Opinion
Civil Action No. 4:04-CV-026-Y.
July 6, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND CONCLUSIONS
In this action brought by petitioner John Lee Wheeler under 28 U.S.C. § 2254, the Court has made an independent review of the following matters in the above-styled and numbered cause:
1. The pleadings and record;
2. The proposed findings, conclusions, and recommendation of the United States magistrate judge filed on May 17, 2004; and
3. The petitioner's written objections to the proposed findings, conclusions, and recommendation of the United States magistrate judge filed on June 4, 2004, and petitioner's supplemental objections filed on July 1, 2004.
The Court, after de novo review, concludes that Wheeler's objections must be overruled, and that the petition for writ of habeas corpus should be denied for the reasons stated in the magistrate judge's findings and conclusions.
In the supplemental objections, Wheeler urges the Court to reconsider his confrontation-clause argument based upon the Supreme Court's decision in Crawford v. Washington, 124 S.Ct. 1354 (2004). In Crawford, the Supreme Court overruled Ohio v. Roberts, 448 U.S. 56,66 (1980), and held that "testimonial" hearsay is inadmissible against a criminal defendant unless the declarant is unavailable and the defendant has a prior opportunity to cross-examine the declarant. Crawford, 124 S.Ct. at 1374. Crawford does not change the resolution of this case. First, the Supreme Court did not suggest that its holding would apply retroactively. See generally Teague v. Lane, 489 U.S. 288, 310 (1989) (general rule that new constitutional rules of criminal procedure enunciated in a Supreme Court decision are not applied retroactively to cases that have become final). Also, the Crawford holding does not appear to fall within either of the two exceptions to that non-retroactivity doctrine. See Id. (identifying the two exceptions as (1) if the new rule places certain kinds of conduct beyond the power of the criminal law-making authority to proscribe; or (2) if the new rule is a "watershed" rule without which alters the "understanding of the bedrock procedural elements" essential to the fairness of a proceeding). Furthermore, even if a confrontation clause violation is found, a petitioner is not entitled to habeas relief unless he proves that the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The particular test is whether the petitioner "has successfully established . . . grave doubt as to whether the assumed wrongfully admitted hearsay testimony influenced the conviction." Cupit v. Whitley, 28 F.3d 532, 538-39 (5th Cir. 1994), cert. den'd, 513 U.S. 1163 (1995). As noted by the magistrate judge in considering several factors listed by the court of appeals in Cupid, Wheeler did not make a showing that the admission of hearsay evidence met this standard.
It is therefore ORDERED that the findings, conclusions, and recommendation of the magistrate judge should be, and are hereby, ADOPTED.
It is further ORDERED that Wheeler's Petition for Writ of Habeas Corpus be, and is hereby, DENIED.