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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-41230                      United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                       December 13, 2018
LUTHER EUGENE CALDWELL,
                                                                          Lyle W. Cayce
              Petitioner - Appellant                                           Clerk


v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:13-CV-93


Before SMITH, BARKSDALE, and HO, Circuit Judges.
PER CURIAM:*
       We granted Luther Caldwell a certificate of appealability on his claim
that the state trial court denied him the full opportunity to raise an
alternative-perpetrator defense. Because Caldwell has failed to show that the
state court’s decision was “contrary to” or an “unreasonable application of”




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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federal law, his claim falls under 28 U.S.C. § 2254(d)’s relitigation bar. We
affirm.
                                          I.
      The State of Texas tried Caldwell for the murder of Greg Thomas. After
the first jury could not reach a verdict, the second jury found Caldwell guilty
of murder and sentenced him to life in prison. Prosecutors primarily relied on
Donna Taylor’s testimony. She testified that she was walking with Thomas
when she witnessed Caldwell drive by and shoot Thomas out of the car window.
Taylor alerted the police and identified Caldwell in a photo lineup.
      On direct appeal, Caldwell contended that the trial court denied him the
opportunity to present specific evidence of an alternative perpetrator. The
court of appeals affirmed. See generally Caldwell v. State, 356 S.W.3d 42 (Tex.
App.—Texarkana 2011, no pet.). Caldwell failed to file a timely petition for
review in the Texas Court of Criminal Appeals (“CCA”).
      On state collateral review, Caldwell raised the same argument, which
the CCA denied on the recommendation of the district court. The district court
did not consider the merits of the alternative-perpetrator defense because the
court of appeals already considered it on direct review. See, e.g., Ex parte
Acosta, 672 S.W.2d 470, 472 (Tex. Crim. App. 1984) (“We need not address
applicant’s second contention inasmuch as the same issue was raised and
addressed by [a court of appeals] on applicant’s direct appeal.”).
      Caldwell then filed a petition for habeas corpus in federal court raising
eight points of error. The district court denied Caldwell’s petition, and we
granted a certificate of appealability.
      Proceeding pro se, Caldwell contends that the state trial court denied
him the opportunity to present a full defense that Johnny Ward committed the
crime. The court did not exclude all evidence of an alternative perpetrator—
in fact, it allowed Caldwell’s counsel to cross-examine the State’s witnesses and
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establish that police investigated Ward for the murder. But the court excluded
two pieces of evidence that Caldwell considers critical.        First, the court
excluded evidence that Thomas identified Ward to investigators as the shooter
in a separate incident a few days before Thomas’s murder. Caldwell intended
to introduce this evidence to show that Ward had motive to kill Thomas.
Second, the court excluded a computer entry about the same separate incident.
The entry said that the State would not prosecute Ward because,
“DEFENDANT CHARGED W/ MURDER OF THE ONLY WITNESS IN THIS
CASE.” Caldwell, 356 S.W.3d at 46. He intended to introduce this evidence to
show that the State considered Ward a suspect in Thomas’s murder and may
have planned to prosecute him. Without this evidence, Caldwell argues he was
not able to present his full defense that Ward killed Thomas.
                                      II.
      Reviewing a denial of habeas relief, “we examine factual findings for
clear error and issues of law de novo.” Barrientes v. Johnson, 221 F.3d 741,
750 (5th Cir. 2000) (citing Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir.
1999)). Because the state considered the merits of Caldwell’s claim, he must
show that 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.” 28 U.S.C. § 2254(d)(1). And even if
we conclude there was constitutional error, we may not afford relief unless “the
error ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’”   Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We conclude that the




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state court’s decision was neither contrary to nor an unreasonable application
of federal law. 1
                                             A.
       We begin with a discussion of what is “clearly established federal law.”
To be “clearly established” for habeas relief, the Supreme Court must squarely
address and decide the issue. See Thomas v. Vannoy, 898 F.3d 561, 566 (5th
Cir. 2018) (quoting Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per curiam);
Williams v. Taylor, 529 U.S. 362, 412 (2000) (“Terry Williams”)). We may not
“‘fram[e] [Supreme Court] precedents at . . . a high level of generality’ and
declare a principle to be clearly established when the Court has yet to squarely
consider it.” Id. (alterations in original) (quoting Nevada v. Jackson, 569 U.S.
505, 512 (2013) (per curiam)).
       Caldwell contends that the state court’s decision violates the Supreme
Court’s precedents guaranteeing “‘a meaningful opportunity to present a
complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (collecting
authorities) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
Specifically, he argues that the court’s exclusion of particular evidence about a
purported alternative perpetrator runs afoul of cases like Crane and Holmes v.
South Carolina, 547 U.S. 319, 324–29 (2006). The general proposition in those
cases is that “rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote” may violate a
defendant’s right to present his defense. Holmes, 547 U.S. at 326.




       1 Caldwell frames the issue as an “unreasonable determination of the facts” under 28
U.S.C. § 2254(d)(2) in his Issue Presented, but relies on legal arguments that better reflect
§ 2254(d)(1)’s focus on legal error. “We review questions of law and mixed questions of law
and fact under the ‘contrary to’ and ‘unreasonable application’ prong of 28 U.S.C. § 2254(d).”
Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001) (citing Clark v. Johnson, 202 F.3d 760,
764 (5th Cir. 2000); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997)).
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      But the Court employs that general rule to address situations unlike the
one here.   The Court’s cases typically focus on categorical prohibitions of
certain evidence and not discretionary decisions to exclude evidence under
general and otherwise uncontroversial rules.              See id. at 324–29; Clark v.
Arizona, 548 U.S. 735, 756–57, 765 (2006) (declining to consider a rule limiting
expert psychiatric testimony to insanity defenses and excluding its application
to mens rea defenses); United States v. Scheffer, 523 U.S. 303, 306–09 (1998)
(upholding a military rule of evidence prohibiting polygraph examination
results); Rock v. Arkansas, 483 U.S. 44, 56, 62 (1987) (holding unconstitutional
a rule prohibiting “hypnotically refreshed testimony”); Chambers v.
Mississippi, 410 U.S. 284, 294, 298 (1973) (holding unconstitutional, as-
applied, a rule prohibiting parties from impeaching their own non-adverse
witnesses); Washington v. Texas, 388 U.S. 14, 22–23 (1967) (holding
unconstitutional a rule prohibiting unacquitted participants in a crime from
testifying to defend other participants).
      The cases Caldwell points to are similarly unavailing. For example, in
Crane the Court held that a rule preventing a defendant from providing
evidence    about    the   circumstances       of   his   voluntary   confession   was
unconstitutional.    476 U.S. at 691.          And in Holmes, the Court declared
unconstitutional a prohibition on defendants’ offering evidence of third-party
guilt when the prosecution’s evidence is strong enough. 547 U.S. at 329–31.
      The Supreme Court has consistently held that defendants have a right
to offer evidence of an alternative perpetrator. Id. at 327. But this right exists
alongside a similarly longstanding principle that trial courts may exclude
evidence if its “probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury.” Id.
at 326 (collecting rules of evidence). See also Jackson, 569 U.S. at 511 (“No
decision of [the Supreme] Court clearly establishes that the exclusion of
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[evidence that may confuse the jury, embarrass the victim, surprise the
prosecution, or unduly prolong the trial] violates the Constitution.”); Scheffer,
523 U.S. at 308 (collecting cases).          Therefore, because evidence of an
alternative perpetrator is often “remote and lack[s a] connection with the
crime,” it “may be excluded where it does not sufficiently connect the other
person to the crime, as, for example, where the evidence is speculative or
remote, or does not tend to prove or disprove a material fact in issue at the
defendant’s trial.” Holmes, 547 U.S. at 327 (internal quotation marks omitted)
(quoting 41 C.J.S., Homicide § 216, 56–58 (1991); 40A Am. Jur. 2d, Homicide
§ 286, 136–38 (1999)).
                                        B.
      The state court’s decision was not “contrary to” clearly established
federal law because it neither (1) reached a contrary conclusion of law nor (2)
“confront[ed] facts that are materially indistinguishable from a relevant
Supreme Court precedent” and reached the opposite result. Terry Williams,
529 U.S. at 405. Here, because the order on collateral review did not consider
the merits of Caldwell’s claims, we “look through” to the last state court
decision to do so: the state intermediate appellate court’s decision on direct
review. See Ylst v. Nunnemaker, 501 U.S. 797, 804–06 (1991).
      First, the state court of appeals did not reach a contrary conclusion of
law. A state court does not need to expressly identify the federal standard. See
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (“Avoiding [§ 2254(d)(1)’s]
pitfalls . . . does not even require awareness of our cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.”).
      Indeed, the state court of appeals relied on a state standard that accords
with the federal standard.       Compare Holmes, 547 U.S. at 326 (“[W]ell-
established rules of evidence permit trial judges to exclude evidence if [the
evidence’s] probative value is outweighed by certain other factors such as
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unfair prejudice, confusion of the issues, or potential to mislead the jury.”) and
id. at 327 (quoting 41 C.J.S., Homicide § 216, 56–58 (1991); 40A Am. Jur. 2d,
Homicide § 286, 136–38 (1999)), with Wiley v. State, 74 S.W.3d 399, 406 (Tex.
Crim. App. 2002) (“In weighing probative value against [prejudicial]
counterfactors, courts must be sensitive to the special problems presented by
‘alternative perpetrator’ evidence. Although a defendant obviously has a right
to attempt to establish his innocence by showing that someone else committed
the crime, he still must show that his proffered evidence regarding the alleged
alternative perpetrator is sufficient, on its own or in combination with other
evidence in the record, to show a nexus between the crime charged and the
alleged ‘alternative perpetrator.’”).
      Second, this case does not present “facts that are materially
indistinguishable from a relevant Supreme Court precedent.” Terry Williams,
529 U.S. at 405. The cases that Caldwell points to—and the rest of the Court’s
precedents—do not involve a situation like this. See Section II.A.
                                        C.
      Because Caldwell cannot prevail on his claim that the state court’s
decision was “contrary to” federal law, he must show that it was an
“unreasonable application” of federal law.           To be an “unreasonable
application,” there must be “no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [the Supreme Court’s] precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011) (emphasis added). We limit
ourselves to the record before the state court, and we defer to the state court’s
factual findings unless overcome by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).        Evidentiary
questions are necessarily mixed questions of law and fact and “[t]he
presumption of correctness . . . applies to those unarticulated findings which
are necessary to the state court’s conclusions of mixed law and fact.” Valdez v.
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Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (internal citations omitted)
(collecting cases). The combined effect of these rules sets an intentionally high
bar that Caldwell does not meet.
      The state court of appeals correctly concluded that “the trial court’s
ruling was in the zone of reasonable disagreement.” Caldwell, 356 S.W.3d at
48. The trial court did not exclude all evidence of an alternative perpetrator;
instead it allowed Caldwell to develop his theory through cross-examination.
The trial court only excluded some evidence, and it did so after hearing most
of the testimony in the case—including Taylor’s crucial eyewitness testimony.
Before the judge, Caldwell emphasized that (1) Ward had allegedly shot at
Thomas a few days before the murder with a similar weapon, (2) Thomas
identified Ward as the shooter to investigators, and (3) the computer entry
indicated that someone investigating the shooting believed that Ward
murdered Thomas. The State responded that, among other facts, Taylor’s
testimony—in which she was specifically asked whether Ward committed the
crime and whether she could have confused Caldwell for Ward—precluded any
nexus between Ward’s alleged shooting and Thomas’s murder. Taylor was
familiar with Ward and his car because she previously lived in Ward’s
residence, bought drugs from Ward, and had driven his car.
      The state court tailored its evidentiary exclusion to (1) evidence of
another crime that (2) lacked a sufficient connection to Thomas’s murder and
(3) would confuse the jury.      Id. (quoting trial transcript).   Based on its
consideration of the evidence offered to that point, the state court reasonably
concluded that the prejudicial effect of the evidence outweighed its probative
value. This is precisely the inquiry that cases like Holmes would have trial
courts make. See 547 U.S. at 326–27. Caldwell has not presented “clear and
convincing evidence” that the state court’s appraisal of the prejudicial effect of


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the testimony was incorrect. 28 U.S.C. § 2254(e)(1). Any purported error here
falls well within the range of reasonable disagreement.
                                        D.
      In the alternative, Caldwell requests an evidentiary hearing on his claim
under 28 U.S.C. § 2254(e)(2). But because Caldwell was able to develop his
claim in state court, we deny this request. See id. (permitting an evidentiary
hearing only “[i]f the applicant has failed to develop the factual basis of a claim
in State court proceedings”).
                                       III.
      Caldwell has failed to carry his burden and we AFFIRM the judgment of
the district court.




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