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Click here for the full text of this decision FACTS:Joseph Lave was convicted of capital murder. At his trial a police officer testified about a statement one of Lave’s alleged accomplices made that Lave had committed the murder. Lave was convicted and sentenced to death. The Texas Court of Criminal Appeals affirmed the conviction, and the U.S. Supreme Court did not accept his case. Lave’s petition for state habeas corpus relief was also denied. Lave then filed for federal habeas relief. On the same day that the U.S. Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36 (2004), the magistrate judge recommended that Lave’s petition be denied. Lave filed objections to the report, arguing for the first time that the officer’s testimony violated his confrontation rights under the Sixth Amendment and Crawford. The district court denied the petition, holding that Crawford does not apply retroactively. Lave appeals on the single issue of whether Crawford appeals retroactively or not. HOLDING:Affirmed. The court first notes that a case should not apply a new rule of criminal procedure on collateral review unless it falls into one of two narrow categories: 1. rules forbidding punishment of certain primary conduct; or 2. rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. This second category, the court continues, is for watershed rules that implicate the fundamental fairness and accuracy of criminal proceedings. The court then finds that Crawford announced a new rule of criminal procedure because it changed the test for admissibility of certain out-of-court statements, and it imposed new obligations on state and federal court. The court disagrees with Lave, however, that the Crawford holding implicates the fundamental fairness and accuracy of criminal proceedings. The court finds Crawford overruled Ohio v. Roberts, 448 U.S. 56 (1980), when it came to the admissibility of out-of-court testimonial statements, but the court points out that such statements were not “indiscriminately presented to juries under the Roberts regime.” That is, even under Roberts, such statements could not be admitted unless they had an “indicia of reliability,” therefore, statements entered under the Roberts regime did not create an impermissible risk of false conviction. “By its own terms, Crawford does not purport to announce a rule that increases the reliability of trial testimony. . . . The rule announced in Crawford does not implicate the fundamental fairness and accuracy of criminal proceedings. While it may implicate the core of the confrontation right, it is not a rule without which there is an impermissibly high risk of false conviction.” Crawford should not be applied retroactively, and the district court did not abuse its discretion by refusing to stay the proceedings while Lave presented his Crawford claim to a state habeas court. OPINION:Garza, J.; Garza, DeMoss and Clement, JJ. DISSENT:DeMoss Jr., Circuit Judge. “[T]he Crawford majority makes clear that fundamental fairness is crippled to say nothing of affected by the absence of Crawford’s rule requiring confrontation, that is,”the only indicium of reliability sufficient to satisfy constitutional demands.’”

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