United States Court of Appeals Fifth Circuit 

## FILED March 22, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 04-70035

____________ JOSEPH ROLAND LAVE, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIREC TOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

Appeal from the United States District Court For the Northern District of Texas
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Joseph Lave appeals th e district court’s denial of his habeas peti tion under 28 U.S.C. § 2254. He argues th at his Sixt h Amendment rights were vio lat ed under a retroactive application of the Supreme Court’s deci sio n in Craw ford v. Washington , 541 U.S. 36 (2004), which held t hat testimo nial, out-of-court statem ents are inadmissible unless the wit ness is unavailable to testify and th e defendant has had a prior opportunity to cross-examine the witness about the statement. Id. at-2-

59. The facts of this case were detailed in o ur previous opinio n granting Lave a certificate of
appealabilit y. S ee Lave v. Dretke , 416 F.3d 372 (5th Cir. 2005). At Lave’s capital murder trial, Officer Kevin Hughes, one of th e state’s wit nesses, testified as to a statement by one of Lave’s alleged accomplices. In the course of an interrogation, the accomplice told Officer Hughes that Lave
com mit ted th e murder. A jury convicted Lave, and he was sentenced to death. The conviction and sentence were affirmed on direct appeal by t he Texas Court of Criminal Appeals, and the Supreme Court denied his peti

tion fo r a writ of certiorari
. Lave filed for state habeas corpus relief, which was also denied. Lave th en sought federal habeas rel i ef. The district court referred the case to a magistrate judge, who, on th e day aft er Craw ford was announced, issued a report and recom mendation to deny th e peti tion. In his objections to the magistrate’s report, Lave argued for the first time that Officer Hughes’s testimo ny vio lat ed his right to confrontation under the Sixt h Amendment
. The district court denied th e peti

tion , hol ding in part that Craw ford does not apply retroactively. We granted a certificat e of appealability on t hat single issue, reserving the question of whether the district court abused it s discretion by not staying th e proceedings so th at Lave could return to state c ourt an d exhaust his state remedies as to his Craw ford claim. See Lave , 416 F.3d at 382. “In reviewing a rul

ing on th e merit s of a habeas claim, the district court’s findings of fact are reviewed fo r clear error; it s conclusions of law, de novo .” Schaetzle v. Cockrell , 343 F.3d 440, 443 (5th Cir. 2003). Under T

eague v. Lane , 489 U.S. 288 (1989), courts should not apply a new rule of criminal procedure on collat eral review unless it falls int o one of two narrow categories. S ee Beard
v. Banks , 542 U.S. 406, 416 (2004). The first category is for rules “forbidding punishment of certain1 Lave makes no argument th at Craw ford falls int o the fir st exception, which applies to rules th at “are mo re accurately described as substantive rules not subject to Teague ’s bar.” B eard , 542 U.S. at 411 n.3 (citation omitted). -3- primary conduct” or fo r rules “prohibiting a certain category of punishment fo r a class of defendants because of th eir status or of fense.” I d. (int ernal quotation and alt eration om it ted). Th e second category is fo r “watershed rules of criminal procedure implicat ing the fundamental fairness and accuracy of th e criminal proceeding.” I d. at 417 (quoting O’Dell v. Netherland , 521 U.S. 151, 157 (1997)). Lave argues that the rule announced in Craw ford was new and th at it falls wit hin the second exception to th e general rule th at new rules of criminal procedure should not be applied retroactively to cases on collat eral review. 1 A case announces a new rule when it “breaks new ground or impo ses a new obligation on the States or th e Federal Government.” Teague , 489 U.S. at 301. Before Craw ford , testimo nial out-of

court statem

ents could be presented to the jury if the court deemed them reliable. Craw ford , 541 U.S. at 62 (descri

bing t he test established in O hio v. Roberts , 448 U.S. 56 (19 80)). As the government concedes, Craw ford overruled Roberts as that case appl ies to testimo nial st atem

ents. See Bintz v. Bertrand , 403 F.3d 859, 866 (7th Cir. 2005) (“It seems clear th at Craw ford was a clean break from the line of precedent established by Roberts .”). Because Craw ford changed the test fo r th e admissibilit y o f certain out-of-court statements, it imposes new obligations on state and federal courts and qualifies as a new rule of criminal procedure. Lave asserts th at th e rule announced in Craw ford implicat es the fundame nt al fairness and accuracy of criminal proceedings. He stresses that in Craw ford , the Supreme Court described the right to co nfrontation as a “bedrock procedural guarantee” and the admission of out-of-court testimo nial statem

ents as a “core confrontation vio lat io n[].” S ee Craw ford , 541 U.S. at 42, 63. The-4-

Court has explained, however, th at th e conclusion “[t]hat a new procedural rule is ‘fundamental’ in
som e abstract sense is not enough; th e rule must be one ‘without which the likeliho od of an accurate conviction is seriously diminished.’” Schriro v. Summerlin , 542 U.S. 348, 352 (2004) (quoting Teague , 489 U.S. at 313). In other words, Teague analy sis is at least partially comparative and requires assessing th e ri sk of false conviction under the old rule against th at ri sk under the new rule. Lave asserts th at th e Craw ford rule improves the accuracy of criminal proceedings because it excludes custodi al statem ents by alleged accomplices unless the defendant has had a prior opportunity to cross-examine th at alleged accomplice. He claims that, because such statements are highly unreliable and presumptively suspect, the rule uniquely enhances the accuracy of a trial. See United States v. Flores , 985 F.2d 770, 780 (5th Cir. 1993) (explaining that testimonial, accusatory statem ents made to non-undercover pol ice are unreliable because the declarant has a strong incentive to shift blame and curry favor with prosecutors). Lave’s argument, however, does not show th at the Roberts regime “so seriously diminishe[d] accuracy th at th ere [was] an impermissibly large ri sk of punishing conduct the law does not reach.” Summerlin , 542 U.S. at 355-56 (int ernal quotations and cit ations om it ted). Out-of

-court testimo nial statem ents were not indiscriminat ely presented to juries under the Roberts regime. Indeed, they were inadmissible unless th ey bore adequate “indicia of reliabilit y. ” R oberts , 448 U.S. at 66. Because only th ose statem

ents th at were deemed reliable could be admitted under Roberts , the fact that the class of statem ents as a whole is suspect does not demonstrate th at Roberts created an impermissible ri sk of false conviction. By it s own terms, Craw

ford does not purport to announce a rule th at increases the reliabilit y of tri al testimo ny. The opinion states, “the [Confrontation] Clause’s ultimate goal is to ensure-5-

reliabilit y o f evidence, but it is a procedural rather than a substantive guarantee. It commands, not th at evidence be reliable, but th at reliabilit y be assesse d in a particular manner: by testing in the crucible of cross-examination.” 541 U.S. at 61. As other circuits have held, the rule announced in Craw ford does not assure greater accuracy because it bars adm issio n of a statem

ent to which it applies even when th e statem ent is highly reliable. S ee Murillo v. Frank , 402 F.3d 786, 790 (7th Cir. 20 05) (“The point of Craw ford is not th at only live testimo ny is reliable, but th at the [S]ixt h [A]mendment gives th e accused a right to insist on live t estimo ny, whether th at demand prom otes
or frustrates accuracy.” ); Mungo v. Duncan , 393 F.3d 327, 336 (2d Cir. 2004) (“Because T eague ’s test of a watershed rule requires improvement in the accuracy of the tri al process overall, we conclude th at Craw ford is not a wat ershed rule . . . [and] should not be applied retroactively on collateral review.”). The rule announced in Craw ford does not implicat e the fundamental fairness and accuracy of criminal proceedings. While it may implicat e the core of the confrontation right, it is no t a rule wit hout which th ere is an impermissibly high risk of false conviction. In so holding, we join the majo rity of oth er circuits th at have held or sugg ested that Craw ford should not be applied retroactively. S ee McGonagle v. United States , 137 Fed. Appx. 373 (1st Cir. 2005) (unpublished opinio n); Murillo , 402 F.3d 786; Dorchy v. Jones , 398 F.3d 783 (6th Cir. 2005); Mungo , 393 F.3d 327; Brow

n v. Uphoff

, 381 F.3d 1219 (10th Cir. 2004); Evans v. Luebbers , 371 F.3d 438 (8th Cir. 2004). But see Bockting v. Bayer , 399 F.3d 1010 (9th Cir. 2005). Because Craw

ford does not appl

y t o this case, the district court did not abuse it s discretion by refusing to stay th e proceedings while Lave presented his Craw ford claim to a state habeas court. See Rhines v. Weber , 544 U.S. 269, 125 S.Ct. 1528, 15 35 (2005) (expl aining t hat a district court-6-

should not stay proceedings to perm it a habeas petitioner to exhaust state claims when such claims are “plainly merit less”). Accordingly, we AFFIRM the judgment of the district court.DeMOSS, Circuit Judge, dissenting:

I would hold th at Craw

ford is retroactive because it creates a watershed rule of criminal procedure th at affects th e fundamental fairness and accuracy of a criminal proceeding. S ee Teague , 489 U.S. at 311-12; see also Banks , 542 U.S. at 417. The majority notes the aspects of Craw ford , particularly it s break from th e prior Roberts line, th at make it a new rule. I part ways from the majo rity ’s conclusion th at Craw ford does not affect the fundamental fairness and accuracy of criminal proceedings. In my view, the Craw ford majo rity opinio n it self explains th at the rule adopted therein affects fundamental fairness and accuracy of criminal proceedings, and as such, the rule sati sfies the second Teague exception. The following quotation is just one of several establishing this point, To be sur e, the [Conf

rontation] Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather th an a substantive guarantee. It com mands, not th at evidence be reliable, but th at rel iabilit y be assessed in a particular manner: by testing in th e crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence . .
. but about how reliabilit y can best be determined. Craw ford , 541 U.S. at 61. Having declared th e constitutional guarantee to protect the procedure deemed best-suited fo r th e determ

inat io n of a testimo nial statem ent’s reliabilit y as to the truth, Craw ford it self fo recloses the conclusion th at th e accuracy of criminal proceedings is not centrally affected by adherence to the rule announced. Furthermore, the Craw ford majo rity makes clear th at f undamental fairness is crippled — to say nothing of affected — by the absence of Craw ford ’s rule requiring confrontation, th at i s, “t he only indicium of reliability sufficient to satisfy constitutional demands.” I d
. at 69. Wit hout confrontation in such cases, “t he likeliho od of an accurate conviction is seriously diminished.” See Schriro , 542 U.S. at 352 (citing Teague , 489 U.S. at 311). As such, Craw ford falls clearly wit hin-8-

Teague ’ s second exception permitting retroactivit y. Accordingly, the district court erred in concluding that Craw

ford is no t retroactive.