Atkins v. Hooper
| Decision Date | 07 August 2020 |
| Docket Number | No. 19-30018,19-30018 |
| Citation | 969 F.3d 200 |
| Parties | Justin Terrell ATKINS, Petitioner - Appellant v. Timothy HOOPER, Warden, Elayn Hunt Correctional Center, Respondent - Appellee |
| Court | U.S. Court of Appeals — Fifth Circuit |
Christine Marie Calogero, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA, for Petitioner-Appellant.
Robert Nicolas Anderson, Assistant District Attorney, District Attorney's Office for the 4th JDC-Ouachita Parish, Monroe, LA, for Respondent-Appellee.
Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
A Louisiana inmate appeals the district court's denial of habeas relief based on a Confrontation Clause violation. We REVERSE and REMAND so the district court can grant the relief requested.
Justin Terrell Atkins was convicted by a jury of armed robbery and aggravated battery. The conviction was affirmed on direct appeal, and the Louisiana Supreme Court denied review. State v. Atkins , 46,613 (La. App. 2 Cir. 9/21/11), 74 So. 3d 238, writ denied , 2011-2287 (La. 2/17/12) 82 So. 3d 284.
Our factual and procedural summaries are taken from the Louisiana Court of Appeal decision. Atkins , 74 So. 3d at 239. 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 Jones's house after Jones had cashed a check. After kicking in the door to the house, Atkins demanded 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 observed Jones cash his check at a store. Eight days after the robbery, Horton approached law enforcement and, upon questioning by Detective Jeffrey Dowdy, Horton admitted he had a role in the robbery, but he said Atkins was primarily responsible for the crime. Detective Dowdy then obtained an arrest warrant for Atkins. Separately, Harris gave a photo of Atkins to law enforcement and said it was of the person who hit him and who robbed and beat Jones.
Atkins filed for state post-conviction relief in which he contended that he was denied his right to confront and cross-examine Horton when alleged hearsay evidence was presented at trial. The claim focuses on the State's opening statement before the jury, the testimony of Detective Dowdy, and the State's closing statement.
In the State's opening statement, the prosecutor stated:
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.
During the trial, the following exchange occurred between the prosecutor and Detective Dowdy:
The State rested without calling Horton to testify. Finally, the prosecutor stated in closing argument: Detective Dowdy "interviews Lawrence Horton, who is known as O and then obtains an arrest warrant for Justin Atkins, the defendant." This testimony and closing argument are the facts underlying the claim before us.
The state trial court denied Atkins’ application for post-conviction relief. The court of appeal and the Louisiana Supreme Court denied Atkins’ writ applications. Atkins filed a federal habeas application under 28 U.S.C. § 2254 claiming that he was denied his Sixth Amendment right to confrontation. The magistrate judge issued a report and recommended that Atkins’ application be denied. The district court adopted the report, dismissed Atkins’ Section 2254 application, and denied Atkins a Certificate of Appealability ("COA"). Atkins timely appealed. This court granted Atkins’ application for a COA on August 9, 2019.
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 Atkins alternatively argues the error was harmful. We consider Atkins’ arguments in that order, but first we address whether the State waived a defense of procedural default.
Atkins contends the State waived a defense of procedural default because the State failed to raise the defense in the district court. In the State's response brief, the State does not attempt to raise procedural default as a defense and the State does not respond to Atkins’ 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 (1) whether the applicant has had a reasonable opportunity to argue against the application of the bar, and (2) whether the government intentionally waived the procedural defense. Smith v. Johnson , 216 F.3d 521, 523–24 (5th Cir. 2000) ; see United States v. Willis , 273 F.3d 592, 596 (5th Cir. 2001) (). We begin and end this analysis with the second consideration.
Here, the district court explicitly identified a possible defense of procedural default and instructed the State to raise the defense if the State believed any of Atkins’ habeas claims were procedurally defaulted. The State thereafter answered Atkins’ habeas application and explicitly abandoned the defense, stating that "it appears [Atkins] has exhausted his state court remedies." This chronology confirms that the State intentionally waived the defense. We will not inject the issue into this appeal of whether Atkins’ habeas application is procedurally defaulted.
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"), federal courts may not grant habeas relief on a claim that the state courts have adjudicated on the merits unless that adjudication resulted in a decision that was either (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "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).
The first standard, that the decision be "contrary to ... clearly established Federal law," is met when "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The second standard that would justify relief, which is that the state court made an "unreasonable application of clearly established federal law," is satisfied when that court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. These alternatives require more than a federal court's conclusion that the state court erred. The federal court must also conclude the state court's decision was "unreasonable." Id. at 411, 120 S.Ct. 1495.
The first task for us in reviewing a claim governed by the AEDPA is to identify the relevant state-court decision. § 2254(d). To that end, the Supreme Court says that we must examine closely the "last related state-court decision" that provides a "relevant rationale" for a particular claim. Wilson v. Sellers , ––– U.S. ––––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018). If the last related state-court decision does not provide a relevant rationale for the relevant claim, we must "look through" that decision and find one that does. Id. Only then can we consider whether the highest state court to decide the claim resolved it in a manner contrary to or with an unreasonable application of clearly established Supreme Court precedent. Id.
Before identifying the appropriate state-court decision, we review Atkins’ application for state post-conviction relief. Atkins’ state application included the same Confrontation Clause claim he brought in his federal application under Section 2254, but Atkins’ state application also included claims of ineffective assistance of trial counsel. The allegations included claims about deficient pretrial preparation and about later failures in cross-examining witnesses, objecting to jury instructions, and failing to move for mistrial based on a Confrontation Clause violation. None of those allegations were raised in Atkins’ federal application. The highest state-court decision for us to...
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Atkins v. Hooper
...November 3, 2020ON 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.F......
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