United States Court of Appeals

Fifth Circuit

FILED

July 7, 2005

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 Roland Lave, Jr. (“Lave”) moves for a certificate of appealability (“COA”) to appeal

the district court’s denial of his habeas petition under 28 U.S.C. § 2254. Specifically, he argues that

reasonable jurists would find it debatable whether: 1) Lave’s Sixth Amendment rights were violated

under a retroactive application of the Supreme Court’s decision in Crawford v. Washington, 541

U.S. 36 (2004); 2) Lave was denied effective assistance of counsel; 3) the district court erred in

denying Lave’s motion for limited discovery; and 4) the trial court violated Lave’s rights under the

Fifth Amendment’s prohibition against double jeopardy. In addition, Lave contends that the district
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court abused its discretion by not allowing him to amend his federal petition or return to state court

in order to raise a Sixth Amendment Crawford claim.

I

Lave,JamesLangston (“Langston”), and TimothyBates(“Bates”) conspired to roba sporting

goodsstore. During the robbery, the assailants brutally killed two of the store’s employees, Frederick

Banzhaf (“Banzhaf”) and Justin Marquart (“Marquart”). A third employee, Angela King, was also

attacked but managed to survive, call 911 and identify Langston as one of the perpetrators. As a

result of her identification, the police sought to apprehend Langston. During the attempted arrest,

Langston tried to run over the police officers. The police responded by shooting Langston who died

soon after. Inside Langston’s shoe, the police found a card with Bates’ name and phone number.

Using that information, the police arrested Bates, who identified Lave as the third robber.

Subsequently, the police executed a warrant and searched Lave’s apartment and automobile, where

they seized merchandise from the sporting goods store and other evidence. Lave surrendered to the

police two days later.

Lave was tried for the murder of Marquart. During the trial, the prosecution sought to

present Bates’ testimonial evidence through Kevin Hughes (“Hughes”), the police officer who had

taken Bates’ statement. Before calling Hughes to the stand, the prosecutor made the following

statement to the court outside the presence of the jury:

I represented to the Defense last night that I believe that the state of the

evidence now is that Mr. Lave killed all three people . . . . [I]f we rested with that

evidence, the Jury would not hear the testimony of Bates, because we )) I’ve

represented to Mr. Franklin [defense counsel] that we feel we didn’t have to call

Bates now, with the evidence being that way. I told Mr. Franklin that what I propose

to do was to adduce the statements of Bates through Sergeant Hughes, much as we

did at the last trial. At the last trial, it was )) the State’s theory of that was that they
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were admissions against penalinterest and Hughes could testifywhat Batessaid under

an admission against penal interest theory.

At the last trial, Mr. Franklin . . . objected. I told them if they waived

objection, what )) what I propose to do is adduce the statements of Mr. Bates

through Sergeant Hughes, and some salutary benefits would accrue to Mr. Lave.

One, the statement of Bates takes, at least circumstantially, two of the )) two of the

attacks off Mr. Lave. If you’ll recall, the statement of )) of Sergeant Hughes was

that Bates said t hat he saw Langston hit one of the boys with a hammer. I would

argue then on that evidence that )) that Langston attacked the boys.

So that takes a least two of the assaults off Mr. Lave, that’s in his best

interest. It was in my best interest, frankly, not to have to call Mr. Bates. I don’t

want to have to sponsor him; I don’t want to deal with him. If I can try this case

without having to cut a deal with Mr. Bates, I’d like to do that. I told the Defense if

I called Bates, Bates would automatically get a life sentence; I would offer him that.

I told them that even if I didn’t call him, he might get a life sentence. But I’m in a

much better posture of dealing with Mr. Bates at arm’s length if I don’t have to call

him.

So, that’s of some benefit to Mr. Lave, too, because if he gets the death

sentence, I )) I can’t see as he would want Mr. Bates to get a life sentence. So, I

saw some benefits for both sides, the )) the principal benefit being it takes a couple

of the attacks off Mr. Lave and puts those on Langston. And the )) the big benefit

to us is that it puts those on Langston. And the )) the big benefit to us is that it puts

a knife in Lave’s hands.

If you’ll remember, the statement of Bates is he saw Lave come out with a

knife and turn it over to Langston. And Mr. Bates said Lave got the money and left

with the money. So I saw both sides getting some benefit out of the statement of

Bates being adduced through Sergeant Hughes. I would only do that though, if the

Defense would waive objection.

This morning, Mr. Franklin and I talked. I told him I wouldn’t call Bates if

)) if the agreement could be reached. He asked me what would happen if I called ))

if he called Mr. Lave to the stand. I said, “Well, in that case, I would call Mr. Bates

in rebuttal, I anticipate,” and I think that’s where the matter is now.

I will represent to the Defense if )) if that agreement is acceptable to them,

where they achieve some benefit and I achieve some benefit, if we can adduce that

statement of Batesfrom Sergeant Hughes without objection, then I do not intend and

I will not callBatesin my case in chief, nor willI call him in rebuttal unless something

happens from the Defense side that I feel, in good faith, would require Bates to be

called )) to counter something.

All I understand the Defense has as a defense is an alibi. And certainly, if ))

as I understand the defense, I wouldn’t anticipate nor would I call Bates to rebut an

alibi. So, if that’s acceptable to y’all that’s what I offer to do. 

Defense counsel and Lave both expressly agreed to the prosecution’s proposal. As a result,
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Sergeant Hughes took the stand and testified that Bates told him that, on the night of the crime, he

and Langston went to the sporting goods store and met with Lave. Langston gave Lave a gun and

the two of them went to the front and broke in. Bates waited in the back until his accomplices

allowed him to enter. Hughes stated that Bates had told him that while waiting in the hallway he saw

Lave in a room with Langston and that Langston was striking one of the victims with a hammer.

When Bates saw this, he went outside to the back of the store and waited for his accomplices.

Eventually, Lave, with Langston, emerged from the back carrying the knife and drove off with the

money.

Lave did not testify. At the end of the trial, the jury convicted Lave for the murder of

Marquart, under Texas’ law of the parties, and sentenced him to death. Lave appealed the verdict

to the Texas Court of Criminal Appeals. The court affirmed, and Lave filed a petition for a writ of

certiorari which the United States Supreme Court denied. Lave then filed an application for a writ

of habeas corpus which was denied by the state trial court; that decision was affirmed by the Texas

Court of Criminal Appeals.

Lave filed a petition for federal habeas relief with the United States District Court for the

Northern District of Texas. The case was sent to a magistrate judge who issued a report and

recommendation to deny the petition. The report was issued one day after the Supreme Court issued

its decision in Crawford holding that out-of-court statements by witnesses that are testimonial are

barred under the Confrontation Clause. 541 U.S. at 59. Consequently, Lave filed objections to the

report and recommendation, arguing for the first time that Officer Hughes’ testimony violated his

Sixth Amendment rights under the Confrontation Clause. He also argued that Crawford supported

his ineffective assistance of counsel claims and filed a motion to “have federal proceedings held in
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abeyance pending exhaustion of new issues in state court.” The district court rejected his objections

and his motion, finding that 1) Crawford did not apply retroactively; and 2) his counsel did not give

ineffective assistance because he did not have the benefit of the Crawford decision at the time he

conceded to allow Officer Hughes to testify. As a result, the district court adopted the magistrate’s

report and recommendation and denied Lave’s petition. The district court subsequently denied

Lave’s motion for a COA for essentially the same reasons.

II

In order to appeal the district court’s denial of a habeas petition, Lave isrequired to first move

for a COA. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 332, 336 (2003) (explaining

that a COA is a “jurisdictional prerequisite” without which “federal courts of appealslack jurisdiction

to rule on the merits of appeals from habeas petitioners”). To obtain a COA, Lave must make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That showing

is made when a petition demonstrates that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). In other words, “[t]he question is the debatability of the underlying constitutional claim, not

the resolution of that debate.” Miller-El, 537 U.S. at 342. 

A

Lave argues that his Sixth Amendment rights were violated when Officer Hughes testified

asto what Bates had told him regarding Lave’s participation in the crime. The Confrontation Clause

of the Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. Last year, the

Supreme Court held that, under this clause, “[t]estimonial statements of witnesses absent from trial
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[can be] admitted only where the declarant is unavailable, and only where the defendant has had a

prior opportunity to cross-examine.” Crawford, 541 U.S. at 59. The Court further noted that

“[s]tatements taken by police officers in the course of interrogations are also testimonial under even

a narrow standard.” Id. at 52. In this case, the parties do not dispute that Bates was available to

testify and Lave was never given an opportunity to cross-examine him. Thus, under Crawford,

reasonable jurists would find debatable whet her Lave’s Sixth Amendment rights were violated

through Officer Hughes’ testimony. Indeed, the State concedes that the “application of Crawford

would undoubtedly afford Lave a new trial.” 

However, this court has not decided whether Crawford may be applied retroactively on

collateral review. Under the framework established by the Supreme Court in Teague v. Lane, 489

U.S. 288 (1989), a specific rule may be applied retroactivity following a three step process:

First, the court must determine when the defendant’s conviction became final.

Second, it must ascertain the legal landscape as it then existed, and ask whether the

Constitution, asinterpreted by the precedent then existing, compels the rule. That is,

the court must decide whether the rule is actually ‘new.’ Finally, if the rule is new,

the court must consider whether it falls within either of the two exceptions to

nonretroactivity.

Beard v. Banks, 124 S.Ct. 2504, 2510 (2004) (citations and quotations omitted). Thus, a new rule

will be applied retroactively only if 1) it “places certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to proscribe” Teague, 489 U.S. at 311; or 2)

it is “a watershed rule[] of criminal procedure implicating the fundamental fairness and accuracy of

the criminal proceeding.” Beard, 124 S.Ct. at 2513.

Various courtsthroughout the countryhave addressed thisissue with conflicting results. The

Second, Sixth, Seventh and Tenth circuits have all concluded that while Crawford is a new rule, it

is “not a watershed decision and is, therefore, not retroactively applicable to [a petitioner’s] initial
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habeas petition.” Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004); see also Mungo v.

Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (“Because Teague’s test of a watershed rule requires

improvement in the accuracy of the trial process overall, we conclude that Crawford is not a

watershed rule . . . [and] should not be applied retroactively on collateralreview.”); Dorchy v. Jones,

398 F.3d 783, 788 (6th Cir. 2005); and Murillo v. Frank, 402 F.3d 786, 789-91 (7th Cir. 2005). In

contrast, the Ninth Circuit recently rejected this approach and found that Crawford was retroactive

because “the Crawford rule is one without which the likelihood of accurate conviction is seriously

diminished.” Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005). Finally, several federal district

and state courts have held that Crawford does not recognize a new constitutional rule because the

“Court relied on the common law understanding of the hearsay rule and the prior interpretations of

the Sixth Amendment to the United States Constitution.” Brown v. Dretke, No.

Civ.A.SA-04CA-0543-X, Civ.A.SA-04CA-0725-X, 2004 WL 2538474, at *2 (W.D. Tex. Nov. 8,

2004). See also Bunton v. Texas, 136 S.W.3d 355, 368-69 (Tex. App. 2004). Complicating this

issue, is Lave and his counsel’s stipulation to admit Officer Hughes’ testimony for tactical reasons.

Indeed, in his prior murder trial, Lave objected to the admissibility of the same evidence for the exact

reasons that undergird Crawford. That objection, however, was overruled by the court.

Nevertheless, given the NinthCircuit’s decision in Bockting, reasonable jurists would debate whether

Crawford applies retroactively to Lave’s habeas petition. As a result, we grant the petitioner’s

request for a COA on this issue.

B

In a related claim, Lave allegesthat the district court erred in denying hisineffective assistance

of counsel(“IAC”) claim based on his attorney’s decision to allow the prosecution to present Bates’
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statement through Officer Hughes. In order to establish an IAC claim, Lave must 

demonstrate that 1) his counsel’s performance was deficient and 2) he was prejudiced by that

deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). “The failure to prove

either deficient performance or actualprejudice forecloses an ineffective assistance of counsel claim.”

Green v. Johnson, 160 F.3d 1029, 1035 (5thCir. 1998) (citing Moody v. Johnson, 139 F.3d 477, 483

(5th Cir. 1998)). To demonstrate deficient performance, Lave must show that his counsel’s

representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.

As to the second prong of the IAC test, to establish prejudice a “defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have beendifferent. Areasonable probabilityis a probabilitysufficient to undermine confidence

in the outcome.” Id. at 694.

Lave assertsthat histrialcounsel’s decisionto allow Bates’testimonythroughOfficer Hughes

was “irrational.” In support, he cites to the Supreme Court’s decision in Crawford and argues that

“[w]ith Crawford )) applied e.g. as an ‘old rule’ not clearly recognized but binding at the time of

Lave’s trial )) this is all the more obvious.” However, the deficiency prong of an IAC claim “is

judged by counsel’s conduct under the law existing at the time of the conduct.” Westley v. Johnson,

83 F.3d 714, 723 (5th Cir. 1996) (emphasis added). Since Crawford was decided years after Lave’s

conviction, it cannot be the basis for his IAC claim.

Lave arguesthat the district court erred by concluding that since Lave expressly endorsed his

counsel’s decision to allow Officer Hughes’ testimony regarding Bates’ statement, he is precluded

from attacking that strategy. In support, the district court cited to United States v. Weaver, where

the Seventh Circuit held that “[w]here a defendant, fully informed of the reasonable options before
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him, agrees to follow a particular strategy at trial, that strategy cannot later form the basis of a claim

of ineffective assistance of counsel.” 882 F.2d 1128, 1140 (7th Cir. 1989). However, the district

court did not deny Lave’s IAC claim solely on the basis of his voluntary agreement. Rather, it also

found that Lave’s counsel’s decision was not ineffective because it was part of a sound trialstrategy.

“A conscious and informed decision on trial tactics and strategy cannot be the basis for

constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire

trial with obvious unfairness.” United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002).

The State concedes that the district court erred when it stated that Lave’s counsel entered

into this agreement because the defendant did not want Bates in front of the jury. According to the

affidavit submitted by Lave’s trial counsel to the state habeas court, the decision to allow Officer

Hughesto testify was precipitated by two developments. First, during his earlier trial for the murder

of Banzhaf, Lave’s counsel did object to Officer Hughes’ testimony regarding Bates’ statements.

That objection, however, was overruled by the court. Second, as Lave’s counsel noted in its

affidavit:

We also agreed to have Officer Hughes testify because the State told us that they

would most likely not callBates as a witness(Because we could not offer and enforce

immunity, we could not call Bates and override a Fifth Amendment assertion). We

needed the jury to know about Bates’ s statem ents because one of the State’s

witnesses, Chris Gibbons, had left the impression that Lave killed the two boys, and

Bates’ statements dispelled this impression. Thus we had no choice but to have

Officer Hughes testify.

Lave acknowledges that while this was in fact his trial counsel’s strategy, it was still

“erroneous[] in light of the law and what [his counsel] knew of the facts at the time.” No further

explanation is given as to why he considers this strategy “erroneous.” Lave has failed to assert that

his counsel’s decision was not “conscious and informed” or that “it [was] so ill chosen that it
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permeate[d] the entire trial with obvious unfairness.” Jones, 287 F.3d at 331. Lave’s silence in this

matterleaves usto conclude that reasonable jurists would not find the district court’s decision to deny

his IAC claim debatable or wrong. Thus, we deny Lave’s request for a COA on this issue.

C

Lave also contends that the district court abused its discretion by denying his request for

limited discovery, including deposing Bates and DNA testing. He believes that this additional

discovery is necessary to establish his claims of actual innocence, IAC, and the State’s alleged

suppression of exculpatory evidence. 

A habeas petitioner may“invoke the processes of discoveryavailable under the FederalRules

of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good

cause shown grants leave to do so, but not otherwise.” Rector v. Johnson, 120 F.3d 551, 562 (5th

Cir. 1997) (citing Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996)). In order to establish good

cause, the petitioner must demonstrate that “a factual dispute, if resolved in the petitioner’s favor,

would entitle him to relief and the state has not afforded the petitioner a full and fair evidentiary

hearing.” Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994). Conclusional allegations are

insufficient to warrant discovery; the petitioner must set forth “specific allegations of fact.” United

States v. Webster, 392 F.3d 787, 802 (5th Cir. 2004).

Lave argues that the district court’s refusal to allow him to depose Bates constitutes error

because he was convicted based on statements made by Bates to the police officer. However, Lave

has failed to assert that there is any factual dispute as to whether Bates actually stated that Lave had

committed murder. Instead, he contends that the deposition is necessary to determine whether the

State violated the “Confrontation Clause’s ‘truthfinding function.’” This determination is not
11

contingent on the resolution of specific factual allegations because there is no dispute that the State

sought to enter Bates’ testimony without the benefit of cross-examination. See Lee v. Illinois, 476

U.S. 530, 541 (1986) (the “truthfinding function of the Confrontation Clause is uniquely threatened

when an accomplice’s confession issought to be introduced against a criminal defendant without the

benefit of cross-examination”). Thus, since Lave has failed to show how Bates’ deposition would

resolve a live factual dispute, reasonable jurists would not argue that the district court abused its

discretion.

Similarly, Lave argues that DNA testing of blood evidence is necessary in order to challenge

Bates’ statements. However, Lave has not indicated what specific information he anticipates DNA

testing would provide and, more importantly, how that information could be used to impeach Bates’

credibility. In other words, Lave has once again failed to show how the additional discovery would

resolve a specific factual dispute. Since this court does not “sanction fishing expeditions based on

a petitioner’s conclusory allegations”, Lave’s motion for a COA on this matter is denied. Rector, 120

F.3d at 562.

D

Lave contends that his Fifth Amendment rights under the Double Jeopardy Clause were

violated because, at the time of the trial, he had already been convicted of murdering Banzhanf,

another victim from the same robbery that resulted in Marquart’s death. He argues that the

prosecution’s decision not to seek the death penalty in the Banzhanf case constituted “a tacit

admission of lack of confidence that there was sufficient evidence for the jury to find Lave death

eligible as a party to capital murder under Texas law.” As a result, Lave alleges the prosecution was

estopped from seeking the death penalty in this case.
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Lave’s argument is without merit. The Double Jeopardy Clause of the Fifth Amendment

states that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life

or limb.” U.S. CONST. amend. V. This Clause, however, applies only to capital-sentencing

proceedings where such proceedings “have the hallmarks of the trial on guilt or innocence.”

Sattazhan v. Pennsylvania, 537 U.S. 101, 106 (2003). As the Supreme Court noted, “an ‘acquittal’

at a trial-like sentencing phase, rather than the mere imposition of a life sentence, is required to give

rise to double-jeopardy protections.” Id. at 107. Lave has not shown that reasonable jurists would

debate whether the prosecution’s decisio n not to seek the death penalty is the equivalent of an

“acquittal at a trial-like sentencing phase.” Morever, double jeopardy only prohibits the State from

“punishing twice, or attempting a second time to punish criminally for the same offense.” Witte v.

United States, 515 U.S. 389, 396 (1995) (emphasis added). Even though the death of Banzhanf and

Marquart stemmed from the same robbery, these murders constitute separate offences. See Miller

v. Turner, 658 F. 2d 348, 350 (5th Cir. 1981) (rejecting as “frivolous” defendant’s argument that

“because the two murders for which he was charged occurred during the same criminal episode, his

conviction and sentencing on two counts of murder violated the Double JeopardyClause of the Fifth

Amendment.”). Accordingly, Lave’s motion for COA based on a double jeopardy claim is denied.

E

Finally, Lave argues that the district court abused its discretion by denying his motion to 1)

hold the federal proceedings in abeyance to allow Lave to return to state court in order to exhaust

his Crawford claim or 2) allow him to amend his federal habeas petition to include his Crawford

claim. Since a COA is not a prerequisite to review the denial of a motion to stay proceedings, we

may at this stage address the merits of Lave’s contention. Dunn v. Cockrell, 302 F.3d 491, 492 (5th
13

Cir. 2002) (holding that a COA is only required when the petitioner is appealing “from the merits of

his habeas petition”). 

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a petitioner has one

year from the date the Supreme Court announces a new retroactive constitutional rule to challenge

his conviction based on this new rule. 28 U.S.C. § 2244(d)(1)(C). Recently, the Texas Court of

Criminal Appeals announced that it would consider a successive state habeas petition if any

concurrent federal proceedings are stayed pending completion ofstate proceedings. Ex parte Soffar,

143 S.W.3d 804 (Tex.Crim.App.2004). The court reasoned that the change was necessary in order

to address “[t]he problematic situation [] when the Supreme Court announces a ‘watershed’

procedural or substantive change in the law which applies retroactively to all cases, even those on

collateralreview.” Id. at 806. Accordingly, Lave’s contention turns on whether Crawford announces

a retroactive “watershed proceduralorsubstantive change in the law.” Since we have already granted

a COA on thisissue, we abstain fromaddressing this matter until after this court hasresolved whether

Crawford has created a new watershed rule that applies retroactively to Lave’s conviction.

III

For the forgoing reasons, Lave’smotion for a COA asto whether his SixthAmendment rights

were violated under the Confrontation Clause is granted. His petition for a COA on all other issues

is denied. We abstain from ruling on whether the district court abused its discretion by not allowing

Lave to amend his federal habeas petition or to return to state court, until we have addressed the

retroactivity of Crawford.