Atkins v. Hooper, No. 19-30018

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtLESLIE H. SOUTHWICK, Circuit Judge
Citation979 F.3d 1035
Parties Justin Terrell ATKINS, Petitioner - Appellant v. Timothy HOOPER, Warden, Elayn Hunt Correctional Center, Respondent - Appellee
Docket NumberNo. 19-30018
Decision Date03 November 2020

979 F.3d 1035

Justin Terrell ATKINS, Petitioner - Appellant
v.
Timothy HOOPER, Warden, Elayn Hunt Correctional Center, Respondent - Appellee

No. 19-30018

United States Court of Appeals, Fifth Circuit.

FILED November 3, 2020


ON PETITION FOR REHEARING

LESLIE H. SOUTHWICK, Circuit Judge:

The previous opinion is withdrawn. See Atkins v. Hooper , 969 F.3d 200 (5th Cir. 2020). A Louisiana inmate appeals the district court's denial of habeas relief based on a Confrontation Clause violation. We AFFIRM.

FACTS AND PROCEDURAL BACKGROUND

A jury convicted Justin Terrell Atkins of armed robbery and aggravated battery. The conviction was affirmed on appeal, then the Louisiana Supreme Court denied review. State v. Atkins , 74 So. 3d 238 (La. Ct. App. 2011), writ denied , 82 So. 3d 284 (La. 2012) (mem.). Our factual summary is taken from the Louisiana court of appeal decision. Id. at 239. The issue in this appeal concerns the evidence identifying Atkins. For purposes of describing the events, we assume Atkins was one of the participants.

Robert Jones, Howard Bishop, and Tom Harris were drinking alcohol together at Jones's house. Atkins knew that Bishop and Jones had just returned to the house after Jones cashed a check. After kicking in the door to the house, Atkins demanded

979 F.3d 1040

money, but Jones refused. Atkins began beating Jones with the butt of a firearm. When Harris intervened, Atkins hit him too. Bishop witnessed the incident and saw Atkins take money from Jones's pocket. During the robbery, Lawrence Horton was at the door to Jones's house. Horton had followed Jones and Bishop and saw Jones cash his check.

That night, neither Bishop nor Harris could give the actual names of the men involved in the crime. They were able to inform police, though, of their nicknames and added that the person who hit Harris and Jones had been wearing an orange shirt. Harris within a few days learned Horton's name and informed police. Eight days after the crime, Horton surrendered himself to police. When questioned by Detective Jeffrey Dowdy, Horton admitted to being one of the offenders but said Atkins was primarily responsible for the crime. Detective Dowdy then obtained an arrest warrant for Atkins. Horton's statements were the first ones to name Atkins and the only ones Detective Dowdy used when obtaining an arrest warrant.

It was almost two weeks after the incident before either Bishop or Harris named Atkins. By that time, Atkins had already been arrested. Harris testified that a neighbor who lived below his apartment provided Harris with a picture of a man holding the neighbor's baby. The man in the photograph was Atkins. Harris believed that this photograph was of the person involved in the crime who had been wearing an orange shirt. He provided it to police. The officers then asked Bishop to examine a photographic lineup, and Bishop chose the picture of Atkins. Whether Harris had earlier shown the photograph to Bishop is disputed, as we will discuss. This testimony was presented at trial, and a jury convicted Atkins for his role in the crime. The conviction was affirmed on direct appeal.

Atkins filed for state post-conviction relief in which he contended that he was denied his right to confront and cross-examine Horton when hearsay evidence was presented at trial. The claim focuses on the State's opening statement, the testimony of Detective Dowdy, and the State's closing argument.

The prosecutor made these assertions in his opening statement:

Finally, I believe the State will have the testimony of Lawrence Horton. Lawrence Horton is a co-defendant in this case. That he was arrested for this offense as well as the defendant in this case. I believe that he will tell you that he and the defendant met on the morning of January 2nd, 2009. That they went ultimately to 1710 Jackson Street wherein the defendant, Mr. Atkins over here, busted the door in at 1710 and robbed and beat the victims while he himself, Mr. Horton, served as a lookout. And I believe that will – you will anticipate that testimony as well.

Detective Dowdy at trial was allowed to imply, but not directly state, that Horton had told Dowdy that Atkins was his accomplice in the crime:

Q. Okay. And did you in fact speak with Lawrence Horton?

A. Yes, sir, I did.

Q. All right. Was he advised of his rights?

A. Yes, sir, he was.

Q. And did he provide a statement to you?

A. Yes, sir, he did.

Q. Was the statement inculpatory? Did he –

A. Yes, sir, it was.

Q. Okay. Did he implicate anybody else?
979 F.3d 1041
A. Yes, sir, he did.

Q. Okay. As a result of this – well, all right, he implicated someone else. What did you do next with regard to your investigation?

A. Based on the – the information that he provided he was arrested and again, based on the information that he provided I was able to obtain a warrant.

Q. For whom?

A. Justin Atkins.

Harris and Bishop testified for the State, identifying Atkins but admitting to being intoxicated at the time of the robbery. The State rested without calling Horton after indicating in its opening statement that he would testify. The State's brief here, written by the assistant district attorney handling the trial, said that Horton was interviewed after the opening statement. As a result, "the undersigned counsel felt Mr. Horton was not a credible witness and decided not to call Mr. Horton."

Atkins presented only one witness, Darrell Williams, whose testimony contradicted parts of Harris’ and Bishop's recollections of details leading up to the assault and robbery. Williams also testified that a man in an orange shirt had been outside Jones's house just before the attack on Harris and Jones, but he could not identify that man as Atkins. During closing argument, the prosecutor stated that Detective Dowdy "interview[ed] Lawrence Horton, who [was] known as O and then obtain[ed] an arrest warrant for Justin Atkins, the defendant." Detective Dowdy's testimony and the State's effort to make certain by its argument that jurors understood the implications about what Horton really told Detective Dowdy are the facts underlying the claim before us. Atkins was convicted, and the judgment was affirmed on appeal.

The state district court denied Atkins’ application for post-conviction relief. Both the state court of appeal and supreme court denied Atkins’ writ applications. Atkins filed a federal habeas application, claiming that he was denied his Sixth Amendment right to confrontation. A magistrate judge recommended that Atkins’ application be denied. The district court adopted the report, dismissed Atkins’ application, and denied Atkins a Certificate of Appealability. Atkins timely appealed. This court granted Atkins the right to appeal his Confrontation Clause claim.

DISCUSSION

Atkins contends the state court's decision denying his Sixth Amendment Confrontation Clause claim was contrary to and involved an unreasonable application of Supreme Court precedent. Atkins also argues the State waived any harmlessness argument and, regardless, the error was harmful. We first, though, consider whether the State waived a defense of procedural default.

I. Waiver of defense of procedural default

The federal district court strongly recommended that the State analyze whether Atkins’ request for relief was barred by procedural default and asked the State to address this possible defense. The district court's urging may have been because procedural default was one of the grounds on which the Louisiana Supreme Court denied state habeas relief. State ex rel. Atkins v. State , 227 So. 3d 251, 251 (La. 2017). Nevertheless, the State failed to do so at the district court, and Atkins now contends the State waived procedural default because of this failure. In the State's response brief, the State did not attempt to raise procedural default as a defense, and the State did not respond to Atkins’

979 F.3d 1042

waiver argument. Thus, to bar habeas relief based on procedural default, we would have to raise and apply the defense sua sponte .

When considering whether we should identify and apply a procedural default in habeas review, we consider whether the applicant had notice that the appellate court might consider procedural default and had a reasonable opportunity to respond, and whether the government intentionally waived the possible default. Smith v. Johnson , 216 F.3d 521, 524 (5th Cir. 2000). Here, the district court identified a possible defense of procedural default and instructed the State to raise the defense if the State believed it applied. The State thereafter answered Atkins’ habeas application and explicitly spurned the suggested defense, stating that "it appears [Atkins] has exhausted his state court remedies." That is enough to convince us not to consider the issue of whether Atkins’ habeas application is procedurally defaulted.

II. Violation of the Confrontation Clause

We review a "district court's findings of fact for clear error and its conclusions of law de novo ." Dorsey v. Stephens , 720 F.3d 309, 314 (5th Cir. 2013). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant habeas relief on a claim that a state court has adjudicated on the...

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  • Nunez v. Lumpkin, Civil Action 1:21-cv-131
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 23, 2022
    ...(citations omitted). In § 2254 proceedings, Confrontation Clause claims “are subject to harmless-error analysis.” Atkins v. Hooper, 979 F.3d 1035, 1045, 1049 (5th Cir. 2020). Thus, in addition to making the required showing under § 2254(d), the petitioner must also satisfy the test announce......
  • Engle v. Lumpkin, 19-40356
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    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 2022
    ...U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ).37 Woods v. Johnson , 75 F.3d 1017, 1026 (5th Cir. 1996).38 Atkins v. Hooper , 979 F.3d 1035, 1049 (5th Cir. 2020).39 Mendenhall v. State , 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) (citing Tex. Penal Code § 8.01(a) ).40 Ruffin v. Stat......
  • Russell v. Denmark, 3:14-CV-225-CWR-LGI
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 24, 2021
    ...at 102, 131 S.Ct. 770. Courts should always be mindful that "habeas itself is based on important liberty interests." Atkins v. Hooper , 979 F.3d 1035, 1044 (5th Cir. 2020). The right to be brought to trial to face charges brought by the State is one such important liberty interest. So impor......
  • Bettes v. Lumpkin, Civil Action 6:20-CV-00062
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 8, 2022
    ...the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.” Atkins v. Hooper, 979 F.3d 1035, 1045 (5th Cir. 2020) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)) (cleaned up). Under the ......
  • Request a trial to view additional results
10 cases
  • Nunez v. Lumpkin, Civil Action 1:21-cv-131
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 23, 2022
    ...(citations omitted). In § 2254 proceedings, Confrontation Clause claims “are subject to harmless-error analysis.” Atkins v. Hooper, 979 F.3d 1035, 1045, 1049 (5th Cir. 2020). Thus, in addition to making the required showing under § 2254(d), the petitioner must also satisfy the test announce......
  • Engle v. Lumpkin, 19-40356
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 12, 2022
    ...U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ).37 Woods v. Johnson , 75 F.3d 1017, 1026 (5th Cir. 1996).38 Atkins v. Hooper , 979 F.3d 1035, 1049 (5th Cir. 2020).39 Mendenhall v. State , 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) (citing Tex. Penal Code § 8.01(a) ).40 Ruffin v. Stat......
  • Russell v. Denmark, 3:14-CV-225-CWR-LGI
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 24, 2021
    ...at 102, 131 S.Ct. 770. Courts should always be mindful that "habeas itself is based on important liberty interests." Atkins v. Hooper , 979 F.3d 1035, 1044 (5th Cir. 2020). The right to be brought to trial to face charges brought by the State is one such important liberty interest. So impor......
  • Bettes v. Lumpkin, Civil Action 6:20-CV-00062
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 8, 2022
    ...the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.” Atkins v. Hooper, 979 F.3d 1035, 1045 (5th Cir. 2020) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)) (cleaned up). Under the ......
  • Request a trial to view additional results

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