IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30174

TERRANCE JONES,

Petitioner – Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent – Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CV-939

Before REAVLEY, CLEMENT, and SOUTHWICK, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Finding that a state court unreasonably applied clearly established federal

law by holding that no Sixth Amendment violation occurred when a jury heard

recorded testimony from a deceased witness to a murder, the district court

granted the defendant’s petition for a writ of habeas corpus. We affirm the grant

of the writ but vacate the portion of the order requiring the State to dismiss the

underlying indictment if it fails to retry the defendant within 120 days.

United States Court of Appeals

Fifth Circuit

F I L E D

March 15, 2010

Charles R. Fulbruge III

Clerk

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 The underlying facts are laid out in more detail in State v. Jones, 841 So. 2d 965, 969- 1

72 (La. Ct. App. 2003) (hereinafter “Jones II”). 

2

FACTS AND PROCEEDINGS

A. Factual Background

In November 2001, a jury convicted Terrance Jones of second-degree

murder for the shooting of Marty Martin in the early morning of July 28, 1997.1

Pursuant to Louisiana’s mandatory sentencing rules, the state trial court

sentenced him to life in prison without the possibility of parole. 

Responding to a call about a shooting, a Jefferson County Sheriff’s Deputy

discovered Martin’s body in a blue Oldsmobile adjacent to James Artberry’s

house in Marrero, Louisiana. Martin had been shot once in the chest. EMS

technicians who arrived soon after found that Martin had no vital signs.

Artberry told the police he had witnessed the shooting. He gave a short

statement at the scene, including a description of the perpetrator and the

perpetrator’s car. Detective Mike Tucker then took him to the Criminal

Investigations Bureau for questioning. Artberry gave two recorded statements

to Detective Tucker. In the first, taken after 3:00 a.m., Artberry said that he had

seen Martin at around 10:00 p.m. that night at a bar in Marrero. He explained

that Martin asked him to help find a prostitute, that he agreed to do so, but that

the search was unsuccessful and the two returned to the bar. Artberry said he

walked home without Martin and later saw two black men in a Pontiac Grand

Prix with tinted windows and a yellow sticker on the back window pull up in

front of his house. He claimed to have seen one of the two men shoot Martin

over what appeared to be a drug deal gone wrong. He stated that he did not get

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3

a good look at the shooter’s face or the passenger in the shooter’s car, and that

he could not identify the shooter.

Artberry gave the second recorded statement shortly after 4:00 a.m. In it,

he acknowledged his failure to disclose some information during the first

statement, which he blamed on his fear of the shooter; he also explained that he

had been involved in the drug deal. In this version of the story, after the

unsuccessful search for a prostitute, Martin asked Artberry where he could get

crack cocaine. Artberry took Martin to a woman who flagged down the blue

Grand Prix and told the occupants that Martin wanted drugs. Martin and

Artberry followed the Grand Prix in Martin’s car and met its two black male

passengers outside Artberry’s house. Artberry stated that he saw Martin

approach the passenger window of the Grand Prix, where he received a rock of

crack cocaine and handed over some money. The passenger claimed that Martin

had given him only a one-dollar bill instead of a twenty. Martin looked in his

pockets and then went to his car and rummaged around inside it. At this point,

the passenger in the Grand Prix told the driver to “knock his fucking head off.”

After looking at Artberry and telling him that he blamed Artberry for what had

happened, the driver shot Martin twice. During this second interview, Artberry

identified the shooter as a black man named Terrance who lived on Poe Street

in Westwego. Artberry claimed to have known Terrance for several years. 

Subsequently, the police composed a photo lineup based on this

information. Artberry did not identify any of the subjects as the shooter. When

presented with a second lineup containing a picture of Jones, however, Artberry

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 The third recorded statement was also played to the jury at Jones’s trial, but the 2

record does not contain a transcript of it. 

4

picked him out as the shooter. After this identification, two detectives recorded

a third interview with Artberry at his home. 

2

Artberry testified at a suppression hearing before Jones’s first trial. He

stated that he had been able to identify the perpetrator in a photo lineup and

that the perpetrator was named “Terrance.” He identified Jones in court as the

same person he had identified in the lineup. Jones’s counsel cross-examined

Artberry about these statements but not about the recorded statements he had

given the police; Jones’s defense counsel did not learn that the recorded

statements existed until after the first trial had begun. Shortly after the

suppression hearing, and before the first trial, Artberry died of a drug overdose.

B. Procedural Background

1. First trial, mistrial, and state appeals

Jones’s first trial began in July 2000. Before the trial, he moved to exclude

Artberry’s suppression hearing testimony. The trial court denied the motion.

The state intermediate appellate court and supreme court affirmed the denial.

State v. Jones, 766 So. 2d 1261 (La. 2000) (table); see State v. Jones, 791 So. 2d

622, 624 (La. 2001) (hereinafter “Jones I”). During its direct examination of

Detective Tucker, the State sought to introduce Artberry’s first two recorded

statements. This was the first time that Jones’s defense counsel learned of their

existence. Defense counsel objected and moved for a mistrial. The trial court

reversed its pretrial suppression ruling and granted the motion. The state

intermediate appellate court affirmed. It held that, in light of the undisclosed

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statements, the defense had not had an opportunity to fully and effectively crossexamine Artberry at the suppression hearing. See Jones I, 791 So. 2d at 624. 

The Louisiana Supreme Court reversed. Though it noted “substantial

discrepancies between Artberry’s second statement to Detective Tucker and his

testimony at the suppression hearing,” the court held that Jones had a fair

opportunity to cross-examine Artberry at the suppression hearing and that

Artberry’s hearing testimony satisfied Louisiana’s hearsay exception for prior

recorded testimony. Id. at 626-28. It remanded the case for retrial.

2. Second trial and state appeals

Jones’s second trial began in November 2001. The prosecutor’s opening

statement included a narrative of the crime that relied on the recorded

statements Artberry gave to the police. The prosecutor also told the jury that

Artberry made two statements while at the police station—one in which he

denied knowing who the shooter was, and a second in which he claimed he could

identify the shooter. Jones’s defense counsel, in his opening statement,

suggested that Martin was killed after quarreling with Artberry and that

Artberry changed his story when he realized he was a suspect. 

In accordance with the state supreme court’s ruling, the State introduced

Artberry’s cross-examined testimony from the suppression hearing without

objection during its case-in-chief. The State again called Detective Tucker as a

witness. Tucker testified that he had taken three statements from Artberry on

the night of the murder and then began to testify about what Artberry had told

him. He related the substance of the first recorded statement—the one in which

Artberry said that he could not identify the shooter—without objection. When

Tucker began to testify about what Artberry told him during the second recorded

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 The district court opinion summarizes the proceedings surrounding the admission 3

of the recorded statements. See Jones v. Cain, 601 F. Supp. 2d 769, 778-82 (E.D. La. 2009)

(hereinafter “Jones III”). 

6

statement—the one inculpating Jones—defense counsel objected on hearsay

grounds. The trial court overruled the objection, explaining that Tucker could

testify about Artberry’s statements “for purposes of him relating . . . how he

conducted his investigation.” Jones’s counsel, citing the un-cross-examined

nature of the hearsay statements, moved for a mistrial. The trial court denied

the motion and allowed the State to continue its examination of Tucker. It did

not give a limiting instruction. 

The State then moved to introduce transcribed copies of Artberry’s

statements and play the recordings to the jury. Jones’s counsel again objected 3

on hearsay and Confrontation Clause grounds. The State argued that the

Louisiana Supreme Court decision on the suppression hearing allowed the

introduction of the recorded statements. It also argued that the statements

should be allowed into evidence to bolster Artberry’s credibility. The trial court

admitted the evidence. The State made use of the statements during the

remainder of its case-in-chief. It asked Tucker to explain his theory of the crime

based in part on Artberry’s statements, and Tucker’s response relied almost

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 Other witnesses for the State provided circumstantial evidence against Jones. Mary 4

Gums, Jones’s girlfriend at the time of the shooting, testified that Jones telephoned her after

the murder and asked her to give his lawyer’s phone number to a witness who lived next door

to the murder scene—viz., to Artberry. She did so; she later contacted Artberry and put him

in touch with Jones. Gums also stated that she asked Jones whether he had killed anybody,

and that he responded by saying “Don’t ask . . . no questions.” Gelandra Brue, whose

credibility as a witness was highly questionable, see Jones III, F. Supp. 2d at 807 n.29,

testified that Martin came to her house looking to buy crack on the night of the murder, but

that she turned him away. After Martin returned to her house with Artberry, she stated, she

saw Jones pull up in a blue Grand Prix with another individual, saw Jones and Artberry speak

for about ten minutes, and saw Martin and Artberry drive in the direction of Artberry’s house,

followed by the Grand Prix. Only Artberry’s recorded statements identified Jones as a drug

dealer or provided a motive for the crime. 

7

exclusively on the recorded statements. The jury convicted Jones of second- 4

degree murder. 

After he was found guilty and sentenced, Jones appealed to the state

intermediate appellate court. That court recognized that “the State primarily

used the recorded statements to bolster its case against defendant.” Jones II,

841 So. 2d at 975. It rejected the two main rationales advanced at trial for

admitting the evidence: first, that the evidence could come in as part of Tucker’s

explanation of how he investigated the crime, id. at 974, and second, that the

state supreme court’s decision about the suppression hearing testimony also

allowed the introduction of the recorded statements, id. at 975. 

The appellate court held, however, that the recorded statements could be

admitted, pursuant to Louisiana Code of Evidence article 801(D)(1)(b), “as

consistent statements intended to rebut an express or implied charge against

[Artberry] of recent fabrication or improper influence or motive.” Id. (alteration

in original) (quotation omitted). Attacks on Artberry’s motivations and

credibility in defense counsel’s opening statement and throughout the trial, the

court reasoned, “allowed the State to use Artberry’s prior recorded statements

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 After granting habeas relief, the district court appointed the Federal Public Defender 5

to represent Jones on appeal to this court. 

 The Confrontation Clause benefits Jones, a state defendant, because the Sixth 6

Amendment is incorporated against the states through the Fourteenth Amendment. See, e.g.,

Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999). 

8

as a rehabilitative measure.” Id. at 976. Louisiana Code of Evidence article

801(D)(1)(b) exempts as non-hearsay a prior statement by a declarant when

“[t]he declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is . . . [c]onsistent

with his testimony and is offered to rebut an express or implied charge against

him of recent fabrication or improper influence or motive.” The state appellate

court did not address the article’s requirement that the declarant “testif[y] at the

trial or hearing”—i.e., at the trial itself—where the declarant would be “subject

to cross-examination concerning the statement.” The Louisiana Supreme Court

affirmed without a written opinion. State v. Jones, 854 So. 2d 345 (La. 2003)

(table).

3. Habeas proceedings

Jones’s state application for post-conviction relief was denied at each level.

After exhausting his state post-conviction remedies, he filed a pro se § 2254

habeas corpus petition in the Eastern District of Louisiana. In a lengthy ruling, 5

the district court concluded that the state trial court admitted and used

Artberry’s statements for their truth, which implicated Jones’s Sixth

Amendment rights and triggered a Confrontation Clause analysis under Ohio

v. Roberts, 448 U.S. 56 (1980), the clearly established law in place at the time of

the relevant state court decision. Jones III, 601 F. Supp. 2d at 787-88, 804-06; 6

see Whorton v. Bockting, 549 U.S. 406, 416 (2007) (holding that Crawford v.

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Washington, 541 U.S. 36 (2004), did not announce a “watershed rule” of criminal

procedure such that it could be applied retroactively). The district court

concluded that the admission of the recorded statements did not bear adequate

indicia of reliability under Roberts and did not fall within a “firmly rooted

hearsay exception.” Jones III, 601 F. Supp. 2d at 805-06; see Roberts, 448 U.S.

at 66. It further concluded that the admission of the statements was not

harmless error. Jones III, 601 F. Supp. 2d at 806-08. It set aside Jones’s

conviction and sentence and ordered the State to either retry Jones within 120

days or dismiss the indictment against him. Id. at 809. 

The State appealed. It argues that the district court erred by reviewing

the state appellate court’s application of state evidence law; that the admission

of the statements did not violate Jones’s Confrontation Clause rights; and that

any ensuing error was harmless. The State also argues that the district court

lacked authority to order the dismissal of the indictment against Jones if the

State fails to retry him within 120 days. 

STANDARD OF REVIEW

In a habeas appeal, this court reviews the district court’s findings of fact

for clear error and its conclusions of law de novo, applying the same standard of

review that the district court applied to the state court decision. Geiger v. Cain,

540 F.3d 303, 307 (5th Cir. 2008). The Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) governed the district court’s review of Jones’s

petition. Under AEDPA, when a federal habeas petitioner’s claim has been

adjudicated on the merits in a state proceeding, a federal court must defer to the

state court’s decision unless its adjudication of the claim:

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 Here, state habeas relief was denied without a written opinion. But, because we 7

review only “the reasonableness of the state court’s ultimate decision, the AEDPA inquiry is

not altered when, as in this case, state habeas relief is denied without an opinion.” Schaetzle

v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003). In this situation, the court “(1) assumes that

the state court applied the proper ‘clearly established Federal law’; and (2) then determines

whether its decision was ‘contrary to’ or ‘an objectively unreasonable application of’ that law.”

Id.

10

(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; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d); see Rogers v. Quarterman, 555 F.3d 483, 488 (5th Cir. 2009).

“A state court’s decision is contrary to clearly established federal law if it

applies a rule that contradicts the governing law set forth in Supreme Court

cases,” Fields v. Thaler, 588 F.3d 270, 273 (5th Cir. 2009) (quotation omitted),

or if the state court “decide[s] a case differently than the United States Supreme

Court previously decided a case on a set of nearly identical facts,” Taylor v. Cain,

545 F.3d 327, 334 (5th Cir. 2008). When applying the “unreasonable 7

application” clause, “a court may grant habeas relief if the state court misapplied

the relevant legal principles to the facts.” Taylor, 545 F.3d at 334. Because no

United States Supreme Court case has facts nearly identical to those before us,

Jones’s appeal is governed by AEDPA’s “unreasonable application” prong. See

id. “The question under AEDPA is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550

U.S. 465, 473 (2007). 

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DISCUSSION

A. Whether the district court erred by reviewing a state evidentiary

ruling 

 The State argues that the district court went beyond the permissible scope

of federal habeas review by finding, contrary to the Louisiana courts, that

Artberry’s statements were hearsay. The State contends that the district court

should have deferred to the state courts’ evidentiary rulings. 

The State is correct that federal courts sitting in habeas do not review

state courts’ application of state evidence law. See Castillo v. Johnson, 141 F.3d

218, 222 (5th Cir. 1998); Mercado v. Massey, 536 F.2d 107, 108 (5th Cir. 1976).

Here, though, the district court made clear that it was not reviewing the state

evidentiary rulings themselves. Jones III, 601 F. Supp. 2d at 787. Instead, it

correctly asked whether the state court’s application of state evidence rules

violated Jones’s constitutional rights. Regardless of how a state court applies

state evidence rules, a federal habeas court has an independent duty to

determine whether that application violates the Constitution. See Estelle v.

McGuire, 502 U.S. 62, 68 (1991); see also Slovik v. Yates, 556 F.3d 747, 755 (9th

Cir. 2009) (holding that a state court’s decision based on state evidence law was

nonetheless an objectively unreasonable application of federal law); Fratta v.

Quarterman, 536 F.3d 485, 502 (5th Cir. 2008) (“[T]he fact that the statements

were admissible under a state-law hearsay exception . . . did not dispose of the

Confrontation Clause issue . . . .”). 

Adoption of the State’s argument would immunize constitutional error

from review when the error is related, however incidentally, to a state

evidentiary ruling. That is not the law. “[T]he admissibility vel non of the

evidence under state law is not determinative of a federally protected right

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cognizable on habeas corpus.” Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.

1976) (quotation omitted); see also Paxton v. Ward, 199 F.3d 1197, 1208 (10th

Cir. 1999). The district court did not err by ruling on the Confrontation Clause

issue raised by the state trial court’s application of Louisiana evidence law. 

B. Whether the admission of the recorded statements violated

Jones’s 6th Amendment rights under Ohio v. Roberts

 The State argues that Artberry’s recorded statements were properly

admitted as non-hearsay pursuant to Louisiana Code of Evidence article

801(D)(1)(b). It also claims that the Louisiana Supreme Court decision holding

that Artberry’s cross-examined suppression hearing testimony was admissible

also authorized the admission of the un-cross-examined recorded statements.

For the reasons explained below, both arguments fail. The district court

correctly found all the elements of a Confrontation Clause violation under the

applicable Ohio v. Roberts standard.

“In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. CONST. amend. VI. The

confrontation right is only implicated when the out-of-court statement is used

to prove the truth of the matter asserted. Tennessee v. Street, 471 U.S. 409, 414

(1985). Before Crawford v. Washington, 541 U.S. 36 (2004), the Confrontation

Clause barred the use of an absent declarant’s out-of-court, un-cross-examined

hearsay statements, with certain exceptions discussed below. Under the preCrawford regime applicable here, the Clause allows the use of testimony from

unavailable witnesses that is “marked with such trustworthiness that there is

no material departure from the reason of the general [Confrontation Clause]

rule.” Roberts, 448 U.S. at 65 (quotation omitted).

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 Additionally, if the constitutional error is harmless, the habeas petition must be

8

denied. See O’Neal v. McAninch, 513 U.S. 432, 435 (1995). As explained infra, the State

waived this argument.

13

[W]hen a hearsay declarant is not present for cross-examination at

trial, the Confrontation Clause normally requires a showing that he

is unavailable. Even then, his statement is admissible only if it

bears adequate “indicia of reliability.” Reliability can be inferred

without more in a case where the evidence falls within a firmly

rooted hearsay exception. In other cases, the evidence must be

excluded, at least absent a showing of particularized guarantees of

trustworthiness.

 Id. at 66. Artberry was an unavailable declarant who gave testimonial evidence

but was not present for cross-examination at trial. The questions before the

court, then, are: (1) whether the recorded statements were used to prove the

truth of the matters they asserted; and (2) whether they bear the requisite

indicia of reliability, including whether they fall within a “firmly rooted hearsay

exception.”8

The district court correctly found that Artberry’s statements were used to

prove the truth of what they asserted, as did the Louisiana Court of Appeal,

which recognized that “[i]t appears the State primarily used the recorded

statements to bolster its case against [the] defendant.” Jones II, 841 So. 2d at

975. The substance of Artberry’s statements was related through Detective

Tucker, and then the statements themselves were played to the jury. The second

statement included a detailed description of the events leading up to the

shooting. That description included, most notably, Artberry’s assertion that

Martin was shot for giving Jones and his accomplice a one-dollar bill rather than

a twenty-dollar bill for a rock of crack cocaine, and that he was shot while

searching for the twenty-dollar bill in his car—even after he had returned the

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 Although the defense did not request a limiting instruction, it is likely that any such

9

instruction would have been futile given that the statements bore directly on Jones’s

culpability and were only marginally relevant—if at all—to any purported non-hearsay

purpose. Even if the statements were admissible under Louisiana article 801(D)(1)(b), their

asserted credibility-bolstering value was substantially outweighed by the danger of unfair

prejudice. It is difficult to imagine a limiting instruction that could cure such prejudice.

 Specifically, Tucker testified that his theory of how the shooting took place was that, 10

“[w]hile reaching into his vehicle to retrieve the twenty-dollar bill, the victim was shot with

his arm extended.” 

14

crack. Artberry had not described the drug deal, the dispute over the money, or

the details of the shooting during his suppression hearing testimony. 

 The jury was never instructed to ignore the statements as testimony of

how the crime occurred and to consider them only for non-hearsay purposes.

Jones III, 601 F. Supp. 2d at 800. Without an instruction to the contrary, the

court cannot assume that the jury will not misuse the statements by considering

them for more than their purported non-hearsay purpose. United States v.

Walker, 148 F.3d 518, 524-25 (5th Cir. 1998), abrogated on other grounds by

Texas v. Cobb, 532 U.S. 162 (2001). 

9

Most importantly, the prosecution’s use of the statements was not limited

to the putative purpose of shoring up Artberry’s credibility, or indeed to any of

the justifications given at trial for their admission. After the trial court held

that the statements were admissible to show how Detective Tucker performed

his investigation and formulated his theory of the crime—a use that, the state

appellate court held, impermissibly raised the significant possibility that “‘the

jury [would] consider the statement for the truth of the matter

asserted’”—Detective Tucker relied on the substance of the statements to explain

his theory of the crime. Jones II, 841 So. 2d at 974 (quoting State v. Broadway,

10

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753 So. 2d 801, 809 (La. 2000)). Thus, Artberry’s statements were used for their

truth to put before the jury a narrative of the crime that was otherwise absent.

If a jury is asked to infer that a statement purportedly introduced for nonhearsay purposes also serves as proof of what it contains, then “the evidence

would have been hearsay; and because [the declarant] was not available for

cross-examination, Confrontation Clause concerns would have been implicated.”

Street, 471 U.S. at 414. Here, the combination of the playing of the recordings,

Tucker’s testimony about Artberry’s statements during the early morning

interviews, and Tucker’s later reliance on the statements to explain his

understanding of exactly how the shooting occurred, shows that Artberry’s

hearsay statements were admitted and used for their truth. See Jones III, 601

F. Supp. 2d at 804; see also Taylor v. Cain, 545 F.3d 327, 335 (5th Cir. 2008)

(“Police officers cannot, through their trial testimony, refer to the substance of

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

investigation, when those statements inculpate the defendant.”). 

The state court failed to consider the Confrontation Clause implications

of the use of Artberry’s testimony. That lapse would not have been

constitutional error if the testimony bore “particularized guarantees of

trustworthiness” or if it fell “within a firmly rooted hearsay exception.” Roberts,

448 U.S. at 66. Because it did neither, the use of Artberry’s testimony violated

Jones’s Sixth Amendment right to confront the witnesses against him.

“[A] finding of particularized guarantees of trustworthiness must be shown

from the totality of the circumstances that surround the making of the

statement, and may not be based on other evidence at trial that may corroborate

the statement.” Fratta v. Quarterman, 536 F.3d 485, 505 (5th Cir. 2008).

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Artberry gave conflicting statements while being questioned at a police station

in the early morning hours after a drug-related shooting. By his own admission,

he had been with the victim until the shooting, which occurred after he had

helped the victim locate crack cocaine. The shooting occurred adjacent to

Artberry’s property, and Artberry was found near the scene of the crime just

afterwards. Additionally, Artberry gave two conflicting statements, both of

which exculpated him of any wrongdoing. Where “the declarant makes

accusatory statements that inculpate another” to non-undercover police

personnel after a crime, “there always exists the strong possibility that the

declarant has the desire to shift or spread blame, curry favor, avenge himself,

or divert attention to another.” United States v. Flores, 985 F.2d 770, 780 (5th

Cir. 1993) (quotation omitted). Nothing about the facts surrounding James’s

recorded statements suggests, let alone establishes, a particularized guarantee

of trustworthiness. 

Second, as the district court correctly decided, Louisiana Code of Evidence

article 801(D)(1)(b) is not a firmly rooted hearsay exception. Whether a hearsay

exception is firmly rooted for the purposes of a Confrontation Clause analysis is

a question of federal, not state, law. Lilly v. Virginia, 527 U.S. 116, 125 (1999).

A hearsay exception is firmly rooted if, “in light of longstanding judicial and

legislative experience, it rest[s] [on] such [a] solid foundatio[n] that admission

of virtually any evidence within [it] comports with the substance of the

constitutional protection.” Id. at 126 (alterations in original) (quotations

omitted). Conditions that have proved, over time, “to remove all temptation to

falsehood, and to enforce as strict an adherence to the truth as would the

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 Here, by contrast, all of Jones’s statements were made after a motive to lie arose. 11

17

obligation of an oath and cross-examination at trial,” are firmly rooted.

Id. (quotation omitted). 

The question whether a prior consistent statement is a firmly rooted

hearsay exception arises rarely, if ever: in the typical case in which such

evidence is introduced, the declarant is on the stand and his prior consistent

statement, about which he can be cross-examined, comes in as a hearsay

exemption. We hold that, even if a prior consistent statement were normally

considered to be imbued with the same trustworthiness as hearsay admitted

under other firmly rooted exceptions, the rule as applied in Louisiana would not

qualify. In Tome v. United States, the Supreme Court held that, under the

Federal Rules of Evidence, a prior consistent statement used to rebut a charge

of improper motive must have been made before the improper motive allegedly

arose. 513 U.S. 150, 160 (1995). The pre-motive requirement, it explained, was 11

“[t]he prevailing common-law rule for more than a century before adoption of the

Federal Rules of Evidence.” Id. at 156. Louisiana’s prior consistent statement

rule has no such requirement. For Louisiana article 801 to be eligible as a firmly

rooted hearsay exception, it cannot contravene more than 100 years of common

law evidence practice. 

Thus, the state trial court allowed the State to use the un-cross-examined,

testimonial statements of an absent party for their truth against Jones. The

statements were not marked by particularized guarantees of trustworthiness

and did not fall under a firmly rooted hearsay exception. Under Roberts, the

admission of the recorded statements violated Jones’s clearly established Sixth

Amendment right to confront the witnesses against him. Moreover, the

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Louisiana courts’ failure to recognize the violation was objectively unreasonable.

This is not a close case. The violation of Jones’s rights at trial should have been

obvious, and the failure to correct it was unreasonable even under the

deferential § 2254(d) standard. Cf. Taylor, 545 F.3d at 335-36 (holding that the

state court unreasonably applied Ohio v. Roberts); Dorchy v. Jones, 398 F.3d 783,

788-91 (6th Cir. 2005) (same); Murillo v. Frank, 402 F.3d 786, 792 (7th Cir.

2005) (affirming grant of habeas and holding that “[a] statement, made during

interrogation and blaming someone else, . . . is too unreliable to supply the

‘particularized guarantees of trustworthiness’ that until Crawford could have

supported admissibility.”); Guidry v. Dretke, 397 F.3d 306, 329-30 (5th Cir. 2005)

(affirming a grant of habeas based in part on a Confrontation Clause violation

under Ohio v. Roberts). 

The State’s remaining arguments that the admission of the statements

was nonetheless proper are unavailing. It first contends that the decision of the

Louisiana Supreme Court allowing the admission of Artberry’s suppression

hearing testimony also allowed the admission of Artberry’s recorded statements.

This argument has been rejected by each court that has considered it, and for

good reason. Jones III, 601 F. Supp. 2d at 790; Jones II, 841 So. 2d at 975

(“[T]here is nothing in the [state supreme court’s] opinion that can be reasonably

interpreted as sanctioning the use of the recorded statements by the State as

direct evidence.”). The Louisiana Supreme Court came to no such conclusion.

It noted in passing that Jones’s defense counsel, when cross-examining Artberry

during the suppression hearing, “uncovered the gist of Artberry’s second

undisclosed statement.” Jones I, 791 So. 2d at 627. This, of course, does not

mean that Artberry was cross-examined about the statement. While the state

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supreme court also explained that, pursuant to Louisiana Code of Evidence

article 806, the defense could introduce Artberry’s statements to undercut the

reliability of Artberry’s suppression hearing testimony, id. at 628, at no point did

it hold, or even imply, that the State could use the recorded statements against

Jones in its case-in-chief. 

The State brings two additional challenges to the grant of habeas relief.

First, it asserts that, regardless of whether their admission would otherwise

violate Jones’s Confrontation Clause right, Artberry’s statements were properly

admitted because Jones’s counsel invited the error. Second, the State contends

that the admission was harmless error. The State waived both arguments by

failing to raise them before the district court.

“The doctrine of invited error provides that when injection of inadmissible

evidence is attributable to the actions of the defense, the defense cannot later

object to such invited error.” United States v. Green, 272 F.3d 748, 754 (5th Cir.

2001) (quotation omitted); see also United States v. Sharpe, 996 F.2d 125, 129

(6th Cir. 1993). The State waived this argument by failing to raise it in its

merits opposition to Jones’s petition in the district court. The district court’s

opinion includes a footnote explaining the difference between “opening the door”

to the admission of otherwise irrelevant evidence and “invited error.” Jones III,

601 F. Supp. 2d at 799 n.21. The district court did not rule on an invited error

argument, however, because the State failed to make one. “[I]f a litigant desires

to preserve an argument for appeal, the litigant must press and not merely

intimate the argument during the proceedings before the district court.” FDIC

v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994). 

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Finally, the State argues that any Confrontation Clause violation was

harmless because the evidence against Jones was strong and because the

admission of the statements did not add significantly to the state’s case. “On

habeas review under AEDPA, the prejudice of constitutional error in a statecourt criminal trial is measured by the ‘substantial and injurious effect [or

influence in determining the jury’s verdict]’ standard of Brecht v. Abrahamson,”

507 U.S. 619 (1993). Taylor v. Cain, 545 F.3d 327, 336 (2008). When a court is

“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, 551 U.S. 112, 121 n.3 (2007) (omission in original) (quotation omitted);

see also Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996). An error is

harmless, however, when the evidence of the defendant’s guilt is overwhelming.

Taylor, 545 F.3d at 336. The state bears the burden of showing that the error

was harmless. See Fry, 551 U.S. at 121 n.3.

The district court found that the State waived the harmless error

argument. The State did not raise harmless error in its response to Jones’s pro

se habeas petition. It brought up the issue only in a surreply, to counter a

separate argument by Jones that is not before this court. Arguments raised for

the first time in a reply brief are generally waived. See United States v. Jackson,

426 F.3d 301, 304 n.2 (5th Cir. 2005); Iteld, Bernstein & Assocs., LLC v. Hanover

Ins. Group, Slip Copy, 2009 WL 2496552, at *4 (E.D. La. Aug. 12, 2009)

(“[A]rguments raised for the first time in a Reply brief are waived.”). This court

can, in its discretion, consider the harmless error defense sua sponte. United

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 The Vonsteen court cited United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991), 12

for the proposition that the appellate court “ordinarily ha[s] the discretion to decide legal

issues that are not timely raised.” 950 F.2d at 1091. The Giovannetti case concluded that the

court had discretion to overlook the government’s failure to argue harmless error and

undertake a sua sponte analysis. 928 F.2d at 227.

This court stayed the district court’s judgment in an order dated June 5, 2009, before 13

the 120 days had run.

21

States v. Vontsteen, 950 F.2d 1086, 1091-92 (5th Cir. 1992). Because we are 12

convinced that the error here was not harmless, we will not indulge the

opportunity to undertake a full analysis in light of the State’s waiver.

C. Whether the district court erred by ordering a conditional

dismissal of the indictment

 The last question is whether the district court erred by ordering the State

to dismiss the indictment if it fails to retry Jones within 120 days. The State 13

is correct that the portion of the order requiring the dismissal of the indictment

against Jones, rather than requiring him to be set free, is unusual. We conclude

that it constitutes an abuse of discretion. See Capps v. Sullivan, 13 F.3d 350,

352 (10th Cir. 1993) (“In the typical case, we review the form of judgment

entered by the district court for an abuse of discretion.”).

 In federal habeas cases, district courts have “broad discretion in

conditioning a judgment granting habeas relief.” Hilton v. Braunskill, 481 U.S.

770, 775 (1987). “Federal courts are authorized, under 28 U.S.C. § 2243, to

dispose of habeas corpus matters as law and justice require.” Id. (quotation

omitted). The typical remedy in habeas corpus is physical release. “Habeas

exists ‘to enforce the right of personal liberty; when that right is denied and a

person is confined, the federal court has the power to release him. Indeed, it has

no other power; . . . it can only act on the body of the petitioner.’” Zalawadia v.

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Ashcroft, 371 F.3d 292, 299 (5th Cir. 2004) (omission in original) (quoting Fay v.

Noia, 372 U.S. 391, 430-31 (1963)); see also Carson v. Johnson, 112 F.3d 818, 820

(5th Cir. 1997) (“A habeas petition . . . is the proper vehicle to seek release from

custody.”). The physical release required by the writ, however, is not necessarily

unconditional. Courts generally allow for the release of a prisoner subject to the

state’s right to detain him on the underlying indictment. Thus, in Irvin v. Dowd,

the Supreme Court granted habeas relief but noted that the “petitioner is still

subject to custody under the indictment filed by the State . . . and may be tried

on this or another indictment.” 366 U.S. 717, 728 (1961); see also Chessman v.

Teets, 354 U.S. 156, 166 (1957) (“We . . . remand the case to the District Court,

with instructions to enter such orders as may be appropriate to allow California

a reasonable time within which to take further proceedings not inconsistent with

this opinion, failing which the petitioner shall be discharged.”).

An order conditionally dismissing the underlying indictment is warranted

only in narrow circumstances. Because the habeas court can act solely on the

body of the prisoner, it ordinarily lacks the power to order the dismissal of an

indictment. Even when the state fails to retry a defendant within the time set

by a habeas court so that the writ issues, freeing the defendant, the state is

generally free to re-arrest and retry the defendant on the original indictment.

See Moore v. Zant, 972 F.2d 318, 320 (11th Cir. 1992) (“[I]f the state fails to

correct the defect within the given time and the prisoner is released from

custody, the state may ordinarily still rearrest and reprosecute that person.”).

In rare circumstances, a habeas court can end a state criminal proceeding

as part of the habeas remedy. If the constitutional problem that led to the grant

of the writ cannot be cured by a new trial—for example, if a double jeopardy

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violation merits habeas relief—then the habeas court can permanently end the

state criminal proceeding. “For a federal court to exercise its habeas corpus

power to stop a state criminal proceeding ‘special circumstances’ must exist. . . .

[T]he constitutional violation must be such that it cannot be remedied by

another trial, or other exceptional circumstances [must] exist such that the

holding of a new trial would be unjust.” Capps, 13 F.3d at 352-53; see also Foster

v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993) (“[Banning a retrial] is an

extraordinary remedy that is suitable only in certain situations, such as where

a retrial itself would violate the petitioner’s constitutional rights.”).

Here, a retrial would not violate Jones’s constitutional rights.

Additionally, there are no other “special circumstances” that justify an order

ending all state murder proceedings against Jones in the event that the State

cannot begin a retrial within 120 days. Thus, the district court lacked authority

to do anything except order Jones’s release, which the court may properly

condition by giving the State a certain amount of time to retry him. Its order

conditionally dismissing the indictment against Jones was an abuse of

discretion. 

CONCLUSION

The district court’s grant of habeas corpus relief is AFFIRMED. The

portion of its order conditionally requiring the State to dismiss the indictment

against Jones is VACATED and the case is REMANDED for further proceedings

consistent with this opinion. 

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