In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2825

ELLIOT D. RAY,

Petitioner-Appellant,

v.

ANA BOATWRIGHT,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 1:07-cv-00190-WCG—William C. Griesbach, Judge.

ARGUED NOVEMBER 5, 2009—DECIDED JANUARY 21, 2010

Before BAUER, MANION and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. Elliot Ray appeals from the

district court’s denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Because it was plain error

for the state court to admit the co-actors’ statements

through the police detective’s testimony at trial,

violating Ray’s right of confrontation, we reverse and

remand.
2 No. 08-2825

I. BACKGROUND

Ray was one of several gunmen charged in

Wisconsin state court for a retaliatory shooting in which

Rita Martinez, an eleven-year-old girl, was killed, and

two people were injured on 29th Street in Milwaukee,

Wisconsin. Ray claims that on the night of the shooting,

he changed his mind about accompanying his friends to

29th Street, told his friends that he was not going with

them, and returned to his friend’s house on 33rd Street.

Ray maintains that he learned that Martinez had been

shot near 29th Street from a television news report.

At trial, the State called Detective Daniel Phillips to

testify about the homicide investigation and his

interview with Ray at the police station. The detective

testified about Ray’s signed statement that was written

toward the end of Ray’s interview, where Ray talked

about the night of shootings at issue, as well as the

events that transpired the night before the shootings.

Ray’s App. at 642. In testifying, the detective primarily

read from Ray’s statement, including the portion where

he told Ray that two of his co-actors’ had made statements to implicate Ray in the shootings. We note that the

detective testifying to the statements made by others

(other than the defendant) is inadmissible hearsay. The

detective testified as follows:

Ray states that he too then began walking from 33rd

Street to 29th Street to go shoot along with the rest of

them, but Ray states when he got to North Avenue

he thought “fuck it” and turned around and went

back to [his friend’s] house.
No. 08-2825 3

Ray was then confronted with numerous statements

made by co-actors that they were present shooting on

29th Street and so was Ray.

Ray then stated “those stupid niggers shouldn’t be

talking and they can’t talk for me.”

When confronted with statements by [Miriam Myles] that

Ray was shooting a nine-millimeter on 29th Street [and] in

a statement by Sylvester Townsend . . . that Ray had a .45-

caliber pistol[,] Ray then said “tell me which gun killed

the girl and I’ll tell you everything.” 

Ray’s App. at 653. (Emphasis added.)

Ray’s attorney did not object to the detective’s testimony

regarding the above-referenced statements. Neither

Miriam Myles nor Sylvester Townsend testified at trial.

A jury returned guilty verdicts for one count of firstdegree reckless homicide, party to a crime, and two

counts of first-degree recklessly endangering safety.

Ray’s App. at 38. He was also convicted of being a felon

in possession of a firearm. Id.

On direct appeal, Ray raised five issues, including a

claim that his confrontation clause rights were violated

when the detective was allowed to testify regarding

statements made by Ray’s co-actors, when those coactors were not witnesses at trial. The state appellate

court ignored this issue and solely focused on whether

there was a hearsay violation, despite the detective

using the phrase, “Ray was then confronted” in his testimony. The state appellate court concluded that the detective’s references to the co-actors’s statements were not
4 No. 08-2825

hearsay because they were not offered to prove “the

truth of the matter” contained in the statements but

rather “to show Ray’s reaction to his co-actors’ statements

placing him at the scene, shooting a gun—a reaction

implicating him in the revenge-seeking conspiracy.” Ray’s

App. at 40-42. The state supreme court denied Ray’s

petition for review.

Ray then sought post-conviction relief in state court

under Wis. Stat. § 974.06. He was denied relief. Ray’s

App. at 95.

Ray filed two separate pro se petitions for writ of habeas

corpus in the federal district court. The district court

denied both of Ray’s petitions pursuant to Rule 4 of the

Rules Governing Section 2254 Cases, finding that he

set forth no cognizable constitutional or federal law

claims. Ray’s App. at 51-58, 94-100. Thereafter, the district

court granted Ray’s request for a certificate of appealability

to address whether the trial court’s admission of the

statements by non-testifying co-actors through the testimony of the detective ran afoul of the confrontation clause.

II. DISCUSSION

Under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), an application for a writ of

habeas corpus may not be granted unless adjudication of

the claim in state court “resulted in a decision that 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.
No. 08-2825 5

§ 2254(d)(1). “[S]tate-court judgments must be upheld

unless, after the closest examination of the state-court

judgment, a federal court is firmly convinced that a

federal constitutional right has been violated.” Williams

v. Taylor, 529 U.S. 362, 388 (2000).

The Government seeks to frame the issue in this case

as one involving the hearsay rule; it is not. While there is

a hearsay violation as noted above, the issue involves

the violation of the Sixth Amendment of the Constitution which says that: “The accused shall enjoy the right . . .

to be confronted with the witnesses against him . . . .”

The Supreme Court has held that the guarantee, which

is extended against the states by the Fourteenth Amendment, includes the right to cross-examine witnesses. See

Pointer v. Texas, 380 U.S. 400, 404 (1965). And this fundamental constitutional right is quite properly an almost

total ban on the introduction of accusations against the

accused by persons not present for cross-examination.

A. Whether There Was A Confrontation Clause Issue

The first issue we must address is whether the

detective’s testimony concerning the statements made

by the co-actors violated Ray’s right of confrontation. The

government contends that the co-actors’ statements

were used “not as substantive evidence of Ray’s guilt,

but instead to ‘give the context of’ Ray’s reaction to

those statements.” Appellee’s Brief at 22. Because the

statements were not hearsay, the government maintains

that they do not run afoul of the confrontation clause. Id.

at 23. The government likens this case to both Tennessee
6 No. 08-2825

v. Street, 471 U.S. 409, 417 (1985) and Lee v. McCaughtry,

892 F.3d 1318, 1325 (7th Cir. 1990). In Street, the

Supreme Court held that there was no confrontation

clause violation when the State introduced the co-actor’s

confession, because it was introduced for the non-hearsay

purpose of rebutting the defendant’s testimony that his

own confession was a coerced “copy” of the co-actor’s

statement. 471 U.S. at 417. In Lee, we held that there was

no confrontation clause violation in admitting into evidence a tape recording that included the state’s

attorney’s narration of the accomplice’s accusation in

the recorded interview with the defendant, because it

was used to place into context for the jury the metamorphosis of the defendant’s accounts of events, i.e., that

the defendant changed his story after hearing the accomplice’s accusation. 892 F.3d at 1325.

The government maintains that the state court’s conclusion that the co-actors’ statements were introduced to

give context to Ray’s reaction to them (i.e., a guilty reaction), not to show their underlying truth, is a reasonable

conclusion and a reasonable application of federal law.

Id. at 24.

We disagree. The confrontation clause has been invoked

to prevent, even in a joint trial, the admission of a confession by a co-defendant that implicates the other

accused, even if the trial judge provides a limiting instruction. See Bruton v. United States, 391 U.S. 123, 127-28 (1968).

While the method of presentation of the accusations in

this case shows lively imagination on the part of the

prosecution, it nevertheless runs afoul of the United
No. 08-2825 7

States Constitution. Here, the evidence presented by the

prosecution delivered to the jury statements by named coactors, not available for cross-examination, accusing Ray

of the very crimes with which he stood charged.

However cleverly presented, the evidence was a clear

violation of Ray’s constitutional right of confrontation.

While the government asserts that “a number of witnesses

placed Ray among the group of people involved in the

shooting” (Appellee’s Brief at 5-6), none of these witnesses

could place Ray at the scene of the shootings, with a

weapon in his hand. To accept the government’s position

that the statements were offered only to create the

setting for Ray’s response, and therefore admissible,

would set the stage to eliminate, in most cases, the confrontation right “enjoyed by the accused.”

Street is factually distinguishable because there, the coactors’ confession was introduced in rebuttal to refute the

defendant’s claim of coercion, where here, the detective

testified to the co-actors’ statements during the State’s

case-in-chief. The court in Street also instructed the jury

that the co-actor’s statement was to “be considered by you

for rebutable [sic] purposes only, and you are not to

consider the truthfulness of the statement in any way

whatsoever.” Id. at 512. The court in this case issued no

limiting instruction.

Lee is also distinguishable because we do not find that

Ray changed his version of events after hearing the accusations of the co-actors. Further, the trial court in Lee also

provided a limiting instruction whereas none was provided here.
8 No. 08-2825

We find that the detective testifying to the co-actors’

statements proved far more than any reaction that Ray had

during his interview. Ray did not have the opportunity

to cross-examine these co-actors at trial. Accordingly,

these statements violated Ray’s right of confrontation.

B. Whether These Statements Were Admissible

Under Roberts And Lilly

Because Ray’s conviction was finalized before Crawford

v. Washington, 541 U.S. 36 (2004), was decided, Ray’s

confrontation clause claim should be analyzed “according

to Roberts and Lilly, the clearly established Supreme

Court precedent at the time of the state court decisions.”

Bintz v. Bertrand, 403 F.3d 859, 867 (7th Cir. 2005). Under

these cases, the veracity of statements from non-testifying

witnesses is sufficiently dependable to allow the untested

admission of such statements against an accused at trial

when (1) “the evidence falls within a firmly rooted

hearsay exception” or (2) it contains “particularized

guarantees of trustworthiness” such that adversarial

testing would be expected to add little, if anything, to the

statements’ reliability. Ohio v. Roberts, 448 U.S. 56, 65-66

(1980); Lilly v. Virginia, 527 U.S. 116, 124-25 (1999).

The government does not argue, nor do we find, that

these statements fall within a hearsay exception.

Additionally, the government does not argue that these

statements contain particularized guarantees of trustworthiness. As this Court interprets the reasoning of the

plurality in Lilly, these guarantees of trustworthiness
No. 08-2825 9

“must be inherent in the circumstances of the testimony

itself; the fact that other evidence corroborates the testimony in question does not suffice.” United States v.

Castelan, 219 F.3d 690, 695 (7th Cir. 2000). There is a

presumption of unreliability that attaches to a co-defendant’s confession, see Lee v. Illinois, 476 U.S. 530, 543 (1986),

“[i]t is highly unlikely that the presumptive unreliability

that attaches to accomplices’ confessions that shift or

spread blame can be effectively rebutted when . . . the

government is involved in the statements’ production,

and when the statements describe past events and

have not been subjected to adversarial testing.” Lilly, 527

U.S. at 137.

Here, the co-actor’s statements neither fall “within a

firmly rooted hearsay exception”, nor do they contain

“particularized guarantees of trustworthiness.” Therefore,

these statements were inadmissible. See Ohio v. Roberts,

448 U.S. at 65-66; Lilly, 527 U.S. at 124-25.

C. Whether It Was Plain Error To Admit These Statements

Ray concedes that no objection was made when the

detective testified to the co-actors’ statements and that,

as a consequence, our review is limited to plain error. See

Fed. R. Crim. P. 52(b); United States v. Hodges, 315 F.3d

794, 800 (7th Cir. 2003). Under the plain error standard,

“we must decide (1) whether there was an error at all,

(2) whether it was plain, (3) whether it affected the defendant’s substantial rights, and (4) whether (if the first
10 No. 08-2825

three factors are present) it seriously affected the

fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Hawk, 434 F.3d 959, 962

(7th Cir. 2006). The focus of the prejudice inquiry in

determining whether the confrontation right has been

violated must be on the particular witness, not on the

outcome of the entire trial. Delaware v. Van Arsdall, 475

U.S. 673, 680 (1986). A new trial is warranted if the error

had a substantial and injurious effect or influence on

determining the jury verdict. Bintz, 403 F.3d at 869.

Here, the error in admitting statements by nontestifying co-actors was plain. Ray’s substantial rights

were affected because he was not able to cross-examine

the only witnesses who directly implicated him to being

at the scene of the shooting with a weapon in his hand,

and who directly refuted Ray’s claim that he had withdrawn from the conspiracy at issue. We find this confrontation clause violation seriously affected the fairness of the

judicial proceedings and reverse the district court’s

opinion.

D. Whether Ray’s Petition Was Timely

The government alternatively argues that Ray’s habeas

petition should be barred because it was untimely. Under

the rules governing AEDPA, a petitioner has one year

in which to file a petition for writ of habeas corpus, to

begin running “on the date of which the judgment

became final by the conclusion of direct review or expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). The one-year period is tolled
No. 08-2825 11

during a properly filed post-conviction petition in

state court. See 28 U.S.C. § 2244(d)(2). Accordingly, Ray

had until September 9, 2004 in which to file his petition.

The government maintains that Ray failed to provide

documentation that he had originally filed his state postconviction motion in a timely manner, and discredits

Ray’s assertion that the Oklahoma prison in which he

was housed misplaced the timely-filed motion.

There is no evidence in the record to support the government’s assertions. However, this is largely due to

the fact that the district court dismissed Ray’s petition on

the merits before giving the government an opportunity

to answer the petition and develop the record. The

record currently reflects that Ray served a copy of his pro

se post-conviction petition to prison officials on April 27,

2004. Ray’s App. at 32, 36. Correspondence between

Ray and prison officials alternatively indicate that Ray

filed his motion on April 29, 2004. Ray’s App. at 32, 34-35,

37. Despite the disparity in the date, these documents

provide support for Ray’s assertion that he filed his postconviction petition in a timely manner. However, the

government has not yet had a chance to challenge

whether the documents Ray placed into the record are

authentic; whether the state court petition was ever

received by prison officials; whether the papers Ray

filed were sufficient under state law to petition for postconviction relief; or whether the individual to whom

Ray allegedly gave his petition was a proper prison

authority. Accordingly, we remand this case to the

district court so that the government may have an opportunity to develop the record on this issue. If, after
12 No. 08-2825

the record is fully developed, Ray’s petition is determined to be timely, this Court directs the district court

to grant the petition for writ of habeas corpus unless

the State chooses to retry Ray within 120 days.

III. CONCLUSION

For the reasons stated above, we REVERSE the district

court and REMAND the case for further proceedings

not inconsistent with this opinion.

1-21-10