                           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
                 A MENDED A PRIL 1, 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 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 Marti-
nez, 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 main-
tains 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 state-
ment, including the portion where he told Ray that two
of his co-actors’ had made statements to implicate Ray
in the shootings. We note that the detective testifying to
the statements made by others 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 testimony. The
state appellate court concluded that the detective’s refer-
ences to the co-actors’ statements were not hearsay
4                                               No. 08-2825

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 con-
trary 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. As noted above,
the hearsay violation is beyond dispute. The issue, then,
involves the violation of the Sixth Amendment of
the Constitution 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 Amendment, includes the right to cross-
examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404
(1965). And this fundamental 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.
6                                               No. 08-2825

at 23. The government likens this case to both Tennessee
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 attor-
ney’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 metamorphosis
of the defendant’s accounts of events, i.e., that the defen-
dant changed his story after hearing the accomplice’s
accusation. 892 F.3d at 1325.
  The government maintains that the state court’s conclu-
sion 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 confes-
sion by a co-defendant that implicates the other accused,
even if the trial judge provides a limiting instruction.
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
No. 08-2825                                               7

prosecution, it nevertheless runs afoul of the United
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 con-
frontation. 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 there-
fore admissible, would set the stage to eliminate, in most
cases, the confrontation right “enjoyed by the accused.”
  Street is factually distinguishable because there, the co-
actor’s 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 412. 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. Ac-
cordingly, these statements violated Ray’s right of con-
frontation.


    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 “partic-
ularized guarantees of trustworthiness” such that ad-
versarial testing would be expected to add little, if any-
thing, 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 trust-
No. 08-2825                                                9

worthiness. As this Court interprets the reasoning of the
plurality in Lilly, these guarantees of trustworthiness
“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 unreli-
ability 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 Roberts, 448 U.S.
at 65-66; Lilly, 527 U.S. at 124-25.


  C. Whether It Was Harmless Error To Admit These
     Statements
  We have concluded that the hearsay statements were
inadmissible. The state does not contend that Ray failed
to exhaust his state remedies or procedurally defaulted
his constitutional arguments. Accordingly, these argu-
ments are waived. Lilly v. Gilmore, 988 F.2d 783, 784-85
(7th Cir. 1993). We must now determine whether the
10                                             No. 08-2825

error in admitting these statements was harmless or
whether it had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993).
  In this case, the error in admitting these statements
was not harmless. Ray 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 con-
frontation clause violation seriously affected the fairness
of the judicial proceedings, resulted in a decision that
was contrary to clearly established federal law, 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 ex-
piration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). The one-year period is tolled 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 gov-
ernment maintains that Ray failed to provide documenta-
tion that he had originally filed his state post-conviction
No. 08-2825                                               11

motion in a timely manner, and discredits Ray’s assertion
that the Oklahoma prison in which he was housed mis-
placed 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 the
record is fully developed, Ray’s petition is determined
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.
12                                          No. 08-2825

                  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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