must examine closely the “last related state-court decision”
that provides a “relevant rationale” for a particular claim. Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018). If the last related state-court decision does not
provide a relevant rationale for the relevant claim, we must “look through” that
decision and find one that does. Id. Only then can we consider whether the
highest state court to decide the claim resolved it in a manner contrary to or
with an unreasonable application of clearly established Supreme Court
precedent. Id.
      Before identifying the appropriate state-court decision, we review
Atkins’ application for state post-conviction relief. Atkins’ state application
included the same Confrontation Clause claim he brought in his federal
application under Section 2254, but Atkins’ state application also included
claims of ineffective assistance of trial counsel. The allegations included claims
about deficient pretrial preparation and about later failures in cross-
examining witnesses, objecting to jury instructions, and failing to move for
mistrial based on a Confrontation Clause violation. None of those allegations
were raised in Atkins’ federal application. The highest state-court decision for
us to identify is the one resolving the Confrontation Clause claim.
      The Louisiana Supreme Court denied relief to Atkins for two reasons.
First, the court concluded that Atkins’ claims were procedurally defaulted
because he “failed to raise his claims in the proceedings leading to the
conviction,” relying on Louisiana Code of Criminal Procedure article 930.4(B).
That is the procedural default that we have already explained we will not inject
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into this appeal. Second, the court held that Atkins failed to “satisfy his post-
conviction burden of proof” under Louisiana Code of Criminal Procedure article
930.2. Because the Louisiana Supreme Court could have been applying article
930.2 to the ineffective assistance claims alone, we cannot evaluate whether
the court’s decision was contrary to or an unreasonable application of clearly
established United States Supreme Court precedent. § 2254(d). We therefore
look through the Louisiana Supreme Court’s decision. 1
       The next decision is that of the Louisiana Second Circuit Court of Appeal.
The court of appeal provided only a string-cite of authority, without
explanation.     First, the court cited Louisiana Code of Criminal Procedure
article 930.2, which provides that an applicant for post-conviction relief bears
the burden of proof. Second, the court cited Louisiana Code of Evidence article
801(c), which defines hearsay. Third, the court cited State v. Lewis, 47,853 (La.
App. 2 Cir. 2/27/13), 110 So. 3d 644, 653, writ denied, 2013-0672 (La. 10/25/13),
124 So. 3d 1092. In Lewis, a criminal defendant raised five issues on direct
appeal. 110 So. 3d at 649–55. In resolving Atkins’ appeal, the court of appeal
cited the page of Lewis discussing the right to confrontation, the only issue that
was relevant to Atkins’ state application. Id. at 653. On that issue, the Lewis
Court held that certain testimony connecting the defendant to the crime was
inadmissible hearsay, but the error was harmless because of substantial
evidence of guilt before the jury. Id.
       Finally, the court of appeal cited Woods v. Etherton, 136 S. Ct. 1149, 1151
(2016). Woods dealt only with a claim of ineffective assistance of appellate
counsel for failing to raise a Confrontation Clause argument on appeal. Id. at
1151–53.     The Atkins court of appeal decision cited the portion of Woods



       1Atkins argues we should “look through” the state high court’s decision and review
the court of appeal decision. The State does not take a position on which decision to review.
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discussing the procedural history of the case and setting forth the “doubly
deferential” standard for claims of ineffective counsel in habeas review. Id. at
1151. Atkins argues that the state court of appeal denied his Confrontation
Clause claim by incorrectly applying this double deference. We cannot reliably
interpret the reference to Woods. The state court of appeal might have been
applying double deference to the Confrontation Clause claim, which would
have been error, but it also might have been using double deference merely to
reject the claims for ineffective counsel. As to Lewis, the state court of appeal
could have determined there was no Confrontation Clause violation; or
alternatively that there was a Confrontation Clause violation, but the error
was harmless.
      The state court of appeal’s reasoning falls short of what is needed to
consider whether that court’s decision was contrary to or an unreasonable
application of clearly established United States Supreme Court precedent.
§ 2254(d).
      Thus, we look through a second opinion. In doing so, we now see the
state district court’s decision. That court denied Atkins’ application for post-
conviction relief with far more explanation than the state appellate court or
state supreme court used. The state district court held that Atkins’ right to
confrontation was not violated, reasoning that because Detective Dowdy’s
testimony did not reference the actual statements made by Horton during
Detective Dowdy’s investigation, no hearsay was admitted. The court also
found that Detective Dowdy’s testimony was “used to explain the sequence of
events leading to the arrest of [Atkins] from the viewpoint of the arresting
officers,” which is permissible under state law.
      This decision is the needed state-court ruling that provides a relevant
rationale for Atkins’ Confrontation Clause claim. Applying our deferential
review, we consider whether it suffices under Section 2254(d).
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      B.    Unreasonable application of Supreme Court precedent
      We are not aware of a Supreme Court opinion with nearly identical facts
to those here, so we consider whether “the state court misapplied the relevant
legal principles to the facts.” Taylor v. Cain, 545 F.3d 327, 334 (5th Cir. 2008).
      The Confrontation Clause provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. CONST. amend. VI. That provision bars the admission of
“testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004). We know
that “testimony” is the “solemn declaration or affirmation made for the purpose
of establishing or proving some fact.” Id. at 51 (citation omitted). Testimonial
statements can be used without constitutional barrier “for purposes other than
establishing the truth of the matter asserted.” Id. at 59 n.9.
      We consider the state district court’s initial reason that Atkins’ right to
confrontation was not violated: there was no hearsay admitted because
Detective Dowdy did not recite the actual statements made by Horton during
Detective Dowdy’s investigation. We compare that reasoning to the Supreme
Court’s holding in Gray v. Maryland, 523 U.S. 185 (1998). In Gray, the Court
held that a defendant’s Confrontation Clause rights were violated by the
admission of a codefendant’s confession; the confession was redacted by
replacing the defendant’s name with blank spaces and, when the blanks were
read into evidence by a police detective at trial, the word “deleted” or “deletion”
was used instead. Id. at 188. Although the police detective did not repeat the
mention of the defendant’s name, the Court reasoned that such redacted
statements “obviously refer directly to someone, often obviously the defendant,
and which involve inferences that a jury could ordinarily make immediately,
even were the confession the very first item introduced at trial.” Id. at 196. So
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too here. Detective Dowdy may not have used Atkins’ name, but surely there
was no doubt in jurors’ minds that Horton had implicated Atkins. This was
clear because Dowdy testified that based on what Horton said, Dowdy obtained
an arrest warrant for Atkins. The state district court’s first reason to deny
Atkins’ Confrontation Clause claim was an unreasonable application of Gray.
      The state district court decision we are reviewing also concluded that
Detective Dowdy’s testimony was introduced for a purpose other than
establishing the truth of the matter asserted. Instead, this testimony was
introduced only to explain the course of Detective Dowdy’s investigation
leading to Atkins’ arrest. The state district court based that conclusion on
State v. Calloway, 324 So. 2d 801, 809 (La. 1975), in which the state supreme
court held that statements made “to explain the sequence of events leading to
the arrest of the defendants from the viewpoint of the arresting officers” are
not hearsay. Thus, according to the state district court, Detective Dowdy’s
testimony was not hearsay under state law, and therefore there was no
violation of Atkins’ confrontation rights.
      This court’s caselaw is clear that explain-the-investigation exceptions to
hearsay cannot not displace the Confrontation Clause. For example, “police
testimony about the content of statements given to them by witnesses are
testimonial,” and “officers cannot refer to the substance of statements made by
a nontestifying witness when they inculpate the defendant.” United States v.
Kizzee, 877 F.3d 650, 657 (5th Cir. 2017) (collecting decisions). 2
      We return to Taylor v. Cain, as the questioned testimony there is quite
similar to what occurred here. There, the detective stated that he “had a
conversation with [the witness] and during this conversation, learned some


      2   Although the AEDPA requires us to look at clearly established law from the
Supreme Court, our decisions discussed here that interpret Supreme Court precedent are
binding in this circuit on what that Court has clearly established.
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information,” and from that information the detective testified he “was able to
develop a suspect.” Taylor, 545 F.3d at 331. The prosecutor immediately
asked, “per this end of your investigation, what was the name of your suspect?”
Id. The detective gave the defendant’s name. Id. We held that the detective’s
testimony that a nontestifying witness implicated the defendant’s guilt and the
prosecution’s references to that testimony in closing argument were hearsay.
Id. at 336.      Introducing that hearsay testimony violated the defendant’s
confrontation rights under Ohio v. Roberts, 448 U.S. 56, 65 (1980), and the
state court’s contrary decision constituted an unreasonable application of
Supreme Court precedent. Id. Under Supreme Court Confrontation Clause
jurisprudence, law enforcement “officers cannot, through their trial testimony,
refer to the substance of statements given to them by nontestifying witnesses
in the course of their investigation, when those statements inculpate the
defendant.” Id. at 335.
       Like Taylor, Detective Dowdy testified that Horton, a nontestifying
witness, implicated Atkins and the prosecution likewise referenced that
testimony in its closing argument. Such testimony violates the Confrontation
Clause. If a state court decides otherwise, the decision is an unreasonable
application of Supreme Court precedent. 3 Accordingly, unless the state court’s
error was harmless, relief is warranted.




       3  In Taylor, we relied on the Supreme Court’s Ohio v. Roberts opinion. Some of the
analysis of that opinion was overruled before Atkins’ trial by Crawford v. Washington, 541
U.S. 36, 53–54 (2004). Crawford’s rejection of some parts of Ohio v. Roberts, though, does not
affect the issue before us. Crawford expanded the Sixth Amendment’s Confrontation Clause
right by rejecting the “reliability” justification set forth in Ohio v. Roberts that saved some
out-of-court statements from Sixth Amendment scrutiny. Id. at 67–68. Crawford did nothing
to undermine the longstanding recognition that the type of statement here — the inculpatory
out-of-court statement of an eyewitness — implicates the Confrontation Clause. Taylor still
controls.
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III.     Whether the state district court’s error was harmless
         Confrontation Clause violations are subject to harmless error analysis.
Horn v. Quarterman, 508 F.3d 306, 322 n.24 (5th Cir. 2007).              The State
concedes that it did not raise harmlessness in this case but urges us to consider
the possibility sua sponte. We have the discretion to do so. Jones v. Cain, 600
F.3d 527, 541 (5th Cir. 2010). We see no reason for exercising it here.
                                        ***
         The state district court’s decision that no Confrontation Clause violation
occurred through the handling of Detective Dowdy’s testimony constitutes an
unreasonable application of Supreme Court precedent, and the State waived
harmlessness. We REVERSE the district court’s judgment denying Atkins
habeas relief and the case is REMANDED for the district court to grant relief
consistent with this opinion.




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