                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2825

E LLIOT D. R AY,
                                          Petitioner-Appellant,
                               v.

A NA B OATWRIGHT,
                                          Respondent-Appellee.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
       No. 1:07-cv-00190-WCG—William C. Griesbach, Judge.



   A RGUED N OVEMBER 5, 2009—D ECIDED JANUARY 21, 2010




  Before B AUER, M ANION and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. Elliot Ray appeals from the
district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Because it was plain error
for the state court to admit the co-actors’ statements
through the police detective’s testimony at trial,
violating Ray’s right of confrontation, we reverse and
remand.
2                                               No. 08-2825

                   I. BACKGROUND
  Ray was one of several gunmen charged in
Wisconsin state court for a retaliatory shooting in which
Rita Martinez, an eleven-year-old girl, was killed, and
two people were injured on 29th Street in Milwaukee,
Wisconsin. Ray claims that on the night of the shooting,
he changed his mind about accompanying his friends to
29th Street, told his friends that he was not going with
them, and returned to his friend’s house on 33rd Street.
Ray maintains that he learned that Martinez had been
shot near 29th Street from a television news report.
  At trial, the State called Detective Daniel Phillips to
testify about the homicide investigation and his
interview with Ray at the police station. The detective
testified about Ray’s signed statement that was written
toward the end of Ray’s interview, where Ray talked
about the night of shootings at issue, as well as the
events that transpired the night before the shootings.
Ray’s App. at 642. In testifying, the detective primarily
read from Ray’s statement, including the portion where
he told Ray that two of his co-actors’ had made state-
ments to implicate Ray in the shootings. We note that the
detective testifying to the statements made by others
(other than the defendant) is inadmissible hearsay. The
detective testified as follows:
    Ray states that he too then began walking from 33rd
    Street to 29th Street to go shoot along with the rest of
    them, but Ray states when he got to North Avenue
    he thought “fuck it” and turned around and went
    back to [his friend’s] house.
No. 08-2825                                                  3

    Ray was then confronted with numerous statements
    made by co-actors that they were present shooting on
    29th Street and so was Ray.
    Ray then stated “those stupid niggers shouldn’t be
    talking and they can’t talk for me.”
    When confronted with statements by [Miriam Myles] that
    Ray was shooting a nine-millimeter on 29th Street [and] in
    a statement by Sylvester Townsend . . . that Ray had a .45-
    caliber pistol[,] Ray then said “tell me which gun killed
    the girl and I’ll tell you everything.”
Ray’s App. at 653. (Emphasis added.)
  Ray’s attorney did not object to the detective’s testimony
regarding the above-referenced statements. Neither
Miriam Myles nor Sylvester Townsend testified at trial.
  A jury returned guilty verdicts for one count of first-
degree reckless homicide, party to a crime, and two
counts of first-degree recklessly endangering safety.
Ray’s App. at 38. He was also convicted of being a felon
in possession of a firearm. Id.
  On direct appeal, Ray raised five issues, including a
claim that his confrontation clause rights were violated
when the detective was allowed to testify regarding
statements made by Ray’s co-actors, when those co-
actors were not witnesses at trial. The state appellate
court ignored this issue and solely focused on whether
there was a hearsay violation, despite the detective
using the phrase, “Ray was then confronted” in his testi-
mony. The state appellate court concluded that the detec-
tive’s references to the co-actors’s statements were not
4                                                No. 08-2825

hearsay because they were not offered to prove “the
truth of the matter” contained in the statements but
rather “to show Ray’s reaction to his co-actors’ statements
placing him at the scene, shooting a gun—a reaction
implicating him in the revenge-seeking conspiracy.” Ray’s
App. at 40-42. The state supreme court denied Ray’s
petition for review.
 Ray then sought post-conviction relief in state court
under Wis. Stat. § 974.06. He was denied relief. Ray’s
App. at 95.
  Ray filed two separate pro se petitions for writ of habeas
corpus in the federal district court. The district court
denied both of Ray’s petitions pursuant to Rule 4 of the
Rules Governing Section 2254 Cases, finding that he
set forth no cognizable constitutional or federal law
claims. Ray’s App. at 51-58, 94-100. Thereafter, the district
court granted Ray’s request for a certificate of appealability
to address whether the trial court’s admission of the
statements by non-testifying co-actors through the testi-
mony of the detective ran afoul of the confrontation clause.


                     II. DISCUSSION
  Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), an application for a writ of
habeas corpus may not be granted unless adjudication of
the claim in state court “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C.
No. 08-2825                                                 5

§ 2254(d)(1). “[S]tate-court judgments must be upheld
unless, after the closest examination of the state-court
judgment, a federal court is firmly convinced that a
federal constitutional right has been violated.” Williams
v. Taylor, 529 U.S. 362, 388 (2000).
  The Government seeks to frame the issue in this case
as one involving the hearsay rule; it is not. While there is
a hearsay violation as noted above, the issue involves
the violation of the Sixth Amendment of the Constitu-
tion which says that: “The accused shall enjoy the right . . .
to be confronted with the witnesses against him . . . .”
The Supreme Court has held that the guarantee, which
is extended against the states by the Fourteenth Amend-
ment, includes the right to cross-examine witnesses. See
Pointer v. Texas, 380 U.S. 400, 404 (1965). And this funda-
mental constitutional right is quite properly an almost
total ban on the introduction of accusations against the
accused by persons not present for cross-examination.


  A. Whether There Was A Confrontation Clause Issue
  The first issue we must address is whether the
detective’s testimony concerning the statements made
by the co-actors violated Ray’s right of confrontation. The
government contends that the co-actors’ statements
were used “not as substantive evidence of Ray’s guilt,
but instead to ‘give the context of’ Ray’s reaction to
those statements.” Appellee’s Brief at 22. Because the
statements were not hearsay, the government maintains
that they do not run afoul of the confrontation clause. Id.
at 23. The government likens this case to both Tennessee
6                                                 No. 08-2825

v. Street, 471 U.S. 409, 417 (1985) and Lee v. McCaughtry,
892 F.3d 1318, 1325 (7th Cir. 1990). In Street, the
Supreme Court held that there was no confrontation
clause violation when the State introduced the co-actor’s
confession, because it was introduced for the non-hearsay
purpose of rebutting the defendant’s testimony that his
own confession was a coerced “copy” of the co-actor’s
statement. 471 U.S. at 417. In Lee, we held that there was
no confrontation clause violation in admitting into evi-
dence a tape recording that included the state’s
attorney’s narration of the accomplice’s accusation in
the recorded interview with the defendant, because it
was used to place into context for the jury the metamor-
phosis of the defendant’s accounts of events, i.e., that
the defendant changed his story after hearing the accom-
plice’s accusation. 892 F.3d at 1325.
  The government maintains that the state court’s con-
clusion that the co-actors’ statements were introduced to
give context to Ray’s reaction to them (i.e., a guilty reac-
tion), not to show their underlying truth, is a reasonable
conclusion and a reasonable application of federal law.
Id. at 24.
  We disagree. The confrontation clause has been invoked
to prevent, even in a joint trial, the admission of a con-
fession by a co-defendant that implicates the other
accused, even if the trial judge provides a limiting instruc-
tion. See Bruton v. United States, 391 U.S. 123, 127-28 (1968).
While the method of presentation of the accusations in
this case shows lively imagination on the part of the
prosecution, it nevertheless runs afoul of the United
No. 08-2825                                               7

States Constitution. Here, the evidence presented by the
prosecution delivered to the jury statements by named co-
actors, not available for cross-examination, accusing Ray
of the very crimes with which he stood charged.
However cleverly presented, the evidence was a clear
violation of Ray’s constitutional right of confrontation.
While the government asserts that “a number of witnesses
placed Ray among the group of people involved in the
shooting” (Appellee’s Brief at 5-6), none of these witnesses
could place Ray at the scene of the shootings, with a
weapon in his hand. To accept the government’s position
that the statements were offered only to create the
setting for Ray’s response, and therefore admissible,
would set the stage to eliminate, in most cases, the con-
frontation right “enjoyed by the accused.”
  Street is factually distinguishable because there, the co-
actors’ confession was introduced in rebuttal to refute the
defendant’s claim of coercion, where here, the detective
testified to the co-actors’ statements during the State’s
case-in-chief. The court in Street also instructed the jury
that the co-actor’s statement was to “be considered by you
for rebutable [sic] purposes only, and you are not to
consider the truthfulness of the statement in any way
whatsoever.” Id. at 512. The court in this case issued no
limiting instruction.
  Lee is also distinguishable because we do not find that
Ray changed his version of events after hearing the accusa-
tions of the co-actors. Further, the trial court in Lee also
provided a limiting instruction whereas none was pro-
vided here.
8                                               No. 08-2825

  We find that the detective testifying to the co-actors’
statements proved far more than any reaction that Ray had
during his interview. Ray did not have the opportunity
to cross-examine these co-actors at trial. Accordingly,
these statements violated Ray’s right of confrontation.


    B. Whether These Statements Were Admissible
       Under Roberts And Lilly
  Because Ray’s conviction was finalized before Crawford
v. Washington, 541 U.S. 36 (2004), was decided, Ray’s
confrontation clause claim should be analyzed “according
to Roberts and Lilly, the clearly established Supreme
Court precedent at the time of the state court decisions.”
Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005). Under
these cases, the veracity of statements from non-testifying
witnesses is sufficiently dependable to allow the untested
admission of such statements against an accused at trial
when (1) “the evidence falls within a firmly rooted
hearsay exception” or (2) it contains “particularized
guarantees of trustworthiness” such that adversarial
testing would be expected to add little, if anything, to the
statements’ reliability. Ohio v. Roberts, 448 U.S. 56, 65-66
(1980); Lilly v. Virginia, 527 U.S. 116, 124-25 (1999).
  The government does not argue, nor do we find, that
these statements fall within a hearsay exception.
  Additionally, the government does not argue that these
statements contain particularized guarantees of trustwor-
thiness. As this Court interprets the reasoning of the
plurality in Lilly, these guarantees of trustworthiness
No. 08-2825                                                    9

“must be inherent in the circumstances of the testimony
itself; the fact that other evidence corroborates the testi-
mony in question does not suffice.” United States v.
Castelan, 219 F.3d 690, 695 (7th Cir. 2000). There is a
presumption of unreliability that attaches to a co-defen-
dant’s confession, see Lee v. Illinois, 476 U.S. 530, 543 (1986),
“[i]t is highly unlikely that the presumptive unreliability
that attaches to accomplices’ confessions that shift or
spread blame can be effectively rebutted when . . . the
government is involved in the statements’ production,
and when the statements describe past events and
have not been subjected to adversarial testing.” Lilly, 527
U.S. at 137.
   Here, the co-actor’s statements neither fall “within a
firmly rooted hearsay exception”, nor do they contain
“particularized guarantees of trustworthiness.” Therefore,
these statements were inadmissible. See Ohio v. Roberts,
448 U.S. at 65-66; Lilly, 527 U.S. at 124-25.


  C. Whether It Was Plain Error To Admit These State-
     ments
  Ray concedes that no objection was made when the
detective testified to the co-actors’ statements and that,
as a consequence, our review is limited to plain error. See
Fed. R. Crim. P. 52(b); United States v. Hodges, 315 F.3d
794, 800 (7th Cir. 2003). Under the plain error standard,
“we must decide (1) whether there was an error at all,
(2) whether it was plain, (3) whether it affected the defen-
dant’s substantial rights, and (4) whether (if the first
10                                              No. 08-2825

three factors are present) it seriously affected the
fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Hawk, 434 F.3d 959, 962
(7th Cir. 2006). The focus of the prejudice inquiry in
determining whether the confrontation right has been
violated must be on the particular witness, not on the
outcome of the entire trial. Delaware v. Van Arsdall, 475
U.S. 673, 680 (1986). A new trial is warranted if the error
had a substantial and injurious effect or influence on
determining the jury verdict. Bintz, 403 F.3d at 869.
  Here, the error in admitting statements by non-
testifying co-actors was plain. Ray’s substantial rights
were affected because he was not able to cross-examine
the only witnesses who directly implicated him to being
at the scene of the shooting with a weapon in his hand,
and who directly refuted Ray’s claim that he had with-
drawn from the conspiracy at issue. We find this confronta-
tion clause violation seriously affected the fairness of the
judicial proceedings and reverse the district court’s
opinion.


  D. Whether Ray’s Petition Was Timely
  The government alternatively argues that Ray’s habeas
petition should be barred because it was untimely. Under
the rules governing AEDPA, a petitioner has one year
in which to file a petition for writ of habeas corpus, to
begin running “on the date of which the judgment
became final by the conclusion of direct review or expira-
tion of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). The one-year period is tolled
No. 08-2825                                              11

during a properly filed post-conviction petition in
state court. See 28 U.S.C. § 2244(d)(2). Accordingly, Ray
had until September 9, 2004 in which to file his petition.
The government maintains that Ray failed to provide
documentation that he had originally filed his state post-
conviction motion in a timely manner, and discredits
Ray’s assertion that the Oklahoma prison in which he
was housed misplaced the timely-filed motion.
   There is no evidence in the record to support the gov-
ernment’s assertions. However, this is largely due to
the fact that the district court dismissed Ray’s petition on
the merits before giving the government an opportunity
to answer the petition and develop the record. The
record currently reflects that Ray served a copy of his pro
se post-conviction petition to prison officials on April 27,
2004. Ray’s App. at 32, 36. Correspondence between
Ray and prison officials alternatively indicate that Ray
filed his motion on April 29, 2004. Ray’s App. at 32, 34-35,
37. Despite the disparity in the date, these documents
provide support for Ray’s assertion that he filed his post-
conviction petition in a timely manner. However, the
government has not yet had a chance to challenge
whether the documents Ray placed into the record are
authentic; whether the state court petition was ever
received by prison officials; whether the papers Ray
filed were sufficient under state law to petition for post-
conviction relief; or whether the individual to whom
Ray allegedly gave his petition was a proper prison
authority. Accordingly, we remand this case to the
district court so that the government may have an op-
portunity to develop the record on this issue. If, after
12                                           No. 08-2825

the record is fully developed, Ray’s petition is deter-
mined to be timely, this Court directs the district court
to grant the petition for writ of habeas corpus unless
the State chooses to retry Ray within 120 days.


                  III. CONCLUSION
  For the reasons stated above, we R EVERSE the district
court and R EMAND the case for further proceedings
not inconsistent with this opinion.




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