IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30709

BRUCE TAYLOR 

Petitioner - Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

Respondent - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges. 

SOUTHWICK, Circuit Judge:

Warden Burl Cain appeals the district court’s grant of habeas relief to

inmate Bruce Taylor. We affirm.

FACTUAL BACKGROUND AND STATE CONVICTION 

Bruce Taylor was convicted by a jury of second-degree murder of Leroy

Batiste and sentenced to life in prison without parole. See generally State v.

Taylor, No. 2002-KA-0385, slip op. at 1-9 (La. Ct. App. 2002).

In New Orleans on May 4, 2001, Leroy Batiste was shot in the leg. After

an investigation, Anthony and Alfred Moliere – Petitioner Taylor’s brothers –

were arrested in connection with the shooting. They were released after the next

United States Court of Appeals

Fifth Circuit

F I L E D

October 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-30709

2

shooting we describe. Batiste’s mother testified that animosity existed between

the Molieres and her son because of a dispute over a borrowed screwdriver.

Ten days after Batiste was wounded, New Orleans police again answered

a call about a shooting. Leroy Batiste was found unresponsive and bleeding,

having sustained six gunshot wounds. At least two of the gunshot wounds were

fatal, causing Batiste to die of “spinal cord shock.” 

DetectiveFred Bates investigated the homicide. By the time Bates arrived

on the scene, the victim had been taken to the hospital. The victim’s vehicle had

three bullet holes in it from the shooting ten days before. Seven .380 caliber

cartridge casings, made by two different manufacturers, were recovered at the

scene. An eighth casing was discovered the next day.

While at the scene the day after the murder, Bates said a citizen slipped

him a note indicating he wanted to talk with the officer – elsewhere. Bates

spoke with that person several blocks from the scene. Due to hearsay objections,

testimony on what Bates was told was minimal and elliptical. We do know that,

based on the conversation with the individual, Bates developed Bruce Taylor as

a suspect and prepared a photo lineup. Bates’s testimony about this witness,

unnamed and of course not cross-examined, is the claimed error in this case.

According to Bates, another witness to the crime, Osborne Parker, also

came forward. Parker identified Taylor by name, saying he had grown up with

him. Bates showed Parker the photo lineup he had prepared, and Parker

immediately selected Taylor’s photo. A search of Taylor’s home did not yield any

weapons or clothing connected to the case. 

Attrial,Parker testified that he once lived near both Taylor and the victim

Batiste. He had known Taylor almost his entire life, but they were not close

friends. Batiste had not been a good friend, either. According to Parker, on the

night of the murder, he saw Taylor sitting in his doorway. Parker was looking

for his friend Keyoka Riley. He asked Taylor if he had seen her. Taylor replied
No. 07-30709

3

that he had not seen her, and then told Parker that “I’m just kind of messed up,”

“I’m just kind of fu---- up right now in the head.” 

Parker found Keyoka Riley, and they walked to a store across the highway.

On the way back, Parker heard gunshots. He looked towards the sounds and

saw someone standing over the victim and shooting. The shooter ran through

a cut in the apartment complex, but he was not running towards Taylor’s

apartment, which was perhaps two apartment buildings away from the scene of

the shooting. Parker said he went to his own apartment immediately after the

shooting to telephone the police, then went back to comfort the victim, who was

still conscious. 

Parker described the perpetrator as wearing the same clothing that he had

just seen the Defendant wearing – black jeans and a dark shirt, with a bandana

around his neck. He admitted that he did not immediately recognize the

Defendant. Twenty minutes after the shooting, Parker saw Taylor again. It

was at that time that he “thought about it,” i.e., that the shooter might have

been Taylor. By this time, Taylor was wearing a white shirt and shorts. Taylor

said he had been in the shower at the time of the shooting. Parker felt that

Taylor’s shower explanation seemed contrived. In light of what had happened

between Batiste and the Defendant’s brothers, he thought Taylor was lying. 

Parker conceded on cross examination that the shooter only “basically”

looked like the Defendant. When asked whether that meant the shooter looked

like the Defendant, was “similar” to him, “could have been” him, or “maybe” was

him, Parker replied “[a]ll of that.” When pushed as to how definite he was,

Parker said that “it was him.” Defense counsel pointed out that “basically” did

not mean “it was him,” to which Parker responded, “okay.” 

Although Parker gave his name to police when he called 911 immediately

after the shooting, he spoke to no officers at the scene. He told no one that night

that Taylor was the shooter. Parker testified on redirect examination that he
No. 07-30709

4

did not contact Detective Bates immediately because he did not want to get

involved and because he felt that the police would solve the crime, considering

the “feuding” between Bruce Taylor’s brothers and the victim. 

Parker admitted that the district attorney’s office gave him money to rent

a house. He denied that was why he got involved in the case. Parker stated that

he did not want to get involved in the first place. He emphasized that he had

seen the victim dying on the ground and that it had greatly disturbed him. That

experience is what prompted his action. 

At the time of the shooting, Osborne Parker lived with Keyoka Riley in

Riley’s mother’s apartment. Riley confirmed Parker’s testimony that they had

gone to the store and heard shots on their way back. Riley stated that Parker

ran into their apartment, entered before her, and held the door open for her to

bring in her daughter. But Riley testified that she did not see anyone shooting

and did not believe Parker could have seen anything from where they were. She

also stated that if Parker had seen a person, he could not have made an

identification because of darkness. She said that Parker never told her that he

saw Bruce Taylor shoot the victim, despite the fact that they generally talked

about everything. Significantly, Riley also indicated that she did not think it

was a good idea for Parker to testify. In addition, Parker testified on rebuttal

that Riley told him that she was going to testify for the defense because she did

not want anything to happen to Parker.

Taylor lived in an apartment with his parents and his two brothers. His

parents and fiancée testified as alibi witnesses. These witnesses supported

Taylor’s explanation that he had been in the shower when they learned from

someone else about the shooting. Testimony varied about how long a witness

could confirm Taylor was in the apartment,though one witness said he had been

there from a time long before the shooting.

A jury convicted Taylor of second-degree murder. He was sentenced to life
No. 07-30709

5

in prison without parole. The Louisiana Court of Appeal affirmed, and the

Louisiana Supreme Court denied his writ applications. 

POST-CONVICTION PROCEEDINGS

Taylor filed an application for state postconviction relief, which was

denied. His subsequent applications to the state intermediate court and

supreme court for supervisory writs and review were denied.

Having pursued relief in the Louisiana state courts, Taylor turned to

federal court on March 28, 2006, when he filed a habeas petition pursuant to 28

U.S.C. § 2254. Taylor raised several claims, including that “the [trial court]

erred in allowing the State to admit and argue as substantive evidence the

hearsay statements of eyewitnesses.” Taylor’s hearsay claim is based on

Detective Bates’s testimony about the mystery witness who slipped him a note

at the scene. A hearsay objection was made to the questioning, but it was

rejected. This is the relevant part of Detective Bates’s testimony:

A. . . . I did receive a note saying that someone wanted to speak to

me. The person did not want to talk to me on the scene due to the

fact that, again, this is a scatter site area where everybody knows

everybody and to be seen talking to the police in some instances is

not – not kosher in the neighborhood. So I got in my vehicle, went

approximately three to four blocks away from the area where I could

not be seen, had a conversation with an individual and during this

conversation, learned some information. I took this information that

I learned and from that information was able to develop a suspect.

Q. And Detective, as per this end of your investigation, what was

the name of your suspect?

A. First name only was Bruce. The description given was he is

one of the brothers of the Molieres. . . .

A . . . This description that I got . . . was only the fact that the

perpetrator was Bruce . . . .

In addition to the testimony, error is also alleged in referring to the

testimony in the prosecutor’s rebuttal argument. The prosecutor was responding
No. 07-30709

6

to a defense argument that there was no corroboration of Osborne Parker’s

arguably inconclusive identification of Taylor as the assailant:

Prosecutor: Now, corroboration? You want corroboration? [Defense

counsel] seems to forget one little detail in the investigation of this

case. Detective Bates told you that he spoke to several people . . .

within the days following– 

Def. counsel: I’m gonna object if he’s gonna be talking about what

anybody said to this officer that’s not here today. 

Court: He has a right to make his argument, Mr. Meyer. I do not

know what he’s going to say. . . . All right, proceed.

Prosecutor: Detective Bates spoke to three people before he even

spoke to Osborne Parker. He began his investigation. He posted up

his cards. He did everything that he sat here and explained all very

frankly to you what he did. What we forget and what’s easy to

overlook is that Detective Bates developed the name of a suspect

before he had any idea who Osborne Parker was. He had the name

Bruce Taylor already. . . . In this case we had a suspect and it was

corroborated by Osborne Parker.

The defense objected again and was again overruled.

The State filed an answer to the habeas petition, addressing Taylor’s

claims on the merits and specifically noting that “[r]eview of the record shows

that these issues are exhausted.” The admission about exhaustion was limited

to the Defendant’s arguments based solely on hearsay issues, not to exhausting

a constitutional challenge based on the Confrontation Clause.

The magistrate judge recommended that Taylor’s claims be rejected and

that the petition be dismissed. With regard to Taylor’s hearsay evidence claim,

the magistrate judge noted that, although federal habeas relief is not available

to correct state evidentiary errors, Taylor’s claim implicated his Sixth

Amendment rights under the Confrontation Clause. The “implication” was

something first raised in this case by the magistrate, who nonetheless concluded

that Taylor had not met the Section 2254(d)(1) requirement that relief only be
No. 07-30709

7

granted “if petitioner demonstrates thatthe state court decision was contrary to,

or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court.” The magistrate judge did not conclude that

the trial court’s error was a critical or significant enough factor in the course of

the entire trial to warrant habeas relief.

The district court adopted the magistrate judge’s report and

recommendation, “except with respect to the recommendation on Petitioner’s

claim regarding the admission of hearsay evidence.” The district court concluded

thatthe hearsay evidence presented by Detective Bates was crucial to the State’s

conviction. The court noted that no physical evidence linked Taylor to the crime,

and that Parker’s testimony “was equivocal at best.” Accordingly, the court

found that Taylor’s Sixth Amendment Confrontation Clause rights were clearly

violated, and that the admission of the hearsay evidence was not harmless,

resulting in a fundamentally unfair trial. Accordingly, the court granted

Taylor’s habeas petition. 

The State moved for an amendment or alteration of the judgment.

Included was an argument that, because Taylor had not raised a Confrontation

Clause or any other federal constitutional claim in state court,those claims were

unexhausted. The district court denied the motion without explanation. 

The State timely appealed the judgment to this Court. 

DISCUSSION

Our review occurs in two steps. First, we analyze the issues that arise

from the need to present, i.e., “exhaust,” claims in state court first. Finding no

bar to proceeding, we then examine the merits of the constitutional issue.

A. Exhaustion

This case presents both the question of whether Taylor has properly

exhausted his claim and also the analytically prior question of whether the State

waived or forfeited the exhaustion requirement. 
No. 07-30709

8

Exhaustion is a statutory obligation on petitioners who seek federal

habeas relief to present and pursue all claims in state court prior to requesting

federal collateral relief. 28 U.S.C. § 2254(b). Even when the inmate presents to

the state court all the relevant facts and makes a related state-law claim, there

is no exhaustion unless he “asserts the claim in terms so particular as to call to

mind a specific right protected by the [federal] Constitution or alleges a pattern

of facts thatis well within the mainstream of constitutional litigation.” Kittelson

v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005) (quotations and citation omitted).

This means that a petitioner must alert the state courts to the “federal nature”

of the claim. Baldwin v. Reese, 541 U.S. 27, 33 (2004).

An issue, such as exhaustion, that an appellant could raise to justify

reversal may be waived. We recognize that the term “waiver” may mean

different things in the context of procedural exhaustion. The State may fail to

raise the non-exhaustion defense; the State may instead expressly waive any

challenge on exhaustion grounds by conceding that the petitioner exhausted the

claims in state court. The second type is not at issue here, even though the State

in its habeas response initially conceded that Taylor had exhausted. We do not

find an express waiver because the State was conceding exhaustion only as to

the “alleged introduction of inadmissible hearsay testimony,” which was the

claim Taylor made before the Louisiana state courts and in his federal habeas

petition. The State has not expressly waived exhaustion as to Taylor’s

Confrontation Clause claim. In fact, it raised the defense in a motion after the

district court had recast Taylor’s claim as a Confrontation Clause issue.

As to waiver by a party’s failure to raise an issue, it is important that

Congress provided that a state shall not be deemed to have made an implicit

waiver of an inmate’s obligation to exhaust or be estopped from asserting such

a defect; waiver of the exhaustion requirement must be expressly made by

counsel. 28 U.S.C. § 2254(b)(3). 
No. 07-30709

1 Taylor did not challenge the relevant testimony in any way in state habeas

proceedings, but a presentation in state habeas is not a component of exhaustion if the issue

was presented on the direct appeal. Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2001).

9

Considering the importance of exhaustion in the statutory scheme for postconviction relief in federal court from a state inmate’s conviction, and in light of

the briefing that has been presented on the issue after oral argument, we

conclude that there has been no waiver.

The relevant exhaustion inquiry is whether Taylor fairly presented the

federal constitutional issue to the state courts on direct appeal.1 This court

reviews de novo the legal question whether a federal habeas petitioner has

exhausted his claims. Morris v. Dretke, 413 F.3d 490, 491 (5th Cir. 2005). 

The argument that Taylor did not raise a federal constitutional claim is a

reasonable one. Taylor’s filings in the state court never explicitly mention the

federal Constitution. His brief before the Louisiana Court of Appeal framed the

claim in hearsay terms: “The Trial Court erred in allowing the State to admit

and argue as substantive evidence the hearsay statements of eyewitnesses.”

Taylor cited the state’s evidentiary code and state cases in support. 

While Taylor did not label his claim as a federal constitutional one, his

brief made the type of arguments that support a Confrontation Clause claim.

Taylor complained that the prosecution relied heavily on hearsay testimony to

corroborate Osborne Parker’s hesitant identification, arguing “[i]n effect, the

State received the benefit of eyewitness testimony corroborating Parker’s story,

without the danger of cross-examination and impeachment.” Further, Taylor

cited a passage from a Louisiana Supreme Court case criticizing the use of

“explanation of the officer’s actions” as a hearsay exception to allow admittance

of “an out-of-court declaration when the so-called ‘explanation’ involves a direct

assertion of criminal activity against the accused.” State v. Hearold, 603 So. 2d

731, 737-38 (La. 1992). “Law enforcement officers may not testify as to the

contents of an informant’s tip because such testimony violates the accused’s
No. 07-30709

10

constitutional right to confront and cross-examine his accusers.” Id. at 737

(emphasis added) (citing State v. Banks, 439 So. 2d 407, 410 (La. 1983), in which

the court concluded that such hearsay violated both the Louisiana and federal

Constitutions). In addition, Taylor cited a Louisiana Supreme Court case

explicitly connecting the error in allowing such hearsay testimony to an

accused’s federal Confrontation Clause rights. State v. Wille, 559 So. 2d 1321,

1329-30 (La. 1990).

Taylor’s failure to frame the claim in constitutional terms makes

exhaustion less than clear. However, this court has before looked to the content

of the cases cited in the state court filings in order to determine whether a claim

was “fairly presented.” See Kittelson, 426 F.3d at 317. Doing so here suggests

that the nature of Taylor’s challenge was more sweeping than simply opposing

a state-law evidentiary ruling. Such an understanding is consistent with the

Louisiana intermediate court’s reliance on a precedent in which the defendant

claimed that “the detective’s testimony circumvented the hearsay rule and

deprived [the defendant] of the right to confront and cross-examine the absent

informant/accuser.” State v. Dangerfield, 816 So. 2d 885, 900 (La. Ct. App.

2002). The Dangerfield courtinterpreted a similarly made challenge to the same

kind of hearsay evidence as raising a federal Confrontation Clause claim. Id.

The Louisiana Court of Appeal here did not explicitly indicate that it was

evaluating a federal Confrontation Clause claim, but its use of Dangerfield is a

signal that it found more to be involved than a hearsay claim. We conclude that

Taylor adequately exhausted his claims in state court. 

B. Merits of Taylor’s habeas petition

1. The AEDPA standard

This court has “no authority to grant habeas corpus relief simply because

we conclude, in our independent judgment, that a state supreme court’s

application of [federal law] is erroneous or incorrect.” Martinez v. Dretke, 404
No. 07-30709

11

F.3d 878, 884 (5th Cir. 2005). Instead, under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), a federal court is restricted in granting

a petition for a writ of habeas corpus:

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim:

(1) 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. § 2254.

Under the “contrary to” clause of Section (d)(1), a federal court may only

grant habeas relief if the state court decided a case differently than the United

States Supreme Court previously decided a case on a set of nearly identicalfacts.

Under the “unreasonable application” clause, a court may grant habeas relief if

the state court misapplied the relevant legal principles to the facts. See

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). As there is no United States

Supreme Court case with nearly identical facts to this one, this case is governed

by the “unreasonable application” prong of Section 2254(d). 

2. Unreasonable application of clearly established federal law

The necessary inquiry is whether the Louisiana Court of Appeal

unreasonably applied clearly established federal law as determined by the

United States Supreme Court when it denied relief to Taylor. That court

analyzed whether there was error in admitting Detective Bates’s testimony

about the unidentified witness, as well as the prosecution’s references to that

testimony in closing argument. However, the state appellate court did not

resolve whether the trial court committed constitutional error in this regard.

Instead, it merely concluded that any error was harmless.
No. 07-30709

2 The Crawford court would reject Roberts on the ground that it did not sufficiently

protect Confrontation Clause rights. See Crawford, 541 U.S. at 63 (“The unpardonable vice

of the Roberts test . . . is its demonstrated capacity to admit core testimonial statements that

the Confrontation Clause plainly meant to exclude.”)

12

Even though the Louisiana Court of Appeal only answered the harmless

error question,this court mustfirst consider whether the admission of Detective

Bates’s testimony was an “unreasonable application” of federal law. AEDPA

deference is due to state court decisions, even when the state court does not

explicitly address the relevantissue. See Schaetzle v. Cockrell, 343F.3d 440, 443

(5th Cir. 2003) (“Because a federal habeas court only reviews the reasonableness

of the state court’s ultimate decision, the AEDPA inquiry is not altered when .

. . state habeas relief is denied without an opinion.”). Accordingly, AEDPA

deference extends to the preliminary question of whether there was legal error,

in addition to questions of the harmlessness of error.

We now turn to the issue of legal error. Under the Sixth Amendment, a

criminal defendant has the right “to be confronted with the witnesses against

him.” Coy v. Iowa, 487 U.S. 1012, 1015 (1988). The Confrontation Clause

generally bars witnesses from reporting the out-of-court statements of

nontestifying declarants. See Crawford v. Washington, 541 U.S. 36, 54-56

(2004). Crawford was decided after the completion of Taylor’s direct appeal. But

even under the Supreme Court’s earlier decisions, the Confrontation Clause

generally barred the admission of statements made by out-of-court declarants

for the truth of the matter asserted.2 Ohio v. Roberts, 448 U.S. 56, 65 (1980).

The only exception was when the declarant’s statement fell into a “firmly rooted

hearsay exception” or when there was a showing that the statement bore

“particularized guarantees of trustworthiness.” Id. at 66. This exception

assumed the declarant was legitimately unavailable to testify after “the

prosecutorial authorities [] made a good-faith effort to obtain his presence at

trial.” Id. at 74.
No. 07-30709

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Detective Bates testified about highly incriminating information from the

unidentified eyewitness. The prosecution’s reference to that testimony in closing

argument reinforced it. There was no hearsay exception, firmly rooted or

otherwise, and Taylor was denied his right to confront the witness.

Police officers cannot,through their trialtestimony, refer to the substance

of statements given to them by nontestifying witnesses in the course of their

investigation, when those statements inculpate the defendant. When the

statement from an out-of-court witness is offered for its truth, constitutional

error can arise. This principle is well established. See 2 CHARLES T.

MCCORMICK, MCCORMICK ON EVIDENCE § 249, at 104 (4th ed. 1992); see also

United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (“Allowing agents to

narrate the course of their investigations, and thus spread before juries damning

information that is not subject to cross-examination . . . would eviscerate the

constitutional rightto confront and cross-examine one’s accusers.”) This Circuit

has applied this analysis. See, e.g., United States v. Hernandez, 750 F.2d 1256,

1257-58 (5th Cir. 1985) (inadmissible hearsay for a DEA agent to testify that

“[w]e received a referral by the U.S. Customs as [defendant] being a drug

smuggler”); United States v. Kang, 934 F.2d 621, 627 (5th Cir. 1991) (similar).

Louisiana state courts have recognized this principle. See, e.g., Hearold,

603 So. 2d at 737 (“Law enforcement officers may not testify as to the contents

of an informant’s tip because such testimony violates the accused’s constitutional

right to confront and cross-examine his accusers.”)

Applying this understanding, it is apparent that Detective Bates’s

testimony indicating that an unidentified, nontestifying witness identified the

defendant as “the perpetrator,” along with the prosecution’s references to that

testimony in closing argument, was hearsay. Under Ohio v. Roberts, the

admission of such hearsay statements against a criminal defendant violates the

Confrontation Clause, unless the declarant’s statement either falls within a
No. 07-30709

14

firmly rooted hearsay exception or bears particularized guarantees of

trustworthiness. Neither of those bases was affirmatively shown, nor is either

established by the record. Accordingly, the admission of this testimony against

Taylor was a violation of Roberts, which was clearly established Supreme Court

precedent at the time of Taylor’s trial.

Even under the deference required by Section 2254(d), which limits us to

deciding whether any implicit rejection of Taylor’s argument was an

unreasonable application of federal law, we find there to be error. Unless the

error may be considered harmless, relief is justified.

3. Harmless error

The final question is whether the error committed by the Louisiana courts

was harmless and therefore not a basis for relief. On habeas review under

AEDPA, the prejudice of constitutional error in a state-court criminal trial is

measured by the “substantial and injurious effect” standard of Brecht v.

Abrahamson, 507 U.S. 619 (1993). See, e.g., Hughes v. Quarterman, 530 F.3d

336, 345 (5th Cir. 2008). The Louisiana appellate court has already measured

the harmfulness of the trial court’s decision and found reversal not to be

required. We decide whether, in reaching that conclusion, the state court

applied harmless error analysis in an “objectively unreasonable” manner. Id.

The Louisiana trial court’s decision to permit references to the testimony

of the unidentified eyewitness is sufficiently prejudicial if it had a “substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht, 507

U.S. at 623. There are guideposts in applying the standard to the facts of a

given case. When a court finds itself “in virtual equipoise as to the harmlessness

of the error under the Brecht standard, the court should treat the error as if it

affected the verdict.” Fry v. Pliler, 127 S. Ct. 2321, 2327 n.3 (2007) (citations and

quotations omitted); see also Robertson v. Cain, 324 F.3d 297, 305 (5th Cir. 2003)

(“[T]he petitioner should prevail whenever the record is so evenly balanced that
No. 07-30709

3

Indeed, the prosecution’s repeated references to the unidentified witness as a

corroborating source of information, were no doubt an effort to strengthen testimony that was

quite equivocal standing on its own. Examples include:

– Detective Bates on direct: “I had a conversation with an individual and during this

conversation, learned some information. . . . [F]rom that information [I] was able to

develop a suspect. . . . The description given was he is one of the brothers of the

Molieres.”

– Detective Bates on direct: “[t]his description that I got . . . was . . . that the

perpetrator was Bruce.”

– Prosecution on close, “Now, corroboration? You want corroboration? . . . Detective

Bates had developed the name of a suspect before he had any idea who Osborne Parker

was. He had the name Bruce Taylor already.”

15

a conscientious judge is in grave doubt.”). Conversely, an error is insufficient

under Brecht when the evidence of the defendant’s guilt is overwhelming. See,

e.g., Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003).

In this case, the evidence of guilt is far from overwhelming. Though

Taylor could be thought to have a motive to harm the victim, there was no

physical evidence linking him to the crime. Only a single eyewitness – Osborne

Parker – identified the defendant at the crime scene. His testimony concerning

the actual identification was markedly indefinite. Apart from Detective Bates’s

reference to the unidentified source, there was no corroboration of Parker’s

testimony. Keyoka Riley, who was with Parker throughout the time of the

shooting, did not corroborate his testimony, noted the darkness at the time, and

stated that she “couldn’t see how he could see anything.” Parker and Riley were

close friends who lived together, yet Riley testified that Parker never told her

that he had seen the defendant.3

In addition, the defendant also had several alibi witnesses. Although

there was every reason that jurors could question the credibility of these

witnesses because of their affinity for Taylor, doubts about the strength of the

affirmative evidence of innocence does not add to the limited evidence of guilt.

We find the harmfulness here at least as strong as that presented in

another recent decision. Burbank v. Cain, 535 F.3d 350 (5th Cir. 2008). In that

precedent, there was no physical evidence linking the accused to the murder;
No. 07-30709

16

only a single witness identified him as the shooter. Id. at 352. In contrast to the

present case, the identifying witness in Burbank took the stand. The defendant

was able to elicit testimony casting doubt on the witness’s credibility, including

that she had been drinking and taking drugs on the day of the killings, that she

had considered falsely testifying, that she had three prior convictions, and that

she had been recently arrested again and was facing atleastfive years in prison.

Id. at 352-53. The defense also implied that she regularly smoked crack and

that she “faced twenty to life” if she did not identify the defendant as the killer.

Id. at 353-54. Still, we granted habeas relief, citing violation of the

Confrontation Clause due to the trial court’s refusal to allow two additional

defense witnesses who would have impeached the eyewitness. Id. at 359.

In the present case, the comment attributed to the nontestifying witness

was critical, as the other evidence was not at all overwhelming. Compare

Wilkerson v. Cain, 233 F.3d 886, 891-92 (5th Cir. 2000) (habeas relief warranted

where defendant could not effectively cross-examine a witness “crucial to the

prosecution’s case”), with Burgess, 350 F.3d at 472 (harmless error where there

was “a wealth of evidence validly in the record that provided overwhelming

evidence of Burgess’s guilt”), and Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir

2003)(describing the “sea of evidence” incriminating the defendant). 

In light of the dependency of the prosecution on a single witness’s lessthan-certain identification, combined with the use of tainted hearsay evidence

both in testimony and in closing argument asserting thatthe defendant was “the

perpetrator,” we conclude that the Louisiana Court of Appeal’s holding that any

error would have been harmless was contrary to, and also an unreasonable

application of, federal law as clearly established by the United States Supreme

Court. Accordingly, Taylor is entitled to habeas relief. 

The district court judgment is AFFIRMED.