Robinson v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
December 5, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-51233
_______________
CONNIE CORNELIUS ROBINSON,
Petitioner-Appellant,
VERSUS
NATHANIEL QUARTERMAN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m SA-03-CA-897-NN
______________________________
Before SMITH, BENAVIDES, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Connie Robinson appeals the denial of his
petition for writ of habeas corpus. Finding
only harmless error, we affirm.
I.
San Antonio police Daniel Vega and Ron
Heinrich responded to a 911 call made from
the home of Myrtle Edwards. There the offic-
ers found Edwards, Robinson, and Nisha
Spikes, who appeared frightened and was icing
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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a large bump on her forehead. Heinrich ques-
tioned Robinson outside the house, while Vega
remained inside and questioned Spikes. Rob-
inson, a convicted felon, was arrested for out-
standing traffic tickets but ultimately was
charged with unlawful possession of a firearm
by a felon.
At trial Vega testified that upon arriving at
the house he questioned Spikes, who reported
that Robinson was driving Spikes and Edwards
home from a nightclub when the car hit a
guardrail and was damaged.1 After they ar-
rived at Edwards’s house and Edwards went
to bed, Robinson accused Spikes of causing
the accident and began to hit her, causing the
swollen area on her head. The noise from the
scuffle woke Edwards, who called 911.
Before police arrived, Robinson removed a
gun from his waistband and concealed it in a
pizza box. After Spikes reported the gun’s lo-
cation, Vega entered the kitchen and found a
gun in a pizza box. Robinson denied that the
gun was his, and no fingerprints were recov-
ered from the weapon.
Edwards testified that she and Spikes had
gone to the nightclub together, where they met
Robinson, a friend of Spikes’s, who was
armed. While Robinson was driving them
home, Spikes took Robinson’s gun from him
and emptied the bullets by firing it five or six
times out the window. After going to bed, Ed-
wards was awakened by Spikes’s yelling as
Robinson was hitting her.
After Vega had finished questioning Spikes
and the officers were preparing to leave,
Spikes told Edwards that Robinson had hidden
the gun. Edwards asked Spikes why she had
not told the police about the gun, and in re-
sponse Spikes called the police back and in-
formed them that Robinson had concealed his
gun in the kitchen. Edwards witnessed Vega’s
retrieval of the gun from the pizza box after
Spikes had related its location.
On cross-examination, Robinson impeached
Edwards by eliciting testimony that she had
served jail time for a theft conviction. She had
also written romantic letters to Robinson while
he was in jail, which demonstrated Edwards’s
attraction to him and her jealousy of Spikes.
Edwards thus, according to Robinson, was
motivated to provide false testimony, because
if Robinson went to prison it would separate
him from Spikes. Robinson was not permitted
to cross-examine Edwards about her deferred
adjudication status and residence at the Bexar
County jail at the time of her testimony.
A jury convicted Robinson of unlawful pos-
session of a firearm by a felon, and he was sen-
tenced to a ninety-nine-year prison term. He
unsuccessfully challenged his conviction on
direct appeal and through state postconviction
application. After he filed a federal habeas pe-
tition pursuant to 28 U.S.C. § 2254, the mag-
istrate judge found, inter alia, that the trial
court had violated the Confrontation Clause of
the Sixth Amendment, but held that the error
was harmless and denied the petition. We
granted a certificate of appealability to deter-
mine whether “the trial court erred in denying
[Robinson] the right to cross-examine Ed-
wards about her deferred adjudication status.”2
1 Spikes did not testify at trial, because she
could not be located. Vega’s account of Spikes’s
statements was admitted pursuant to the hearsay
exception for excited utterances. See TEX. R.
EVID. 803(2).
2 Robinson also moves for reconsideration of
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II.
Because Robinson is a pro se litigant, we
liberally construe his brief and apply less strin-
gent standards in interpreting his arguments
than we would in the case of a counseled par-
ty. Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995). “In a habeas corpus appeal, we re-
view the district court’s findings of facts for
clear error and its conclusions of law de novo,
applying the same standards to the state
court’s decision as did the district court.”
Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.
2004) (citing Martinez v. Johnson, 255 F.3d
229, 237 (5th Cir. 2001)).
“[W]e must defer to the state habeas court
unless its decision was ‘contrary to, or in-
volved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States.’”
Haynes v. Cain, 298 F.3d 375, 379 (5th Cir.
2002) (en banc) (quoting 28 U.S.C. § 2254-
(d)(1)). “A decision is contrary to clearly es-
tablished Federal law ‘if 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] Court has on a set of materially indistin-
guishable facts.’” Hill v. Johnson, 210 F.3d
481, 485 (5th Cir. 2000) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)). Finally,
“[f]actual determinations by state courts are
presumed correct absent clear and convincing
evidence to the contrary.” Miller-El v. Cock-
rell, 537 U.S. 322, 324 (2003) (citing 28
U.S.C. § 2254(e)(1)).
III.
We now consider whether the trial court
erred in denying Robinson the right to cross-
examine Edwards about her deferred adjudica-
tion status and residence at the county jail at
the time of her testimony. If it so erred, we
must decide whether such error was harmless.
A.
The Sixth Amendment guarantees a defen-
dant the right to confront hostile witnesses.3
The trial court denied Robinson’s requested
cross-examination because, based on Texas
law, Robinson had failed to show sufficient ac-
tual bias or prejudice. This denial, contrary to
clearly established federal law, violated Rob-
inson’s Confrontation Clause right.
The magistrate judge correctly found that
the trial court’s decision contravened Supreme
Court precedent. In Alford v. United States,
282 U.S. 687 (1931), the Court upheld the de-
fendant’s right to impeach a witness by dem-
onstrating that, because of the witness’s incar-
ceration at the time of his testimony, his “tes-
timony was biased because given under prom-
ise or expectation of immunity, or under the
coercive effect of his detention by officers of
the United States.” Id. at 693. The Court re-
visited this issue in Davis v. Alaska, 415 U.S.
308 (1974), and held that it was a violation of
the Confrontation Clause for the trial court to
deny cross-examination of the crime’s only
eyewitness about his probationary status. The
witness was on probation for a crime commit-
ted while he was a juvenile, but the Court
found that the Confrontation Clause trumped
2(...continued)
the ruling that his reply brief was not timely filed,
but he provides no evidence to corroborate his
claim that he moved for a filing extension until De-
cember 19 and that he placed the brief in the prison
mail system on December 14. It was not received
at the clerk’s office until January 12, so we find it
to be untimely.
3 “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the wit-
nesses against him.” U.S. CONST. amend. VI.

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the state’s important interest in protecting the
confidentiality of a juvenile offender’s record.
Id. at 320.
It is curious that the state does not attempt
to distinguish these two Supreme Court cases
on which the magistrate judge rested her hold-
ing. Indeed, its brief does not mention either;
instead, it claims that in United States v. Ham-
ilton, 48 F.3d 149 (5th Cir. 1995), we held
that a judge is within his discretion to deny
cross-examination about a witness’s deferred
adjudication status. Two cases, both of which
are cited elsewhere in the state’s brief, plainly
show that this argument is meritless.
The proposition for which the state cites
Hamilton has been limited to instances in
which the witness is on deferred adjudication
for a misdemeanor.4 Edwards was charged
with a felony,5 so Hamilton is inapposite. Al-
so, Hamilton’s need to cross-examine the wit-
ness about his adjudicatory status was mitigat-
ed, because “Hamilton was permitted to elicit
evidence regarding the pending misdemeanor
offenses during the cross examination of an-
other witness.” Landerman, 109 F.3d at 1063
n.15. Robinson, unlike Hamilton, had no such
opportunity to demonstrate Edwards’s pend-
ing offense.
The trial court should have protected
Robinson’s constitutional right to cross-exam-
ine Edwards about her deferred adjudication
status and residency at the county jail at the
time of her testimony. The failure to do so
was contrary to clearly established Federal
law.
B.
“[I]mproper denial of a defendant’s oppor-
tunity to impeach a witness for bias, like other
Confrontation Clause errors, is subject to . . .
harmless-error analysis.” Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). Robinson
urges us to use the standard articulated in
Chapman v. California, 386 U.S. 18, 24
(1967), which holds that error is reversible un-
less it is “harmless beyond a reasonable
doubt.” On habeas review, however, we are
bound to apply Brecht v. Abrahamson, 507
U.S. 619, 637-38 (1993), under which a de-
fendant must show that the error resulted in
“actual prejudice.” Actual prejudice is present
if the error “had substantial and injurious effect
or influence in determining the jury’s verdict.”
Id. at 637 (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)).
Robinson claims that because the merits of
his Confrontation Clause claim were not con-
sidered on direct review, he never received the
benefit of the Chapman standard, and thus we
must apply it here. We have rejected this ar-
gument and the analysis of the Eighth Circuit
cases cited by Robinson, and we have held that
the Brecht standard applies on habeas review,
regardless of the claim’s treatment on direct
review. See Hogue v. Johnson, 131 F.3d 466,
498-99 (5th Cir. 1997).6 Under Brecht, “it is
4 See United States v. Alexius, 76 F.3d 642,
646 (5th Cir. 1996); United States v. Landerman,
109 F.3d 1053, 1063 n.15 (5th Cir. 1997).
5 Edwards was on deferred adjudication for
possession of cocaine under twenty-eight grams,
which is a felony under Texas law. See TEX.
HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D),
481.115(a), (d) (Vernon 2003).
6 The enactment of the Antiterrorism and Ef-
fective Death Penalty Act (“AEDPA”) did not
affect this holding. Robertson v. Cain, 324 F.3d
297, 299 (5th Cir. 2003) (“We hold that AEDPA’s
restrictions on federal review of state habeas
decisions do not alter Brecht’s mandate for harm-
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not for this court to decide whether we think
the jury’s verdict was correct; instead, the
question for the court is whether we have a
grave doubt that the constitutionally erroneous
instruction . . . had a substantial and injurious
effect or influence in determining the jury’s
verdict.” Robertson, 324 F.3d at 309 (internal
citations and quotations omitted).
C.
The magistrate judge found that the error
was harmless, and we agree. To make this de-
termination, we carefully consider the likelyef-
fect that Edwards’s deferred adjudication stat-
us and residency at the county jail would have
had if the jury had been empowered to give it
full consideration.
Robinson argues that the error was not
harmless because Edwards would have been
impeached if the cross-examination had been
permitted; the alleged criminal activity would
have damaged Edwards’s credibility. Further,
Robinson would have argued that the gun be-
longed to Edwards, who was prohibited from
possessing a firearm while on probation. Ed-
wards was thus motivated to lie about Robin-
son’s ownership of the gun, because she would
be punished for a probation violation if the
police discovered that the gun was hers. This
reasoning, however, does not overcome the
harmless error standard.
There are four reasons that, taken together,
convince us the error is harmless. First, Rob-
inson did not produce any evidence tying Ed-
wards to the gun. Second, Edwards was not
trying to avoid contact with law enforcement.
Third, Edwards’s credibility was impeached
through other means. Finally, Edwards’s tes-
timony was corroborated.
Robinson produced no evidence tying Ed-
wards to the gun. The trial court denied Rob-
inson’s requested cross-examination because,
among other reasons, Robinson “[hadn’t] even
established [that the gun belonged to Edwards]
in any way, shape, or form, not even close to
that.” And later in the trial, “[t]here’s nothing
to tie the gun to her. Nothing.” This connec-
tion is critical, because Robinson intended to
use Edwards’s status to show that unless she
lied and convinced the police that the gun be-
longed to Robinson she would be charged with
a probation violation. To be logically effec-
tive, however, this argument requires at least
some evidence showing that the gun could be-
long to Edwards, evidence Robinson could not
marshal. If there was no reasonable basis for
thinking that the gun belonged to Edwards, it
is unlikely she would feel compelled to lie to
avoid a probation violation for owning the
gun.
Second, Edwards was not trying to avoid
contact with the police. In fact, it was she
who made the 911 call that summoned them to
the house. Edwards also testified that Spikes
did not initially tell Vega about the gun but did
so only after Edwards’s prompting. Ed-
wards’s behavior does not indicate an over-
whelming intent to avoid interaction with pol-
ice about the gun. It is plausible that the jury
could even find that Edwards’s credibility was
bolstered by her status; despite the fact that
she was on probation, she initiated contact
with the police. The jury may have found that
if the gun was hers, she was unlikely to have
called 911 and to have encouraged Spikes to
report the gun to the officers, because these
actions would place her at risk of being found
in violation of her probation.
6(...continued)
less error analysis by federal courts when state
courts have failed to address the question of harm-
less error.”).

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Third, Edwards’s credibility was impeached
through other means. Robinson introduced
evidence that Edwards was not trustworthy
based on her theft conviction. He also demon-
strated that Edwards had sent Robinson ro-
mantic letters, which may have indicated that
her testimony was biased by a jealousy of
Spikes and a desire to see Spikes and Robin-
son separated. Though the introduction of Ed-
wards’s deferred adjudication status and resi-
dency in the county jail may have further dam-
aged her credibility, it would not be impeach-
ing otherwise reputable testimony, but only
adding one more reason to the two already
given to the jury as to why Edwards was not
credible.
Finally, as the magistrate judge found, Ed-
wards’s testimony was corroborated. Several
details of her testimony, including that the gun
belonged to Robinson, were corroborated by
Spikes’s report to Vega. Edwards’s and
Spikes’s accounts were corroborated by Ve-
ga’s testimony that Spikes showed visible
signs of being struck in the head, and that the
gun was in the pizza box.
At this stage of habeas review we do not
determine whether we think the jury verdict
was correct. We do not consider whether any
of the above reasons, standing alone, or even
any two or three of them together, would ren-
der the error harmless. But taking into ac-
count all four reasons, and adhering to the re-
quired standard of review, we do not have a
grave doubt that the trial court’s error had a
substantial and injurious effect or influence on
the verdict. Thus, under Brecht, this error was
harmless.
IV.
In summary, the trial court violated Robin-
son’s constitutional right to confront Edwards
about her deferred adjudication status and resi-
dence at the county jail at the time of her tes-
timony. This error, however, was harmless, so
we AFFIRM the denial of the petition. We al-
so DENY the motion for reconsideration of
our ruling on the timeliness of the reply brief.

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