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, DIRECTOR, 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 appealsthe district court’s denial of his habeas petition under 28 U.S.C. § 2254.

He argues that his Sixth Amendment rights were violated under a retroactive application of the

Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), which held that

testimonial, out-of-court statements are inadmissible unless the witness is unavailable to testify and

the 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 our previous opinion granting Lave a certificate of

appealability. See Lave v. Dretke, 416 F.3d 372 (5th Cir. 2005). At Lave’s capital murder trial,

Officer Kevin Hughes, one of the state’s witnesses, 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

committed the murder. A jury convicted Lave, and he was sentenced to death. The conviction and

sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals, and the Supreme

Court denied his petition for a writ of certiorari. Lave filed for state habeas corpus relief, which was

also denied. 

Lave then sought federal habeas relief. The district court referred the case to a magistrate

judge, who, on the day after Crawford was announced, issued a report and recommendation to deny

the petition. In his objections to the magistrate’s report, Lave argued for the first time that Officer

Hughes’stestimonyviolated hisright to confrontationundertheSixthAmendment. The district court

denied the petition, holding in part that Crawford does not apply retroactively. We granted a

certificate of appealability on that single issue, reserving the question of whether the district court

abused its discretion by not staying the proceedings so that Lave could return to state court and

exhaust his state remedies as to his Crawford claim. See Lave, 416 F.3d at 382.

“In reviewing a ruling on the merits of a habeas claim, the district court’sfindings of fact are

reviewed for clear error; its conclusions of law, de novo.” Schaetzle v. Cockrell, 343 F.3d 440, 443

(5th Cir. 2003). Under Teague v. Lane, 489 U.S. 288 (1989), courts should not apply a new rule of

criminal procedure on collateral review unless it falls into one of two narrow categories. See Beard

v. Banks, 542 U.S. 406, 416 (2004). The first category is for rules “forbidding punishment of certain
1 Lave makes no argument that Crawford falls into the first exception, which applies

to rulesthat “are more accurately described assubstantive rules not subject to Teague’s bar.” Beard,

542 U.S. at 411 n.3 (citation omitted).

-3-

primary conduct” or for rules “prohibiting a certain category of punishment for a class of defendants

because of their status or offense.” Id. (internal quotation and alteration omitted). The second

category is for “watershed rules of criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.” Id. at 417 (quoting O’Dell v. Netherland, 521 U.S. 151, 157

(1997)). Lave argues that the rule announced in Crawford was new and that it falls within the second

exception to the generalrule that new rules of criminal procedure should not be applied retroactively

to cases on collateral review.1

A case announces a new rule when it “breaks new ground or imposes a new obligation on the

States or the Federal Government.” Teague, 489 U.S. at 301. Before Crawford, testimonial out-ofcourt statements could be presented to the jury if the court deemed them reliable. Crawford, 541

U.S. at 62 (describing the test established in Ohio v. Roberts, 448 U.S. 56 (1980)). As the

government concedes, Crawford overruled Roberts as that case applies to testimonial statements.

See Bintz v. Bertrand, 403 F.3d 859, 866 (7th Cir. 2005) (“It seems clear that Crawford was a clean

break from the line of precedent established by Roberts.”). Because Crawford changed the test for

the admissibility of 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 that the rule announced in Crawford implicates the fundamental fairness and

accuracy of criminal proceedings. He stresses that in Crawford, the Supreme Court described the

right to confrontation as a “bedrock procedural guarantee” and the admission of out-of-court

testimonialstatements as a “core confrontation violation[].” See Crawford, 541 U.S. at 42, 63. The
-4-

Court has explained, however, that the conclusion “[t]hat a new procedural rule is ‘fundamental’ in

some abstract sense is not enough; the rule must be one ‘without which the likelihood 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 analysis is at least partially comparative and

requires assessing the risk of false conviction under the old rule against that risk under the new rule.

Lave asserts that the Crawford rule improves the accuracy of criminal proceedings because

it excludes custodial statements by alleged accomplices unless the defendant has had a prior

opportunity to cross-examine that 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

statements made to non-undercover police are unreliable because the declarant has a strong incentive

to shift blame and curry favor with prosecutors). 

Lave’s argument, however, does not show that the Robertsregime “so seriouslydiminishe[d]

accuracy that there [was] an impermissibly large risk of punishing conduct the law does not reach.”

Summerlin, 542 U.S. at 355-56 (internal quotations and citations omitted). Out-of-court testimonial

statements were not indiscriminately presented to juries under the Robertsregime. Indeed, they were

inadmissible unlessthey bore adequate “indicia of reliability.” Roberts, 448 U.S. at 66. Because only

those statements that were deemed reliable could be admitted under Roberts, the fact that the class

ofstatements as a whole is suspect does not demonstrate that Roberts created an impermissible risk

of false conviction.

By its own terms, Crawford does not purport to announce a rule that increases the reliability

of trial testimony. The opinion states, “the [Confrontation] Clause’s ultimate goal is to ensure
-5-

reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not

that evidence be reliable, but that reliability be assessed 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

Crawford does not assure greater accuracy because it bars admission of a statement to which it

applies even when the statement is highly reliable. See Murillo v. Frank, 402 F.3d 786, 790 (7th Cir.

2005) (“The point of Crawford is not that only live testimony is reliable, but that the [S]ixth

[A]mendment gives the accused a right to insist on live testimony, whether that demand promotes

or frustrates accuracy.” ); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (“Because Teague’s

test of a watershed rule requiresimprovement in the accuracyofthe trialprocess overall, we conclude

that Crawford is not a watershed rule . . . [and] should not be applied retroactively on collateral

review.”). 

The rule announced in Crawford does not implicate the fundamentalfairness and accuracy of

criminal proceedings. While it may implicate the core of the confrontation right, it is not a rule

without which there is an impermissibly high risk of false conviction. In so holding, we join the

majority of other circuits that have held or suggested that Crawford should not be applied

retroactively. See McGonagle v. United States, 137 Fed. Appx. 373 (1st Cir. 2005) (unpublished

opinion); Murillo, 402 F.3d 786; Dorchy v. Jones, 398 F.3d 783 (6th Cir. 2005); Mungo, 393 F.3d

327; Brown 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 Crawford does not apply to this case, the district court did not abuse its discretion

by refusing to stay the proceedings while Lave presented his Crawford claim to a state habeas court.

See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005) (explaining that a district court
-6-

should not stay proceedings to permit a habeas petitioner to exhaust state claims when such claims

are “plainly meritless”). Accordingly, we AFFIRM the judgment of the district court.
DeMOSS, Circuit Judge, dissenting:

I would hold that Crawford is retroactive because it creates a watershed rule of criminal

procedure that affects the fundamental fairness and accuracy of a criminal proceeding. See Teague,

489 U.S. at 311-12; see also Banks, 542 U.S. at 417. The majority notes the aspects of Crawford,

particularly its break from the prior Roberts line, that make it a new rule. I part ways from the

majority’s conclusion that Crawford does not affect the fundamentalfairness and accuracyof criminal

proceedings. In my view, the Crawford majority opinion itself explains that the rule adopted therein

affects fundamental fairness and accuracy of criminal proceedings, and as such, the rule satisfies the

second Teague exception. The following quotation is just one of several establishing this point, 

To be sure, the [Confrontation] Clause’s ultimate goal is to ensure reliability of

evidence, but it is a proceduralrather than a substantive guarantee. It commands, not

that evidence be reliable, but that reliability be assessed in a particular manner: by

testing in the crucible of cross-examination. The Clause thus reflects a judgment, not

only about the desirability of reliable evidence . . . but about how reliability can best

be determined.

Crawford, 541 U.S. at 61. 

Having declared the constitutional guarantee to protect the procedure deemed best-suited for

the determination of a testimonialstatement’sreliability asto the truth, Crawford itselfforeclosesthe

conclusion that the accuracy of criminal proceedingsis not centrally affected by adherence to the rule

announced. Furthermore, the Crawford majority makes clear that fundamental fairness is crippled

— to say nothing of affected — by the absence of Crawford’s rule requiring confrontation, that is,

“the only indicium of reliability sufficient to satisfy constitutional demands.” Id. at 69. Without

confrontation in such cases, “the likelihood of an accurate conviction is seriously diminished.” See

Schriro, 542 U.S. at 352 (citing Teague, 489 U.S. at 311). As such, Crawford falls clearly within
-8-

Teague’s second exception permitting retroactivity. Accordingly, the district court erred in

concluding that Crawford is not retroactive.