                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                                                  In the                              December 5, 2006
                       United States Court of Appeals                              Charles R. Fulbruge III
                                      for the Fifth Circuit                                Clerk
                                            _______________

                                              m 04-51233
                                            _______________




                                  CONNIE CORNELIUS ROBINSON,

                                                              Petitioner-Appellant,

                                                 VERSUS

                                     NATHANIEL QUARTERMAN,
 DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                              Respondent-Appellee.



                                     _________________________

                             Appeal from the United States District Court
                                  for the Western District of Texas
                                        m SA-03-CA-897-NN
                               ______________________________



Before SMITH, BENAVIDES, and PRADO,                       Connie Robinson appeals the denial of his
  Circuit Judges.                                      petition for writ of habeas corpus. Finding
                                                       only harmless error, we affirm.
JERRY E. SMITH, Circuit Judge:*
                                                                            I.
                                                          San Antonio police Daniel Vega and Ron
                                                       Heinrich responded to a 911 call made from
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    the home of Myrtle Edwards. There the offic-
termined that this opinion should not be published     ers found Edwards, Robinson, and Nisha
and is not precedent except under the limited cir-     Spikes, who appeared frightened and was icing
cumstances set forth in 5TH CIR. R. 47.5.4.
a large bump on her forehead. Heinrich ques-               After Vega had finished questioning Spikes
tioned Robinson outside the house, while Vega           and the officers were preparing to leave,
remained inside and questioned Spikes. Rob-             Spikes told Edwards that Robinson had hidden
inson, a convicted felon, was arrested for out-         the gun. Edwards asked Spikes why she had
standing traffic tickets but ultimately was             not told the police about the gun, and in re-
charged with unlawful possession of a firearm           sponse Spikes called the police back and in-
by a felon.                                             formed them that Robinson had concealed his
                                                        gun in the kitchen. Edwards witnessed Vega’s
   At trial Vega testified that upon arriving at        retrieval of the gun from the pizza box after
the house he questioned Spikes, who reported            Spikes had related its location.
that Robinson was driving Spikes and Edwards
home from a nightclub when the car hit a                    On cross-examination, Robinson impeached
guardrail and was damaged.1 After they ar-              Edwards by eliciting testimony that she had
rived at Edwards’s house and Edwards went               served jail time for a theft conviction. She had
to bed, Robinson accused Spikes of causing              also written romantic letters to Robinson while
the accident and began to hit her, causing the          he was in jail, which demonstrated Edwards’s
swollen area on her head. The noise from the            attraction to him and her jealousy of Spikes.
scuffle woke Edwards, who called 911.                   Edwards thus, according to Robinson, was
                                                        motivated to provide false testimony, because
   Before police arrived, Robinson removed a            if Robinson went to prison it would separate
gun from his waistband and concealed it in a            him from Spikes. Robinson was not permitted
pizza box. After Spikes reported the gun’s lo-          to cross-examine Edwards about her deferred
cation, Vega entered the kitchen and found a            adjudication status and residence at the Bexar
gun in a pizza box. Robinson denied that the            County jail at the time of her testimony.
gun was his, and no fingerprints were recov-
ered from the weapon.                                       A jury convicted Robinson of unlawful pos-
                                                        session of a firearm by a felon, and he was sen-
   Edwards testified that she and Spikes had            tenced to a ninety-nine-year prison term. He
gone to the nightclub together, where they met          unsuccessfully challenged his conviction on
Robinson, a friend of Spikes’s, who was                 direct appeal and through state postconviction
armed. While Robinson was driving them                  application. After he filed a federal habeas pe-
home, Spikes took Robinson’s gun from him               tition pursuant to 28 U.S.C. § 2254, the mag-
and emptied the bullets by firing it five or six        istrate judge found, inter alia, that the trial
times out the window. After going to bed, Ed-           court had violated the Confrontation Clause of
wards was awakened by Spikes’s yelling as               the Sixth Amendment, but held that the error
Robinson was hitting her.                               was harmless and denied the petition. We
                                                        granted a certificate of appealability to deter-
                                                        mine whether “the trial court erred in denying
                                                        [Robinson] the right to cross-examine Ed-
   1
                                                        wards about her deferred adjudication status.”2
     Spikes did not testify at trial, because she
could not be located. Vega’s account of Spikes’s
statements was admitted pursuant to the hearsay
                                                           2
exception for excited utterances. See TEX. R.                  Robinson also moves for reconsideration of
EVID. 803(2).                                                                               (continued...)

                                                    2
                        II.                                 U.S.C. § 2254(e)(1)).
   Because Robinson is a pro se litigant, we
liberally construe his brief and apply less strin-                                III.
gent standards in interpreting his arguments                   We now consider whether the trial court
than we would in the case of a counseled par-               erred in denying Robinson the right to cross-
ty. Grant v. Cuellar, 59 F.3d 523, 524 (5th                 examine Edwards about her deferred adjudica-
Cir. 1995). “In a habeas corpus appeal, we re-              tion status and residence at the county jail at
view the district court’s findings of facts for             the time of her testimony. If it so erred, we
clear error and its conclusions of law de novo,             must decide whether such error was harmless.
applying the same standards to the state
court’s decision as did the district court.”                                       A.
Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.                   The Sixth Amendment guarantees a defen-
2004) (citing Martinez v. Johnson, 255 F.3d                 dant the right to confront hostile witnesses.3
229, 237 (5th Cir. 2001)).                                  The trial court denied Robinson’s requested
                                                            cross-examination because, based on Texas
   “[W]e must defer to the state habeas court               law, Robinson had failed to show sufficient ac-
unless its decision was ‘contrary to, or in-                tual bias or prejudice. This denial, contrary to
volved an unreasonable application of, clearly              clearly established federal law, violated Rob-
established Federal law, as determined by the               inson’s Confrontation Clause right.
Supreme Court of the United States.’”
Haynes v. Cain, 298 F.3d 375, 379 (5th Cir.                    The magistrate judge correctly found that
2002) (en banc) (quoting 28 U.S.C. § 2254-                  the trial court’s decision contravened Supreme
(d)(1)). “A decision is contrary to clearly es-             Court precedent. In Alford v. United States,
tablished Federal law ‘if the state court arrives           282 U.S. 687 (1931), the Court upheld the de-
at a conclusion opposite to that reached by                 fendant’s right to impeach a witness by dem-
[the Supreme Court] on a question of law or if              onstrating that, because of the witness’s incar-
the state court decides a case differently than             ceration at the time of his testimony, his “tes-
[the] Court has on a set of materially indistin-            timony was biased because given under prom-
guishable facts.’” Hill v. Johnson, 210 F.3d                ise or expectation of immunity, or under the
481, 485 (5th Cir. 2000) (quoting Williams v.               coercive effect of his detention by officers of
Taylor, 529 U.S. 362, 413 (2000)). Finally,                 the United States.” Id. at 693. The Court re-
“[f]actual determinations by state courts are               visited this issue in Davis v. Alaska, 415 U.S.
presumed correct absent clear and convincing                308 (1974), and held that it was a violation of
evidence to the contrary.” Miller-El v. Cock-               the Confrontation Clause for the trial court to
rell, 537 U.S. 322, 324 (2003) (citing 28                   deny cross-examination of the crime’s only
                                                            eyewitness about his probationary status. The
                                                            witness was on probation for a crime commit-
   2
     (...continued)                                         ted while he was a juvenile, but the Court
the ruling that his reply brief was not timely filed,       found that the Confrontation Clause trumped
but he provides no evidence to corroborate his
claim that he moved for a filing extension until De-
cember 19 and that he placed the brief in the prison
                                                               3
mail system on December 14. It was not received                 “In all criminal prosecutions, the accused shall
at the clerk’s office until January 12, so we find it       enjoy the right . . . to be confronted with the wit-
to be untimely.                                             nesses against him.” U.S. CONST. amend. VI.

                                                        3
the state’s important interest in protecting the        status and residency at the county jail at the
confidentiality of a juvenile offender’s record.        time of her testimony. The failure to do so
Id. at 320.                                             was contrary to clearly established Federal
                                                        law.
    It is curious that the state does not attempt
to distinguish these two Supreme Court cases                                    B.
on which the magistrate judge rested her hold-              “[I]mproper denial of a defendant’s oppor-
ing. Indeed, its brief does not mention either;         tunity to impeach a witness for bias, like other
instead, it claims that in United States v. Ham-        Confrontation Clause errors, is subject to . . .
ilton, 48 F.3d 149 (5th Cir. 1995), we held             harmless-error analysis.” Delaware v. Van
that a judge is within his discretion to deny           Arsdall, 475 U.S. 673, 684 (1986). Robinson
cross-examination about a witness’s deferred            urges us to use the standard articulated in
adjudication status. Two cases, both of which           Chapman v. California, 386 U.S. 18, 24
are cited elsewhere in the state’s brief, plainly       (1967), which holds that error is reversible un-
show that this argument is meritless.                   less it is “harmless beyond a reasonable
                                                        doubt.” On habeas review, however, we are
   The proposition for which the state cites            bound to apply Brecht v. Abrahamson, 507
Hamilton has been limited to instances in               U.S. 619, 637-38 (1993), under which a de-
which the witness is on deferred adjudication           fendant must show that the error resulted in
for a misdemeanor.4 Edwards was charged                 “actual prejudice.” Actual prejudice is present
with a felony,5 so Hamilton is inapposite. Al-          if the error “had substantial and injurious effect
so, Hamilton’s need to cross-examine the wit-           or influence in determining the jury’s verdict.”
ness about his adjudicatory status was mitigat-         Id. at 637 (quoting Kotteakos v. United States,
ed, because “Hamilton was permitted to elicit           328 U.S. 750, 776 (1946)).
evidence regarding the pending misdemeanor
offenses during the cross examination of an-               Robinson claims that because the merits of
other witness.” Landerman, 109 F.3d at 1063             his Confrontation Clause claim were not con-
n.15. Robinson, unlike Hamilton, had no such            sidered on direct review, he never received the
opportunity to demonstrate Edwards’s pend-              benefit of the Chapman standard, and thus we
ing offense.                                            must apply it here. We have rejected this ar-
                                                        gument and the analysis of the Eighth Circuit
   The trial court should have protected                cases cited by Robinson, and we have held that
Robinson’s constitutional right to cross-exam-          the Brecht standard applies on habeas review,
ine Edwards about her deferred adjudication             regardless of the claim’s treatment on direct
                                                        review. See Hogue v. Johnson, 131 F.3d 466,
                                                        498-99 (5th Cir. 1997).6 Under Brecht, “it is
   4
     See United States v. Alexius, 76 F.3d 642,
646 (5th Cir. 1996); United States v. Landerman,
                                                           6
109 F.3d 1053, 1063 n.15 (5th Cir. 1997).                     The enactment of the Antiterrorism and Ef-
                                                        fective Death Penalty Act (“AEDPA”) did not
   5
     Edwards was on deferred adjudication for           affect this holding. Robertson v. Cain, 324 F.3d
possession of cocaine under twenty-eight grams,         297, 299 (5th Cir. 2003) (“We hold that AEDPA’s
which is a felony under Texas law. See TEX.             restrictions on federal review of state habeas
HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D),             decisions do not alter Brecht’s mandate for harm-
481.115(a), (d) (Vernon 2003).                                                              (continued...)

                                                    4
not for this court to decide whether we think             Third, Edwards’s credibility was impeached
the jury’s verdict was correct; instead, the              through other means. Finally, Edwards’s tes-
question for the court is whether we have a               timony was corroborated.
grave doubt that the constitutionally erroneous
instruction . . . had a substantial and injurious             Robinson produced no evidence tying Ed-
effect or influence in determining the jury’s             wards to the gun. The trial court denied Rob-
verdict.” Robertson, 324 F.3d at 309 (internal            inson’s requested cross-examination because,
citations and quotations omitted).                        among other reasons, Robinson “[hadn’t] even
                                                          established [that the gun belonged to Edwards]
                      C.                                  in any way, shape, or form, not even close to
    The magistrate judge found that the error             that.” And later in the trial, “[t]here’s nothing
was harmless, and we agree. To make this de-              to tie the gun to her. Nothing.” This connec-
termination, we carefully consider the likelyef-          tion is critical, because Robinson intended to
fect that Edwards’s deferred adjudication stat-           use Edwards’s status to show that unless she
us and residency at the county jail would have            lied and convinced the police that the gun be-
had if the jury had been empowered to give it             longed to Robinson she would be charged with
full consideration.                                       a probation violation. To be logically effec-
                                                          tive, however, this argument requires at least
   Robinson argues that the error was not                 some evidence showing that the gun could be-
harmless because Edwards would have been                  long to Edwards, evidence Robinson could not
impeached if the cross-examination had been               marshal. If there was no reasonable basis for
permitted; the alleged criminal activity would            thinking that the gun belonged to Edwards, it
have damaged Edwards’s credibility. Further,              is unlikely she would feel compelled to lie to
Robinson would have argued that the gun be-               avoid a probation violation for owning the
longed to Edwards, who was prohibited from                gun.
possessing a firearm while on probation. Ed-
wards was thus motivated to lie about Robin-                  Second, Edwards was not trying to avoid
son’s ownership of the gun, because she would             contact with the police. In fact, it was she
be punished for a probation violation if the              who made the 911 call that summoned them to
police discovered that the gun was hers. This             the house. Edwards also testified that Spikes
reasoning, however, does not overcome the                 did not initially tell Vega about the gun but did
harmless error standard.                                  so only after Edwards’s prompting. Ed-
                                                          wards’s behavior does not indicate an over-
   There are four reasons that, taken together,           whelming intent to avoid interaction with pol-
convince us the error is harmless. First, Rob-            ice about the gun. It is plausible that the jury
inson did not produce any evidence tying Ed-              could even find that Edwards’s credibility was
wards to the gun. Second, Edwards was not                 bolstered by her status; despite the fact that
trying to avoid contact with law enforcement.             she was on probation, she initiated contact
                                                          with the police. The jury may have found that
                                                          if the gun was hers, she was unlikely to have
   6                                                      called 911 and to have encouraged Spikes to
    (...continued)
                                                          report the gun to the officers, because these
less error analysis by federal courts when state
courts have failed to address the question of harm-
                                                          actions would place her at risk of being found
less error.”).                                            in violation of her probation.

                                                      5
   Third, Edwards’s credibility was impeached          dence at the county jail at the time of her tes-
through other means. Robinson introduced               timony. This error, however, was harmless, so
evidence that Edwards was not trustworthy              we AFFIRM the denial of the petition. We al-
based on her theft conviction. He also demon-          so DENY the motion for reconsideration of
strated that Edwards had sent Robinson ro-             our ruling on the timeliness of the reply brief.
mantic letters, which may have indicated that
her testimony was biased by a jealousy of
Spikes and a desire to see Spikes and Robin-
son separated. Though the introduction of Ed-
wards’s deferred adjudication status and resi-
dency in the county jail may have further dam-
aged her credibility, it would not be impeach-
ing otherwise reputable testimony, but only
adding one more reason to the two already
given to the jury as to why Edwards was not
credible.

   Finally, as the magistrate judge found, Ed-
wards’s testimony was corroborated. Several
details of her testimony, including that the gun
belonged to Robinson, were corroborated by
Spikes’s report to Vega. Edwards’s and
Spikes’s accounts were corroborated by Ve-
ga’s testimony that Spikes showed visible
signs of being struck in the head, and that the
gun was in the pizza box.

   At this stage of habeas review we do not
determine whether we think the jury verdict
was correct. We do not consider whether any
of the above reasons, standing alone, or even
any two or three of them together, would ren-
der the error harmless. But taking into ac-
count all four reasons, and adhering to the re-
quired standard of review, we do not have a
grave doubt that the trial court’s error had a
substantial and injurious effect or influence on
the verdict. Thus, under Brecht, this error was
harmless.

                       IV.
   In summary, the trial court violated Robin-
son’s constitutional right to confront Edwards
about her deferred adjudication status and resi-

                                                   6
