Jonathan Boyer v. Darrel Vannoy, Warden

Case: 16-30487 Document: 00514076018 Page: 1 Date Filed: 07/17/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fif h Circuit

No. 16-30487 FILED

July 17, 2017

Lyle W. Cayce

JONATHAN BOYER,

Clerk

Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

Before JOLLY, HIGGINBOTHAM, and GRAVES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Habeas petitioner Jonathan Boyer was convicted of second degree

murder and armed robbery with a firearm. He was accused of getting into a

truck with his brother, Anthony Boyer (“Anthony”), and shooting the driver

dead. Jonathan Boyer later confessed. Seven years after he was arrested, his

case went to trial, where Anthony testified for the State. Jonathan Boyer’s

defense was that Anthony—not Jonathan—pulled the trigger and that

Jonathan’s confession was false. Jonathan Boyer was convicted and

unsuccessfully pursued direct review, including being heard by the United

States Supreme Court, which ultimately dismissed the writ of certiorari as

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improvidently granted. Boyer then filed for federal habeas relief, which the

district court denied. He now appeals from that denial, making three claims:

(1) his Sixth Amendment right to speedy trial was violated; (2) his due process

and Confrontation Clause rights were violated when he could not cross-

examine Anthony on Anthony’s alleged violence; and (3) his rights to present

a complete defense and present witnesses were violated when his expert on

confessions and interrogations was barred from testifying. We AFFIRM.

I.

As summarized in the Louisiana appellate court decision affirming

Boyer’s convictions and sentences:

Late in the evening of February 4, 2002, Defendant and his

brother, Anthony Boyer, were walking along the roadway in

Sulphur, Louisiana. They were given a ride by Bradlee Marsh in

his truck. Defendant demanded money from Marsh. When Marsh

did not comply, Defendant shot him three times in the head.

Defendant then took Marsh’s money and a silver chain. Marsh died

as a result of the gunshot wounds. Defendant was apprehended in

Jacksonville, Florida, on March 8, 2002. 1

Boyer was questioned on the day of his arrest, during which he confessed

to killing Marsh. Seven years elapsed between Boyer’s arrest and trial. For the

first five years, Boyer faced a first degree murder charge, which made him

eligible for the death penalty and so also eligible for qualified capital defense.

For the following two years, Boyer faced a second degree charge after the State

reduced it.

A.

Summarizing seven years of pretrial proceedings is no simple task.

Because the reason for the delay is integral to a speedy trial analysis, we

1 State v. Boyer, 2010-693 (La. App. 3 Cir. 2/2/11); 56 So. 3d 1119, 1124.

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review the record in detail below, with emphasis on the dates. In our review,

we detect a common thread: both parties contributed to the delay.

On June 6, 2002, three months after Boyer’s arrest, the grand jury issued

a bill of indictment on first degree murder charges. The same day, Anthony

was indicted for obstruction of justice. On June 10, 2002, the court appointed

Tom Lorenzi as Boyer’s counsel. Arraignment was scheduled for July 1, 2002,

but at request of defense counsel was rescheduled for September 9, 2002. On

September 9, 2002, Boyer pleaded not guilty and requested a trial by jury. The

court scheduled the trial for February 3, 2003. Around the same time, Anthony

pleaded guilty to obstruction of justice.

On November 12, 2002, Attorney Lorenzi submitted a Motion to

Determine Source of Funds for Boyer’s defense. For the next two and a half

years, the court continuously pushed back both the funding hearing and the

trial. We note that contrary to the State’s insistence during oral argument, it

was in agreement with many of the motions to continue. On January 10, 2003,

Attorney Lorenzi submitted a letter notifying the court of scheduling problems

for the January 17, 2003 hearing. The record indicates that Attorney Lorenzi

sought the State’s agreement in continuing the hearing. On January 17, 2003,

the minutes reflect that “[o]n motion of [the] Asst. District Attorney . . . the

Court orders a Motion to Determine Source of Funding passed without date.”

On February 3, 2003, Boyer was determined “available for trial,” and Attorney

Lorenzi moved to continue without objection from the State. The trial was

rescheduled for September 29, 2003.

Defense counsel submitted a motion to continue the funding hearing

because “the issue may be deemed premature pending a decision by the 14th

Judicial District Indigent Defender Board which will not meet until August 26,

2003 to consider defense counsel’s statement for services rendered and a

proposed agreement for payment.” The motion to continue was granted. The

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minutes from August 15, 2003 reflect that “[o]n motion of [the] Asst. District

Attorney . . . upon request of defense counsel . . . the Court orders a Motion to

Determine Source of Funding refixed for September 19, 2003[.]”

On September 12, 2003, the court ordered that the funding hearing and

trial be continued, based on defense counsel’s motion “for the reason that the

Indigent Defender Board . . . is not scheduled to meet to make a decision

critical to the determination of a source of funds until September 30, 2003.”

The order states that defense counsel “was authorized by . . . [the] Assistant

District Attorney, to advise this Honorable Court that the State of Louisiana

does not object to the granting of a continuance” on the funding hearing or trial.

From November 2003 to January 2004, the funding hearing was

repeatedly continued. 2 On February 9, 2004, the minutes reflect that “[o]n

motion of [the] Asst. District Attorney . . . the Court orders motions fixed for

hearing on April 2, 2004” and moreover, “the State . . . announced its intent to

seek the death penalty.” On April 2, 2004, the minutes reflect that “[o]n motion

of [the] Asst. District Attorney . . . the Court orders the Motion to Determine

Source of Funding passed without date.” On June 21, 2004, the minutes reflect

that “[o]n motion of [the] Asst. District Attorney . . . the Court orders the Notice

of Intent Funding hearing fixed for August 19, 2004[.]”

On August 17, 2004, defense counsel submitted a letter to the court

advising that counsel for the Calcasieu Parish Police Jury moved to continue

2 On November 26, 2003, the minutes reflect that “[o]n motion of [the] Asst. District

Attorney . . . the Court orders the Motion for Funding hearing refixed for December 17,

2003 . . . with the Clerk’s Office to notify [defense counsel][.]” On December 17, 2003, the

court granted the defense’s written motion to continue and the minutes reflect that “[o]n

motion of [the] Asst. District Attorney . . . the Court orders the hearing on the defendant’s

Motion for Funding upset and refixed for January 16, 2004 . . . with the Clerk’s Office to

notify [defense counsel].” On January 16, 2004, the minutes reflect “[o]n motion of [the] Asst.

District Attorney . . . the Court orders the Motion to Determine Source of Funds passed

without date.”

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the funding hearing scheduled for July 19, 2004 due to a family member’s

medical treatment. Defense counsel noted that he did not oppose the motion.

On August 19, 2004, the minutes reflect that the assistant district attorney

“advise[d] the Court that a Motion to Continue the funding hearing was

previously filed and the funding hearing will be rescheduled at a later date.”

On July 1, 2005, the minutes reflect that “[o]n motion of [the] Asst. District

Attorney . . . the Court orders the funding hearing in this matter refixed for

July 15, 2005 . . . with the Clerk’s Office to notify defense counsel[.]”

On July 7, 2005, Boyer submitted a motion to quash the indictment

based on the state statutory time limit (the “prescription claim”) and a

constitutional speedy trial violation (the “constitutional claim”). Since it had

been more than three years since his indictment, Boyer argued, “the statutory

prescription period [under Louisiana law] for the commencement of the trial

for the 2002 killing [had] now run.” Boyer contended the delay was “due to the

state’s egregious failure to locate money to pay for Mr. Boyer’s defense,” and

that Boyer “ha[d] filed no motions on his own behalf other than a motion to

identify a source of funding as required by State v. Wigley, 624 So. 2d 425,426

(La. 1993).” Boyer maintained that the delay also violated his constitutional

right to a speedy trial.

On July 15, 2005, the court ordered the funding motion, the motion to

enforce the plea bargain, and the motion to quash “refixed without date.” Boyer

made the motion to continue based on needing sufficient time to issue

subpoenas, which the State did not oppose. Almost a week later on July 21,

2005, on the State’s motion, the court scheduled the funding hearing to

September 22, 2005. Hurricane Katrina struck in August 2005 followed by

Hurricane Rita in September 2005, and as a result of difficulties subpoenaing

witnesses and contacting co-counsel in New Orleans, the hearing was pushed

back again. On February 22, 2006, on the State’s motion, the court scheduled

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the funding hearing for March 27, 2006. This date—more than three years

after defense counsel first filed the Motion to Determine Source of Funding—

stuck.

After the funding hearing, during which only defense counsel called

witnesses and introduced evidence, the court deferred its ruling and stated it

would schedule another hearing for a later date. Defense counsel objected.

On November 20, 2006, a hearing was held on Boyer’s Motion to Quash

based on the delay, during which Attorney Lorenzi argued only the statutory

claim. The defense moved to dismiss without prejudice its constitutional claim,

arguing that “to do otherwise makes us even more ineffective counsel by virtue

of trying to go forward with the hearing that we cannot be prepared to go

forward with.” Attorney Lorenzi expressed that his office had been “cobbling

together as best [they] [could],” but that it was the State’s obligation to fund

the defense. An attorney for the State responded that Boyer was not ready to

begin trial, and that “[e]verything that’s been done to delay this case has been

done by the Defense.” The State also noted its consideration of amending the

charges to second degree murder and armed robbery, which would “greatly

decrease the amount of funds that are necessary.”

The trial court denied Boyer’s motion to quash, finding that the defense

had caused the funding motion to be delayed by asking for continuances, and

that the motion to determine source of funding constituted a preliminary plea

suspending the prescriptive period. Boyer noticed an appeal. The court

alternatively denied the motion to quash because the limitation period was

interrupted for a cause beyond the state’s control.

On January 3, 2007, Boyer appealed to the third circuit court of appeals

to challenge the trial court’s November 20, 2006 ruling denying his motion to

quash. Boyer’s arraignment was scheduled for February 26, 2007, but perhaps

unsurprisingly by now, was rescheduled for May 21, 2007.

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B.

On May 21, 2007, on the State’s motion, the court ordered the indictment

amended to second degree murder and added a charge for armed robbery with

a firearm. 3 Boyer pleaded not guilty and requested a jury trial. On the State’s

motion, the court set trial for October 29, 2007, to which the defense objected.

The court relieved Attorney Lorenzi of his appointment in the case and

appointed Attorney James Burks. Attorney Lorenzi requested the court to set

a hearing date on the pending funding issue, to which the court instructed

Attorney Lorenzi to bill the Indigent Defender Board. On July 19, 2007, the

court granted Attorney Burks’s motion to withdraw and replaced him with

Attorney Lehmann.

Meanwhile, on August 22, 2007, the state appellate court affirmed the

trial court’s denial of the defense’s motion to quash for delay, finding:

[t]he State’s decision to reduce the charge from first degree

murder to second degree murder does not reset the time limitation

for bringing Defendant to trial. However, the inability to

prosecute Defendant because of the lack of funding was a “cause

beyond the control” of the District Attorney’s Office, and therefore

the time limitation had been interrupted. La. Code Crim. P. art.

579(A)(2). Accordingly, there was no error with the trial court’s

ruling. 4

On September 21, 2007, Boyer appealed to the state Supreme Court. His

argument focused on the prescription issue, but in doing so Boyer also made

constitutional arguments. In October 2007, the State responded, also making

some constitutional arguments. The Louisiana Supreme Court denied Boyer’s

application for writ. 5

3 During oral argument, the State represented that it filed this motion at least in part

to solve the funding impasse.

4 One judge abstained.

5 State v. Boyer, 2007-1896 (La. 11/16/07), 967 So. 2d 526.

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Back in the trial court, with new defense counsel in place, the court

proceeded to address a variety of motions, including yet more motions to

continue the trial. In September 2007, the defense successfully moved to recuse

Judge Ritchie. On December 12, 2007, on the State’s motion, the court

rescheduled the trial for February 11, 2008.

On January 22, 2008, Boyer filed a second motion to quash the

indictment based on violation of his speedy trial right, which included a

request for an evidentiary hearing. About a week later, the court held a

hearing, during which defense counsel orally requested an evidentiary hearing

on his constitutional claim “[t]o submit information about the prejudice that

Mr. Boyer has suffered as a result of being denied his Constitutional Right to

a speedy trial.” The State maintained that the constitutional claim had already

been appealed up through the state Supreme Court. The court ordered the

State to respond and deferred its ruling.

The defense also renewed its motion to quash based on its prescription

claim, to which the court gave the State time to respond. Moreover, the court

granted the defense’s motion to continue the trial, and rescheduled it for May

19, 2008, despite the State announcing it was ready. The court ordered all pre-

trial motions scheduled for hearing on February 22, 2008.

After two additional unopposed continuances, the court convened on

April 29, 2008 to address various pre-trial motions. Notably, the court denied

Boyer’s motion to quash the indictment based on his constitutional claim and

his motion to quash based on his prescription claim. Defense counsel did not

reassert their request for an evidentiary hearing.

On May 19, 2008, defense moved for supplemental discovery and moved

to continue. The court granted the motion to continue and rescheduled trial for

September 29, 2008.

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On July 18, 2008, defense counsel expressed concerns about Boyer’s

competency to proceed that day and his ability to assist, although stated they

were not requesting a sanity commission. The court nevertheless appointed a

sanity commission. After a competency hearing on August 6, 2008, the court

ordered Boyer committed to the Eastern Louisiana Mental Health System and

scheduled a status conference in six months. On March 6, 2009, the State

moved to re-appoint a sanity commission, which the court ordered in addition

to scheduling a contradictory hearing. On April 15, 2009, the court found Boyer

competent to proceed to trial, and trial was scheduled for September 21, 2009.

On September 11, 2009, the court convened to consider several motions,

including a “Motion in Limine to Exclude Evidence of False Confessions” and

a “Motion for Daubert 6 Hearing on any Defense Evidence on False

Confessions,” among others. Defense counsel represented that its expert, Dr.

Solomon Fulero, would testify

to explain what the science of psychology has worked, developed,

and knows is an expert science about the existence of false

confessions, the factors that create vulnerability in individuals to

false confession and the situational factors in interrogations or

other circumstances that can lead to false confessions to educate

and assist the jury in assessing the weight to be given to the

evidence of confessions the State intends to lead in this case.

Defense counsel explained that it did not intend to call Dr. Fulero “to

give an ultimate conclusion as to whether this confession and the confessional

statements made in this case were false or not.” The State responded that false

confession evidence was irrelevant, would cause confusion, and would waste

time. The State contended that Boyer’s confession was already ruled

admissible, and it was the jury’s role to determine its credibility. Therefore,

the State maintained, a Daubert hearing was unnecessary.

6 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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The court allowed the defense to question Dr. Fulero to establish him as

an expert. The State then questioned Dr. Fulero on whether there was a

scientifically reliable method to determine if a confession is true or false, to

which Dr. Fulero answered there was not, and that that question is for the

jury. Defense re-examined Dr. Fulero in an attempt to show “a recognized

subspecialty within forensic psychology dealing with the psychology of

interrogations and false confessions,” given the State’s objection to there being

“an expert in the field of false confessions.” Ultimately, the court accepted Dr.

Fulero as an expert in “Forensic Psychology with emphasis in the general field

of interrogations and confessions.” It further found the Daubert standard

satisfied, and concluded that Dr. Fulero could testify within certain confines.

Although the trial court found Dr. Fulero’s testimony admissible, the appellate

court later reversed on interlocutory appeal.

On September 21, 2009, the court convened to hear several motions,

including Boyer’s motion to reconsider his denied speedy trial motion, which

was denied.

C.

The trial began on September 22, 2009. Several witnesses testified for

the State, one of whom was Jonathan Boyer’s brother, Anthony. Boyer’s

defense pointed to Anthony as the actual murderer. During Anthony’s cross-

examination, defense counsel questioned Anthony about his plea deal with the

State for testifying, his felony conviction for obstruction of justice, and his prior

misdemeanor charges including one for simple battery. Defense counsel then

asked Anthony: “And there was also an incident last year involving your wife,

Rhonda; wasn’t it?” The State immediately objected, arguing that the

credibility of a witness cannot be impeached with a non-conviction. The court

heard argument and sustained the objection because there was no pending

charge against Anthony.

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On September 29, 2009, Boyer was convicted of second degree murder

and armed robbery with a firearm. 7 The jury was unanimous as to the armed

robbery with a firearm count, but eleven-to-one on the second degree murder

count. Boyer was sentenced to life in prison without the possibility of parole. 8

On appeal, the Louisiana Third Circuit Court of Appeals affirmed. 9 We

review the state appellate court’s reasoning with respect to each of the three

claims before us now. 10

Analyzing Boyer’s speedy trial claim pursuant to Barker v. Wingo’s four-

factor test, the state appellate court held there was no speedy trial violation.

The Barker factors are: “the length of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.” 11 As to the

first factor, the state appellate court concluded, “[t]he length of the delay in the

instant case was presumptively prejudicial.” 12 As to the second factor, it

concluded, “[t]he largest part of the delay involved the ‘funding crisis’

experienced by the State of Louisiana.” 13 The state appellate court found that

between the charge being reduced to second degree murder in May 2007

through the start of trial in September 2009:

Defendant filed more than thirty motions to be litigated, including

two motions to recuse the trial judge and several evidentiary

motions which required testimony from witnesses. However, the

motions filed by Defendant appeared to be legitimate motions and

not filed for the purpose of delay of trial, and Defendant’s

7 Boyer, 56 So. 3d at 1124.

8 Id.

9 Id. at 1162.

10 For purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA), the

state appellate court decision is the state court decision that the federal habeas courts review.

Woodfox v. Cain, 772 F.3d 358, 369 (5th Cir. 2014) (“Under AEDPA, ‘we review the last

reasoned state court decision.’” (citation omitted)).

11 Boyer, 56 So. 3d at 1139 (referring to Barker v. Wingo, 407 U.S. 514 (1972)); accord

United States v. Molina-Solorio, 577 F.3d 300, 304 (5th Cir. 2009).

12 Boyer, 56 So. 3d at 1141.

13 Id. at 1142.

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incompetency to proceed to trial for a period of nine months cannot

be attributed to either the State or Defendant as a delaying

tactic. 14

As to the third factor, the state appellate court found, “Defendant did not

assert his state and federal right to a speedy trial until after the three year

statutory prescription had tolled.” 15 The court noted that “with more than a

year in between the filing of the two motions to quash, Defendant’s assertions

of the statutory and speedy trial rights were more perfunctory than

aggressive.” 16 With respect to the fourth and final factor, prejudice to the

defendant, the state appellate court reasoned that Boyer did not explain how

unavailable witnesses or evidence would have affected his trial, and that Boyer

did not explain what job he alleged he lost due to the prosecution. 17 It also

noted Boyer’s assertions that the delay led to his mental breakdown and

impaired effective assistance of counsel, but did not explicitly credit or reject

those arguments. 18

Upon reviewing the four factors, the appellate court concluded that

Boyer’s right to a speedy trial was not violated. It found the length of time to

be “presumptively prejudicial,” but concluded, “the remaining Barker factors

were not present[.]” 19 Notably, the appellate court found that while Boyer was

incarcerated based on the first degree murder charge, “the progression of the

prosecution was ‘out of the State’s control’ as determined by this court and the

supreme court.” 20

14 Id. at 1142–43.

15 Id. at 1143.

16 Id.

17 Id. at 1143–44.

18 Id.

19 Id. at 1144.

20 Id. at 1145. Although the appellate court states this was during “[t]he first three

years [Boyer] was incarcerated,” this is likely a typographical error, given that Boyer was

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Boyer also appealed the trial court’s evidentiary ruling that prohibited

Boyer from cross-examining Anthony on the alleged domestic violence and on

the lack of charges associated with those allegations. The state appellate court

affirmed, concluding:

that the trial court did not abuse its discretion when it refused to

allow Defendant to question the witness about an incident which

did not result in a pending charge or conviction and where there

was no prospect of prosecution. Louisiana Code of Evidence Article

608(B) provides that “[p]articular acts, vices or courses of conduct

of a witness may not be inquired into or proved by extrinsic

evidence for the purpose of attacking his character for

truthfulness, other than conviction of crime as provided in Articles

609 and 609.1 or as constitutionally required.” Further, any

relevance of the domestic abuse complaint was substantially

outweighed by the possibility of prejudice, confusion of the issue,

or misleading of the jury. 21

Finally, the state appellate court reversed the trial court’s ruling

regarding Dr. Fulero, referring to its reasoning in its earlier interlocutory

decision, which stated:

Allowing expert testimony regarding “false confessions” invades

the province of the jury. The jury is most capable of ascertaining

the truth and validity vel non of confessions--not experts. Allowing

such testimony by incrementally allowing experts to eventually

testify as to the guilt or innocence of the defendant cannot be

allowed.

D.

Boyer appealed to the Louisiana Supreme Court, which denied his

petition for writ of certiorari. Boyer then appealed to the United States

Supreme Court, which granted a writ of certiorari on his speedy trial claim, 22

incarcerated on the first-degree murder charge for the first five years, which the state

appellate court acknowledges elsewhere in its decision, Boyer, 56 So. 3d at 1124.

21 Id. at 1129–30.

22 Boyer v. Louisiana, 133 S.Ct. 420 (2012).

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specifically on whether a delay in defense counsel funding is attributable to the

State for speedy trial purposes. 23 After oral argument, the Court held in a one-

line per curiam opinion: “The writ of certiorari is dismissed as improvidently

granted.” 24

Justice Alito, joined by Justices Scalia and Thomas, concurred,

suggesting that the record showed that most of the delay was caused by the

defense, not a systemic breakdown in Louisiana’s payment to counsel:

The attorneys from the [Louisiana Capital Assistance Center]

were paid by the State, but there was confusion about which

branch of the state government was responsible for paying Mr.

Lorenzi’s fees. The trial court promptly scheduled a hearing on

that preliminary matter, but the hearing was repeatedly put off at

the urging of the defense. Over the course of more than three years,

the defense requested that the hearing be continued on eight

separate occasions, causing a total delay of approximately 20

months. The trial court also issued several other continuances

without any objection from the defense, delaying the hearing an

additional 15 months. And just when it seemed that the hearing

would finally be held, Hurricane Rita forced the Calcasieu Parish

Courthouse to close. 25

Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan,

dissented, explaining that the state appellate court found that the delay was

due to lack of funding. 26 The dissent reasoned that Barker “requires that a

delay caused by a State’s failure to provide funding for an indigent’s defense

must count against the State, and not the accused.” 27 It recited Barker’s

language directing that a “neutral reason” for delay, like “‘overcrowded courts’”

should be weighed against the State, because ‘the ultimate responsibility for

23 Boyer v. Louisiana, 133 S. Ct. 1702, 1702 (2013) (per curiam) (Alito, J., concurring).

24 Id. (majority opinion)

25 Id. at 1703 (Alito, J., concurring).

26 Id. at 1708 (Sotomayor, J., dissenting).

27 Id. at 1706.

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such circumstances’ lies squarely with the state system as a whole.” 28 It also

cited Vermont v. Brillon, 29 stating that the Court there applied “similar logic,”

in indicating that “‘[d]elay resulting from a systemic breakdown in the public

defender system, could be charged to the State’ as well.” 30 The dissent reasoned

that a state’s failure to fund indigent defense is “no different.” 31

Thereafter, Boyer sought federal habeas relief in the federal district

court, which was denied. 32 A certification of appealability was granted. Of his

five claims of error in his original habeas petition, Boyer presses three on

appeal: (1) the Sixth Amendment speedy trial claim; (2) the claim concerning

the exclusion of evidence about Anthony’s alleged violence; and (3) the claim

concerning the exclusion of Boyer’s confessions and interrogations expert.

II.

The district court had jurisdiction under 28 U.S.C. § 2254, and this Court

has jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. “We review the

district court’s findings of fact for clear error and review its conclusions of law

de novo, applying the same standard of review to the state court’s decision as

the district court.” 33 Additionally, “[f]ederal habeas proceedings are subject to

the rules prescribed by [AEDPA].” 34 Thus, a federal court may not grant

habeas relief unless the state court’s adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

28 Id. (citation omitted).

29 556 U.S. 81 (2009).

30 Id. (citation omitted).

31 Id. at 1706–07 (citation omitted).

32 The State stated that Boyer’s April 29, 2014 petition was timely filed and adequately

exhausted. On January 14, 2016, the Magistrate Judge recommended the petition be denied.

Over Boyer’s objections, the district court adopted the Report and Recommendation.

33 Higginbotham v. Louisiana, 817 F.3d 217, 221 (5th Cir. 2016) (per curiam) (quoting

Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007)).

34 Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015) (citing 28 U.S.C. § 2254)).

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(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding. 35

“This is a ‘difficult to meet,’ and [a] ‘highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be

given the benefit of the doubt.’” 36 Under 28 U.S.C. § 2254(d)(1), the “‘clearly

established’ phrase ‘refers to the holdings, as opposed to the dicta, of this

Court’s decisions as of the time of the relevant state-court decision.’ In other

words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing

legal principle or principles set forth by the Supreme Court at the time the

state court renders its decision.” 37 Furthermore, “§ 2254(d)(1)’s ‘contrary to’

and ‘unreasonable application’ clauses have independent meaning.” 38 “A state

court’s decision is deemed contrary to clearly established federal law if it

reaches a legal conclusion in direct conflict with a prior decision of the Supreme

Court[,] . . . if it reaches a different conclusion than the Supreme Court based

on materially indistinguishable facts[,]” 39 or “if the state court applies a rule

different from the governing law set forth in our cases[.]” 40 “A state court’s

decision constitutes an unreasonable application of clearly established federal

law if it is ‘objectively unreasonable.’” 41

35 28 U.S.C. § 2254(d).

36 Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

37 Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003) (citations omitted); accord Marshall

v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (per curiam) (“[T]he lack of a Supreme Court decision

on nearly identical facts does not by itself mean that there is no clearly established federal

law, since ‘a general standard’ from this Court’s cases can supply such law.” (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

38 Bell v. Cone, 535 U.S. 685, 694 (2002) (citation omitted).

39 Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010) (citing Williams v. Taylor, 529 U.S.

362, 404–08 (2000)).

40 Bell, 535 U.S. at 694 (citation omitted); accord Gray, 616 F.3d at 439.

41 Gray, 616 F.3d at 439 (citing Williams, 529 U.S. at 409).

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Under § 2254(d)(2), “when a federal habeas petitioner challenges the

factual basis for a prior state-court decision rejecting a claim, the federal court

may overturn the state court’s decision only if it was ‘based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” 42 “The prisoner bears the burden of rebutting the state court’s

factual findings ‘by clear and convincing evidence.’” 43

III.

A.

We begin with Boyer’s speedy trial claim. The Sixth Amendment

guarantees the right to a speedy trial. 44 In analyzing whether this right has

been violated, the Supreme Court in Barker v. Wingo adopted “a balancing test,

in which the conduct of both the prosecution and the defendant are weighed.” 45

The Barker Court identified four factors for a court to assess: “[l]ength of delay,

the reason for the delay, the defendant’s assertion of his right, and prejudice

to the defendant.” 46

Boyer asserts that waiting five years for effective appointment of counsel

and seven years before trial violates his right to a speedy trial. 47 He argues the

42 Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (quoting 28 U.S.C. § 2254(d)(2)).

43 Id. (quoting 28 U.S.C. § 2254(e)(1)).

44 The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

45 Barker, 407 U.S. at 530.

46 Id.

47 At times Boyer also asserts the decision violated his due process rights, but does not

elaborate on this assertion.

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delay was caused by the “systemic breakdown” of Louisiana’s indigent defense

system, which, for speedy trial purposes, is attributable to the state. Among

other cases, Boyer points to the dissent in Boyer v. Louisiana (his case on direct

appeal), which found the state appellate court’s Barker analysis to be “based

on a critical misapprehension of [Supreme Court] precedents.” 48 Additionally,

Boyer claims he is entitled to an evidentiary hearing on the matter. 49

The State responds that Boyer was always represented by counsel, and

that this Court has no need to grant relief that the U.S. Supreme Court has

already rejected. The State claims that the state appellate court’s analysis was

proper under Barker v. Wingo. 50 Although the State acknowledges that lack of

funding posed problems below, it also argues that Hurricanes Katrina and Rita

complicated the “troubled” funding system. Finally, the State rejects Boyer’s

entitlement to an evidentiary hearing because, even if there was a factual

dispute as to one factor, it argues, “none of the other Barker factors are

present.”

In Goodrum v. Quarterman, we explained that “[b]ecause the state

appellate court properly identified the Barker test as the framework for

analyzing Goodrum’s speedy trial claim, AEDPA limits our focus to the

objective reasonableness of the result of the state court’s balancing of the

Barker factors under the facts in Goodrum’s case.” 51 “Nonetheless,” like in

Goodrum, “to facilitate our evaluation of the reasonableness of the state court’s

48 Quoting Boyer, 133 S. Ct. at 1707 (Sotomayor, J., dissenting).

49 During oral argument, Boyer’s counsel summarized other cases occurring in the

time period of Boyer’s pretrial, which he urged help explains the delay. He argued that

Attorney Lorenzi could testify to such proceedings at an evidentiary hearing.

50 Indeed, the State adopted the reasoning of the state appellate court.

51 Goodrum v. Quarterman, 547 F.3d 249, 257 (5th Cir. 2008) (citations omitted).

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decision, we will conduct a limited review of the state court’s analysis of each

Barker factor.” 52

Regarding the first Barker factor of length of delay, the state appellate

court found Boyer’s seven year pre-trial incarceration to be “presumptively

prejudicial.” 53 This was the only of the four factors that the state appellate

court found was “present.” Regarding the second factor, the reason for the

delay the state appellate court concluded, “[t]he majority of the seven-year

delay was caused by the ‘lack of funding.’” 54 The court also found “the motions

filed by Defendant appeared to be legitimate motions and not filed for the

purpose of delay of trial.” 55 Regarding the third Barker factor, the defendant’s

assertion of his speedy trial right, the state appellate court concluded that

Boyer’s “assertions of the statutory and speedy trial rights were more

perfunctory than aggressive.” 56 And regarding the fourth and final Barker

factor, prejudice to the defendant, the state appellate court questioned Boyer’s

claims that he was prejudiced by the delay in the form of his lost job, mental

breakdown, loss of evidence, and denial of effective assistance of counsel. For

instance, the court found, “[e]xcept for . . . two witnesses . . . Defendant did not

52 Id.

53 Boyer, 56 So. 3d at 1141. “[T]he length of the delay[] consists of a two-part inquiry.

First, the delay must be extensive enough to give rise to a presumption of prejudice that

triggers examination of the remaining Barker factors . . . If this threshold showing is made,

the court must examine the extent to which the delay extends beyond the bare minimum

required to trigger a Barker analysis, because ‘the presumption that pretrial delay has

prejudiced the accused intensifies over time.’” Goodrum, 547 F.3d at 257–58 (citations

omitted) (2 ½ year delay presumptively prejudicial and reasonably weighed “heavily” in

defendant’s favor).

54 Boyer, 56 So. 3d at 1142.

55 Id. at 1142–43 (also noting the “Defendant’s incompetency to proceed to trial for a

period of nine months cannot be attributed to either the State or Defendant as a delaying

tactic”).

56 Id. at 1143.

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reveal the contents of the unavailable witnesses’ testimonies or how the

evidence would have affected the outcome of the trial.” 57

The “determinative question” is “whether the state court unreasonably

concluded that the balance of all four Barker factors in this case does not

establish a violation of the speedy trial right.” 58 We find that the state

appellate court’s conclusion was not unreasonable. Regarding the first factor,

the state appellate court found that the length of delay was presumptively

prejudicial, which is reasonable given the seven year time period between

arrest and trial. 59 Regarding the third and fourth factors—Boyer’s assertion of

his right and prejudice—Boyer argues that he “asserted his claim at the

earliest procedural opportunity available under Louisiana law for a defendant

unable to assert his readiness to proceed to trial.” 60 Moreover, Boyer did not

have fully-funded counsel for the first years of his pre-trial custody, as the state

appellate court decision implicitly acknowledges. 61 Although jurists could

disagree with the state appellate court’s decision finding these factors not

“present,” they are not objectively unreasonable. A reasonable jurist could

draw such conclusions based on the timing of Boyer’s motions to quash, 62 and

57 Id. (citation omitted).

58 Goodrum, 547 F.3d at 265.

59 Doggett v. United States, 505 U.S. 647, 652 (1992) (“[T]he presumption that pretrial

delay has prejudiced the accused intensifies over time.”); accord id. at 655–56 (recognizing

“that excessive delay presumptively compromises the reliability of a trial in ways that neither

party can prove or . . . identify” and that the importance of presumptive prejudice “increases

with the length of delay” (citation omitted)).

60 Citing LA. C. CR. P. ART. 578(A); LA. C. CR. P. ART. 701(F).

61 Boyer, 56 So. 3d at 1143 (“During the three-year time limitation period the only

consideration addressed was the funding issue.”).

62 For example, the state appellate court correctly pointed out that there was “more

than a year in between the filing of the two motions to quash[.]” Id. Moreover, Boyer

dismissed his motion to quash based on a constitutional violation during the November 20,

2006 hearing and did not reassert it again until January 2008.

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the arguable lack of concrete prejudice that Boyer has shown. 63 Accordingly,

the state appellate court’s decision with respect to the first, third, and fourth

Barker factors is not objectively unreasonable.

The state appellate court errs, however, in its analysis of the second

factor. The reason for the delay is “[t]he flag all litigants seek to capture[.]” 64

“Barker instructs that ‘different weights should be assigned to different

reasons,’ and in applying Barker, we have asked ‘whether the government or

the criminal defendant is more to blame for th[e] delay.’” 65 While “[d]eliberate

delay ‘to hamper the defense’ weighs heavily against the prosecution[,]” 66 “[a]

more neutral reason such as negligence or overcrowded courts should be

weighted less heavily but nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the government rather

than with the defendant.” 67 On system-wide causes for delays, the Supreme

Court has noted that “[d]elay resulting from a systemic ‘breakdown in the

public defender system,’ could be charged to the State.” 68 The state appellate

63 For example, Boyer argues that he “presented affidavits from counsel’s lead

investigator demonstrating that as a result of the delay [several] important witnesses were

unavailable.” However, the state appellate court found that Boyer “did not relate the

substance of the missing witnesses’ anticipated testimonies either at the April 19, 2008

hearing on his January 2008 motion to quash or in brief to [that] court. Except for . . . two

witnesses [whose statements were deemed to be inadmissible hearsay], Defendant did not

reveal the contents of the unavailable witnesses’ testimonies or how the evidence would have

affected the outcome of the trial.” Boyer, 56 So. 3d at 1143 (citation omitted)). Such reasoning

is not objectively unreasonable.

64 United States v. Loud Hawk, 474 U.S. 302, 315 (1986).

65 Brillon, 556 U.S. at 90 (quoting Barker, 407 U.S. at 531; Doggett, 505 U.S. at 651).

66 Id. (citation omitted).

67 Barker, 407 U.S. at 531 (1972); accord Doggett, 505 U.S. at 657 (“Although

negligence is obviously to be weighed more lightly than a deliberate intent to harm the

accused’s defense, it still falls on the wrong side of the divide between acceptable and

unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the

nature of the prejudice presumed that the weight we assign to official negligence compounds

over time as the presumption of evidentiary prejudice grows.”).

68 Brillon, 556 U.S. at 94 (citation omitted).

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court found that Boyer’s motions were not filed with the intention of delay, 69

and in fact the majority of the delay was caused by funding problems. 70 This

lack of funding should have been weighed against the state. Instead of doing

so, the state appellate court found that “the progression of the prosecution was

‘out of the State’s control,” and noted “there [was] nothing before this court to

suggest that the State acted to delay the trial to gain any advantage.” 71 This

failure misapplied Supreme Court precedent. 72 Still, because there is no

evidence of deliberate delay, the State’s funding problems do not weigh heavily

against the State. 73 This dampens the error’s effect on the overall outcome of

the balancing test.

Importantly, “the state court’s preliminary conclusions regarding one or

more of the factors, even if contrary to or objectively unreasonable in light of

controlling Supreme Court precedent, are insufficient to grant habeas relief, so

long as we find the ultimate decision reached by the state court not objectively

unreasonable.” 74 Here, although the state appellate court erred by failing to

weigh the lack of funding against the State in its speedy trial analysis, this

error does not satisfy AEDPA’s requirements for habeas relief under 28 U.S.C.

§ 2254(d)(1). “‘[F]airminded jurists could disagree’ on the correctness of the

state court’s decision” 75 that the balance of the four Barker factors did not

result in a speedy trial violation. The state appellate court’s conclusions on the

69 Boyer, 56 So. 3d at 1142–43.

70 Id. at 1142.

71 Id. at 1145.

72 The district court made the same error when it stated, “the funding issue, a major

cause of delay, was not attributable to the prosecution or the trial court.”

73 Barker, 407 U.S. at 531; accord Goodrum, 547 F.3d at 258 (“Between these extremes

fall unexplained or negligent delays, which weigh against the state, ‘but not heavily.’”

(citation omitted)).

74 Goodrum, 547 F.3d at 257 (citation omitted).

75 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough, 541 U.S. at

664).

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first, third, and fourth factors were reasonable, and its error on the second

factor did not so severely alter the scales that we can say the resulting balance

was “objectively unreasonable.”

Turning to § 2254(d)(2), despite some of his brief headings asserting the

state appellate court’s decision was “based on an unreasonable determination

of the facts,” Boyer does not elaborate on why this is the case. He therefore

abandons the argument. 76 But in any case, the argument fails. First, Boyer’s

challenge is less a challenge to the factual basis of the state appellate court’s

decision than it is to its legal analysis. 77 Indeed, the appellate court’s most

obvious error—failing to weigh the lack of funding against the State in its

speedy trial analysis—is a legal one. Furthermore, Boyer has not rebutted any

challenged factual findings “‘by clear and convincing evidence.’” 78 Boyer thus

cannot obtain habeas relief under 28 U.S.C. § 2254(d)(2).

Finally, Boyer claims he requested an evidentiary hearing in both state

and federal court to determine how the lack of funding affected the seven-year

delay, and that the district court erred by not granting him such a hearing. We

conclude that an evidentiary hearing is not warranted on the question whether

the delay was caused by the lack of funding. The state appellate court decision

found that it was, 79 and that factual finding is due deference under 28 U.S.C.

§ 2254(e)(1) 80 notwithstanding the conclusion of three Supreme Court justices

76 Davis v. Davis, 826 F.3d 258, 266 (5th Cir. 2016) (“Issues submitted to this Court

that are inadequately briefed are considered abandoned.” (citation omitted)); FED. R. APP. P.

28(a)(8)(A) (argument on appeal must contain “contentions and the reasons for them, with

citations to the authorities and parts of the record on which the appellant relies”).

77 Burt, 134 S. Ct. at 15.

78 Id. (quoting 28 U.S.C. § 2254(e)(1)).

79 Boyer, 56 So. 3d at 1142.

80 28 U.S.C. § 2254(e)(1) provides: “In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.”

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to the contrary. 81 We note that in that decision the Supreme Court was not

constrained by AEDPA’s deference requirements. “We may not characterize

these state-court factual determinations as unreasonable ‘merely because [we]

would have reached a different conclusion in the first instance.’” 82 “Instead,

§ 2254(d)(2) requires that we accord the state trial court substantial deference.

If [r]easonable minds reviewing the record might disagree about the finding in

question, on habeas review that does not suffice to supersede the trial court’s

... determination.” 83 And importantly, “a full and fair hearing is not a

precondition to according § 2254(e)(1)’s presumption of correctness to state

habeas court findings of fact nor to applying § 2254(d)’s standards of review.” 84

Furthermore, “when the state-court record ‘precludes habeas relief’ under the

limitations of § 2254(d), a district court is ‘not required to hold an evidentiary

hearing.’” 85 Since the claim is barred under § 2254(d) for the reasons explained

above, this also settles the matter.

B.

We next turn to Boyer’s claim regarding Anthony’s testimony. “[S]tate

and federal rulemakers have broad latitude under the Constitution to establish

rules excluding evidence from criminal trials.” 86 “This latitude, however, has

limits. Whether rooted directly in the Due Process Clause of the Fourteenth

Amendment or in the Compulsory Process or Confrontation Clauses of the

81 See Boyer, 133 S. Ct. at 1703 (Alito, J., concurring) (“In sum, the record shows that

the single largest share of the delay in this case was the direct result of defense requests for

continuances, that other defense motions caused substantial additional delay, and that much

of the rest of the delay was caused by events beyond anyone’s control.”).

82 Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 558 U.S.

290, 301 (2010)).

83 Id. (internal quotations and citations omitted).

84 Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001) (footnote omitted).

85 Pinholster, 563 U.S. at 183 (citation omitted); accord id. at 185 (“Section 2254(e)(2)

continues to have force where § 2254(d)(1) does not bar federal habeas relief.”).

86 United States v. Scheffer, 523 U.S. 303, 308 (1998).

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Sixth Amendment, the Constitution guarantees criminal defendants a

meaningful opportunity to present a complete defense.” 87 “This right is

abridged by evidence rules that ‘infring[e] upon a weighty interest of the

accused’ and are ‘arbitrary or disproportionate to the purposes they are

designed to serve.’” 88 “While the Constitution thus prohibits the exclusion of

defense evidence under rules that serve no legitimate purpose or that are

disproportionate to the ends that they are asserted to promote, well-

established rules of evidence permit trial judges to exclude evidence if its

probative value is outweighed by certain other factors such as unfair prejudice,

confusion of the issues, or potential to mislead the jury.” 89

Boyer challenges the state appellate court’s affirmance of the trial court’s

exclusion of cross-examination on Anthony’s violence and the prosecution’s

decision not to pursue charges. Boyer argues that he was “entitled to present

the excluded evidence to show that Anthony’s demonstrated violent tendencies

rendered it more probable that he shot Mr. Marsh.” Boyer urges that Anthony’s

assault was serious, hospitalizing the victim and requiring staples to be put in

her head. Boyer argues that this evidence was especially pertinent since its

defense pointed the blame at Anthony. Moreover, Boyer complains, “the

defense had no opportunity to ask Anthony Boyer whether his perception was

such that he believed he had to cooperate with the state or face future criminal

charges.” Boyer further asserts that the state appellate court’s decision

unfairly relied on the State’s representations that “there was no prospect of

prosecution.” Similarly, Boyer avers that if the evidence is permissibly

excluded on the basis of there being no charges, “the same government agency

87 Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citations and quotation marks

omitted).

88 Id. at 324–25 (citing Scheffer, 523 U.S. at 308; other citation and quotation marks

omitted).

89 Id. at 326 (citations omitted).

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that is prosecuting a defendant could be granted plenary authority over the

admissibility of evidence impeaching its star witness by the manipulation of

its charging authority.”

The State counters that Boyer’s attempt to cross examine Anthony about

his violent tendencies is prohibited under Louisiana law. That law, the State

explains, is the Louisiana Code of Evidence Art. 609.1(B) which provides in

part:

Generally, only offenses for which the witness has been convicted

are admissible upon the issue of his credibility, and no inquiry is

permitted into matters for which there has only been an arrest, the

issuance of an arrest warrant, an indictment, a prosecution, or an

acquittal.

The State reasons that because Anthony was not charged with or

convicted of a crime in relation to the domestic violence incident, Boyer was

properly barred from cross-examining on that topic. Furthermore, the State

maintains that any error was harmless, given the strength of its case against

Boyer, noting in particular the audiotaped confession.

Although Article 609.1 generally only allows evidence of offenses for

which a witness has been convicted, 90 an exception allows evidence “to

establish a witness’ bias or interest that may arise from arrests, pending

criminal charges, or the prospect of prosecution.” 91 Despite recognizing this

exception, 92 the state appellate court affirmed the trial court’s ruling. 93 The

90 Boyer, 56 So. 3d at 1127.

91 Id. at 1128; see also LA. CODE EVID. ANN. ART. 607(d) (“Except as otherwise provided

by legislation: (1) Extrinsic evidence to show a witness’ bias, interest, corruption, or defect of

capacity is admissible to attack the credibility of the witness.”).

92 Id. at 1129 (“A witness’s bias or interest may arise from arrests or pending criminal

charges, or the prospect of prosecution, even when he has made no agreements with the state

regarding his conduct.” (citing State v. Vale, 95–1230, p. 4 (La. 1/26/96), 666 So.2d 1070,

1072)).

93 Id.

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appellate court noted that Anthony had already testified about his obstruction

of justice conviction in relation to the case, stated that he was testifying as part

of a plea agreement, and acknowledged that the DA had the ability to revoke

his probation. 94 It also reasoned that the relevance of the domestic violence

evidence was “substantially outweighed by the possibility of prejudice,

confusion of the issue, or misleading of the jury.” 95

Boyer is correct that criminal defendants have the right to present a

complete defense, but he has not pointed to a Supreme Court case with which

the state court decision directly conflicts. For instance, Boyer cites Alexander

v. United States 96 for the principle that “[e]vidence of acts or statements of

another that have a legitimate tendency to show he could have committed the

murder are admissible.” But this case makes no mention of the Confrontation

Clause, cross-examination, or the rules of evidence at issue in Boyer’s case. In

fact, Alexander recognizes the discretion afforded to the trial judge on matters

of excluding evidence suggesting third-party guilt. 97 Boyer cites United States

v. McClure 98 for the proposition that “[v]iolent propensities of a third party are

admissible where it is alleged that the third party acted violently in the instant

case.” But this case is inapposite. As the district court correctly pointed out, “in

McClure the third party’s prior violent acts were admitted not to show that he

had acted violently again but instead that the defendant had a lack of criminal

intent because he was being intimidated by the third party.” Boyer also points

to Chambers v. Mississippi 99 for the proposition that “[w]here constitutional

rights directly affecting the ascertainment of guilt are implicated, state rules

94 Id.

95 Id. at 1130.

96 138 U.S. 353 (1891).

97 Alexander, 138 U.S. at 356.

98 546 F.2d 670 (5th Cir. 1977).

99 410 U.S. 284, 302 (1973).

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of evidence may not be applied mechanistically to defeat the ends of justice by

excluding evidence tending to show a third party’s guilt.” But Chambers

concerned hearsay, and Boyer does not attempt to argue that the state

appellate court decision was directly opposed to it.

On Boyer’s claim that he was unconstitutionally excluded from cross-

examining Anthony on the lack of prosecution for the alleged domestic violence,

Boyer relies on Davis v. Alaska. 100 This case reiterates that exposing a

witness’s bias is part of the right to cross examine. 101 Specifically, the Supreme

Court reversed a ruling that prohibited a defendant from cross-examining a

prosecution witness about possible bias based on “the witness’ probationary

status as juvenile delinquent.” 102 Though this case lends support to Boyer’s

general claim, the state appellate court decision was not contrary to the

holding in Davis; unlike in Davis, Boyer wished to cross-examine Anthony on

allegations of violence that had not resulted in prosecution. The state appellate

court decision was not contrary to clearly established Supreme Court law.

Nor did it involve an unreasonable application of Supreme Court law.

“The right of cross-examination is more than a desirable rule of trial procedure.

It is implicit in the constitutional right of confrontation, and helps assure the

‘accuracy of the truth-determining process.’” 103 However, “evaluating whether

a rule application was unreasonable requires considering the rule’s specificity.

The more general the rule, the more leeway courts have in reaching outcomes

100 415 U.S. 308 (1974).

101 Davis, 415 U.S. at 316–17 (“The partiality of a witness is subject to exploration at

trial, and is ‘always relevant as discrediting the witness and affecting the weight of his

testimony.’ We have recognized that the exposure of a witness’ motivation in testifying is a

proper and important function of the constitutionally protected right of cross-examination.”

(citations omitted)).

102 Id. at 309.

103 Chambers, 410 U.S. at 295 (citation omitted).

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in case-by-case determinations.” 104 Although defendants have well-established

rights to cross-examination, the right is not unlimited, 105 and may be

constrained by the rules of evidence. 106

Boyer states that “[i]n Louisiana, propensity evidence of third parties is

not barred by La. C.E. art 404(B).” 107 Indeed, some Louisiana appellate courts

have held that “the prohibition against other crimes evidence only

contemplates reference to other crimes by the accused.” 108 However, a different

rule of evidence, 609.1(B) states that “[g]enerally, only offenses for which the

witness has been convicted are admissible upon the issue of his credibility, and

no inquiry is permitted into matters for which there has only been an arrest,

the issuance of an arrest warrant, an indictment, a prosecution, or an

acquittal.” 109 Under this rule, cross-examination on Anthony’s alleged violence

would be inadmissible. Still, an exception explained in State v. Vale 110 may

allow inquiry into such matters in order to show a witness’s motivations or bias

in testifying for the State. The Louisiana Supreme Court explained, “to the

extent exposure of a witness’s motivation is a proper and important function of

the constitutionally protected right of cross-examination, a witness’s ‘hope or

knowledge that he will receive leniency from the state is highly relevant to

establish his bias or interest.’” 111 It continued that “[a] witness’s bias or

104 Yarborough, 541 U.S. at 664 (citation omitted).

105 Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005) (per curiam)

106 Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not have an

unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible

under standard rules of evidence.”).

107 Citing Boyer, 56 So.3d 1119, 1128–29.

108 State v. Mims, 97-1500 (La. App. 4 Cir. 6/21/00), 769 So. 2d 44, 75 (citations

omitted).

109 LA. CODE EVID. ANN. ART. 609.1. LA. CODE EVID. ANN. ART. 608(B) states that

“Particular acts, vices, or courses of conduct of a witness may not be inquired into or proved

by extrinsic evidence for the purpose of attacking his character for truthfulness, other than

conviction of crime as provided in Articles 609 and 609.1 or as constitutionally required.”

110 95-1230 (La. 1/26/96), 666 So. 2d 1070 (per curiam).

111 Vale, 666 So. 2d at 1072 (citations omitted).

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interest may arise from arrests or pending criminal charges, or the prospect of

prosecution, even when he has made no agreements with the state regarding

his conduct.” 112 A subsequent Louisiana Supreme Court case, State v.

Goodlow, 113 suggests that such evidence may overcome the restrictions in Rule

609.1(B).

As an initial matter, Boyer complains that “the trial court erroneously

ruled that defense evidence of other crimes of third parties would be admissible

only if it met one of the exceptions in La. C.E. 404(B)(1),” but he cites a part of

the hearing transcript where the parties debate the admissibility of character

evidence of the victim, Bradley Marsh. This aside, the main difficulty in Boyer’s

argument is that he attempted to offer the domestic violence evidence not only

to show bias, but also to argue that Anthony was capable of pulling the trigger.

Boyer does not shy away from this motivation. In his brief he argues, “Boyer

was denied full cross-examination of Anthony Boyer that would have shown, if

its damaging potential was fully realized, that he was an extremely violent

man more than capable of having been the killer in this case.” Assuming

arguendo that the state appellate court erred by barring the evidence under

rules 608 and 609 in light of the rule explained in Vale, the state appellate

court also held that “any relevance of the domestic abuse complaint was

substantially outweighed by the possibility of prejudice, confusion of the issue,

or misleading of the jury.” 114

This is not to say that this Court would find similarly if faced with the

issue in the first instance. But that is not the standard AEDPA requires. A

judge could reasonably find that any relevance of Anthony’s bias from not being

prosecuted for the domestic violence was substantially outweighed by the

112 Id.

113 2000-3488 (La. 11/21/01), 801 So. 2d 1065.

114 Boyer, 56 So. 3d at 1130.

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possibility that the evidence would in effect be understood by the jury as

pointing the blame for the murder at Anthony. The reasonableness of such a

conclusion is bolstered by the fact that Anthony had already testified about his

conviction and sentence in the present case, his probationary status, and that

his testimony was part of his plea arrangement. 115 Furthermore, “[h]e

acknowledged that he was aware that the District Attorney’s Office had control

over whether or not to revoke his probation.” 116 Because Boyer was allowed to

delve into Anthony’s arrangements with the State regarding the instant case,

it was not objectively unreasonable for a court to find the relevance of the lack

of prosecution of the alleged domestic violence to be outweighed by unfair

prejudice, confusion or misleading of the jury.

Boyer makes only a conclusory argument that the state appellate court’s

decision was “based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 117 Therefore he has

waived the argument. 118 Boyer also briefly argues for an evidentiary hearing,

a request we also find waived. But even if it is not, an evidentiary hearing is

not warranted for Boyer’s legal claim regarding Anthony’s cross-examination.

“An evidentiary hearing is not ‘required when the record is complete or the

petitioner raised only legal claims that can be resolved without the taking of

additional evidence.’” 119 Although the defense theorizes that the prosecution

115 Id. at 1129.

116 Id.

117 28 U.S.C. § 2254(d)(2). Boyer contends: “To the extent that the decision rested upon

a finding that there was no prospect of re-initiating the prosecution or that the dismissal of

the charge was unrelated to the murder case, the decision rests upon a wholly unreasonable

determination of the facts.”

118 JTB Tools & Oilfield Servs., L.L.C. v. United States, No. 15-60656, 2016 WL

4083905, at *3 (5th Cir. Aug. 1, 2016) (“To avoid waiver, a party must identify relevant legal

standards and ‘any relevant Fifth Circuit cases.’” (citing United States v. Skilling, 554 F.3d

529, 568 n.63 (5th Cir. 2009)); United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir.

2010) (noting that it is “not enough to merely mention or allude to a legal theory”)).

119 Lawrence v. Lensing, 42 F.3d 255, 259 (5th Cir. 1994) (citation omitted).

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did not bring charges in order to “clean[] up Anthony for trial,” Boyer does not

make a direct constitutional challenge to the prosecution’s failure to bring the

charges itself. 120 His constitutional challenge, rather, centers on the inability

to present a complete defense and the inability to confront an adverse witness

during cross-examination. For the reasons discussed, he cannot prevail on this

challenge.

C.

We finally turn to Boyer’s claim regarding the exclusion of Dr. Fulero’s

testimony. “[C]riminal defendants [must] be afforded a meaningful

opportunity to present a complete defense.” 121 “The rights to confront and

cross-examine witnesses and to call witnesses in one’s own behalf have long

been recognized as essential to due process.” 122 The Supreme Court has

declared that “[f]ew rights are more fundamental than that of an accused to

present witnesses in his own defense.” 123 Moreover, “the Court has never

questioned that ‘evidence surrounding the making of a confession bears on its

credibility’ as well as its voluntariness.” 124 Nonetheless, trial judges have

“‘wide latitude’ to exclude evidence that is ‘repetitive ..., only marginally

120 Boyer argues at one point that “[t]he defense was unconstitutionally prevented

from bringing these challenges to the prosecution’s account.” He further contends that “to

withdraw this issue from the jury based on a wholly unreasonable factual finding (that there

was no prospect of prosecution and no cause for bias) without an evidentiary hearing denied

the defendant his Due Process rights.” However, Boyer’s brief emphasizes constitutional

error with regard to the limits on Boyer’s cross-examination of Anthony. Were Boyer to argue

that he was entitled to an evidentiary hearing to explore whether the prosecution

intentionally failed to pursue assault charges, Boyer would also need to satisfy the

requirements of 28 U.S.C. § 2254(e)(2), or explain why its requirements do not apply. He

makes no attempt to do so.

121 California v. Trombetta, 467 U.S. 479, 485 (1984).

122 Chambers, 410 U.S. at 294. The Sixth Amendment guarantees a criminal

defendant the right “to have compulsory process for obtaining witnesses in his favor.”

123 Id. at 302 (citing cases).

124 Crane v. Kentucky, 476 U.S. 683, 688 (1986) (citation omitted).

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relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the

issues.’” 125

The state appellate court reversed the trial court’s decision to allow Dr.

Fulero to testify on confessions and interrogations. Boyer argues that the

validity and credibility of his confession was central to his defense. He avers

that the exclusion of Dr. Fulero’s testimony constituted the use of a “per se rule

to bar all psychological evidence relevant to false confessions from trials in

Louisiana.” This categorical bar, Boyer maintains, violated his constitutional

right to, most significantly, present a complete defense. Boyer argues, “[h]ere,

as in Crane, Rock, Washington, and Chambers, the exclusion of evidence

unconstitutionally ‘undermined fundamental elements of the defendant’s

defense.’” 126

The State responds that Dr. Fulero’s testimony did not meet the Daubert

criteria for admission, arguing each of the Daubert factors. The State further

contends that the appellate court’s interlocutory judgment was not a

categorical ban, and that Boyer could have explored the conditions of the

interrogation and confession without calling Dr. Fulero. The State asserts that

Dr. Fulero’s testimony would have confused or misled the jury, and that his

testimony “was a waste of time when the jury can make its own determination

of the truth or falsity of the petitioner’s confession unaided by an expert

witness.” Finally, the State argues that any error in barring Dr. Fulero from

testifying was harmless.

The state appellate court decision is not contrary to any of the Supreme

Court precedent cited by Boyer. Boyer cites repeatedly to Crane v. Kentucky.

In Crane, the Supreme Court reversed a ruling that excluded evidence about

125 Id. at 689–90 (citation omitted) (quoting Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986)).

126 Quoting Scheffer, 523 U.S. at 315.

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the circumstances of the defendant’s confession. 127 Although Crane expresses

broad propositions about a defendant’s right to present a complete defense, its

holding was that the “blanket exclusion” of testimony about the defendant’s

confession violated his right to a fair trial. 128 The state appellate court’s

decision does not directly conflict with Crane’s holding, because unlike in

Crane, the trial ruling in Boyer’s case excluded an expert from testifying on

confessions and interrogations in general, not the circumstances of Boyer’s

confession and interrogation in particular.

Nor was the state appellate court decision contrary to Chambers v.

Mississippi. In that case, a Mississippi trial court excluded evidence from three

witnesses that would have testified that another person, McDonald, confessed

to the murder for which the defendant, Chambers, was on trial. 129 The trial

court also barred the defendant from cross-examining McDonald about

McDonald’s earlier confession and renunciation of that confession. 130 As a

result, “Chambers’ defense was far less persuasive than it might have been had

he been given an opportunity to subject McDonald’s statements to cross-

examination or had the other confessions been admitted.” 131 The Court held

Chambers was deprived of a fair trial, because a “mechanistically” applied

hearsay rule could not exclude critical evidence that “was well within the basic

rationale” of a hearsay exception. 132 Unlike in Chambers, the issue at bar

involves the exclusion of expert testimony. Moreover, the excluded expert

127 Crane, 476 U.S. at 687.

128 Id. at 690 (“[W]e have little trouble concluding on the facts of this case that the

blanket exclusion of the proffered testimony about the circumstances of petitioner’s

confession deprived him of a fair trial.” (citation omitted)); accord id. at 691 (“[T]he Kentucky

courts erred in foreclosing petitioner’s efforts to introduce testimony about the environment

in which the police secured his confession.”).

129 Chambers, 410 U.S. at 293–94.

130 Id. at 291–92.

131 Id. at 294.

132 Id. at 302–03.

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testimony about false confessions and interrogations generally is not direct

evidence of the defendant’s lack of guilt, unlike the excluded evidence in

Chambers that the Court deemed “critical.” 133

Holmes v. South Carolina, too, is inapposite. That case addressed

“whether a criminal defendant’s federal constitutional rights are violated by

an evidence rule under which the defendant may not introduce proof of third-

party guilt if the prosecution has introduced forensic evidence that, if believed,

strongly supports a guilty verdict.” 134 The exclusion of evidence of third-party

guilt based on forensic evidence is not implicated here.

Finally, Rock v. Arkansas addressed “whether Arkansas’ evidentiary

rule prohibiting the admission of hypnotically refreshed testimony violated

petitioner’s constitutional right to testify on her own behalf as a defendant in

a criminal case.” 135 The Court held that it did. 136 28 U.S.C. § 2254(d)(1)’s

“clearly established law” clause refers Supreme Court holdings. 137 Accordingly,

even if one assumes that the Louisiana appellate court’s decision is a per se

ban on interrogation and confession expert testimony, it does not directly

conflict with Rock’s holding, which concerned hypnotically refreshed

testimony. The state appellate court decision is not “contrary to” clearly

established Supreme Court law. 138

133 Id. at 302.

134 Holmes, 547 U.S. at 321.

135 Rock v. Arkansas, 483 U.S. 44, 45 (1987); accord id. at 49.

136 See id. at 62.

137 See Lockyer, 538 U.S. at 71–72.

138 Boyer also cites to Washington v. Texas, 388 U.S. 14 (1967), which we find

inapposite because that case concerned state statutes that barred a coparticipant from

testifying for the defendant but not the prosecution. Id. at 16–17. The Court held that the

defendant “was denied his right to have compulsory process for obtaining witnesses in his

favor because the State arbitrarily denied him the right to put on the stand a witness who

was physically and mentally capable of testifying to events that he had personally observed,

and whose testimony would have been relevant and material to the defense.” Id. at 23

(footnote omitted). No similar bar was in play here.

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We next consider whether the state appellate court’s decision involved

an unreasonable application of Supreme Court law. “A state court’s decision

constitutes an unreasonable application of clearly established federal law if it

is ‘objectively unreasonable.’” 139 “The court may grant relief under the

‘unreasonable application’ clause if the state court correctly identifies the

governing legal principle from our decisions but unreasonably applies it to the

facts of the particular case.” 140 “The question under AEDPA is not whether a

federal court believes the state court’s determination was incorrect but

whether that determination was unreasonable—a substantially higher

threshold.” 141 Given this standard, we cannot say the state appellate court’s

decision was an unreasonable application of Supreme Court law.

The state appellate court decision referred to its pre-trial interlocutory

decision barring Dr. Fulero’s testimony. 142 That decision stated:

Allowing expert testimony regarding “false confessions” invades

the province of the jury. The jury is most capable of ascertaining

the truth and validity vel non of confessions--not experts. Allowing

such testimony by incrementally allowing experts to eventually

testify as to the guilt or innocence of the defendant cannot be

allowed.

Boyer claims that this decision constitutes a per se ban on “all

psychological evidence relevant to false confessions.” The State counters that

the decision was not a categorical ban, and suggests that in Louisiana there is

no such categorical ban on expert testimony on false confessions.

139 Gray, 616 F.3d at 439 (citing Williams, 529 U.S. at 409).

140 Bell, 535 U.S. at 694 (citation omitted).

141 Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citation omitted).

142 Boyer, 56 So. 3d at 1130. (“However, the record before this court indicates that this

court’s ruling was made on the merits as presented and nothing has been currently argued

that would indicate that the ruling was erroneous.”).

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In Rock, the Supreme Court explained that a “State’s legitimate interest

in barring unreliable evidence does not extend to per se exclusions that may be

reliable in an individual case.” 143 Far from upholding or enacting a per se ban,

the state appellate court’s decision excluded Dr. Fulero’s testimony in this

particular case, and in an unpublished, interlocutory judgment no less. 144

Moreover, the appellate court’s exclusion is unlike “Arkansas’ per se rule

excluding all posthypnosis testimony” in Rock, which the Court held “infringes

impermissibly on the right of a defendant to testify on his own behalf.” 145 The

Court found the categorical ban “had a significant adverse effect on petitioner’s

ability to testify,” because she could not describe the shooting “except in the

words contained in [a doctor’s] notes.” 146 Such reasoning is not implicated here

because Boyer was not categorically barred from testifying himself about his

confession or interrogation.

Further, we cannot say that the state appellate court’s decision was

arbitrary or disproportionate to the purpose the exclusion is designed to

serve. 147 That stated purpose was protecting the province of the jury on the

question of credibility of a confession and the closely related ultimate issue of

guilt or innocence. Still, false confessions occur. 148 And there is an argument

143 Rock, 483 U.S. at 61.

144 Boyer has not directed this Court to any other cases that illustrate the alleged per

se ban on confessions experts across the state of Louisiana.

145 Rock, 483 U.S. at 62.

146 Id. at 57.

147 Scheffer, 523 U.S. at 308 (States have “broad latitude” to exclude evidence, and

“[s]uch rules do not abridge an accused’s right to present a defense so long as they are not

‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” (citations

omitted)).

148 See J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011) (discussing phenomenon of

false confessions in custodial police interrogations and emphasizing risks for juveniles); Hall

v. Florida, 134 S. Ct. 1986, 1993 (2014) (noting risk of false confessions for the intellectually

disabled); Smith v. United States, 348 U.S. 147, 153 (1954) (noting “the experience of the

courts, the police and the medical profession recounts a number of false confessions

voluntarily made” (citation omitted)); United States v. Belyea, 159 F. App’x 525, 529 (4th Cir.

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not without purchase that the wholesale exclusion of Dr. Fulero’s testimony

was disproportionate to preserving the jury’s province. However, 28 U.S.C.

§ 2254(d) “preserves authority to issue the writ in cases where there is no

possibility fairminded jurists could disagree that the state court’s decision

conflicts with [the Supreme] Court’s precedents.” 149 Furthermore, “[c]learly

established Federal law for purposes of § 2254(d)(1) includes only the holdings,

as opposed to the dicta, of [the Supreme] Court’s decisions. And an

unreasonable application of those holdings must be objectively unreasonable

not merely wrong; even clear error will not suffice.” 150 Boyer cannot clear this

bar; a fairminded jurist could agree with the propriety of the state appellate

court’s exclusion. 151 Like in Scheffer, Dr. Fulero’s exclusion “did not preclude

[Boyer] from introducing any factual evidence [about his confession]. Rather,

[Boyer] was barred merely from introducing expert opinion testimony to

bolster his own credibility.” 152

Finally, “an essential component of procedural fairness is an opportunity

to be heard. That opportunity would be an empty one if the State were

permitted to exclude competent, reliable evidence bearing on the credibility of

2005) (per curiam) (unpublished) (“Jurors may know that people lie in everyday life or even

sometimes under oath, particularly when they believe lying to be advantageous. Jurors may

not know, however, that people lie on occasion to their own detriment by falsely confessing

to crimes that they did not commit. The phenomenon of false confessions is counter-intuitive

and is not necessarily explained by the general proposition that ‘jurors know people lie.’”

(citations omitted)).

149 Harrington, 562 U.S. at 102–03.

150 White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (citations and internal quotation

marks omitted).

151 Compare Scheffer, 523 U.S. at 313 (Thomas, J., writing for a plurality) (in

upholding per se ban on polygraph evidence, stating “[a] fundamental premise of our criminal

trial system is that ‘the jury is the lie detector’” (citation omitted)), with id. at 318–19

(Kennedy, J., concurring in the judgment) (disagreeing that “jury’s role in making credibility

determinations is diminished when it hears polygraph evidence” which “demeans and

mistakes the role and competence of jurors in deciding the factual question of guilt or

innocence”).

152 Scheffer, 523 U.S. at 317 (footnote omitted) (majority opinion).

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a confession when such evidence is central to the defendant’s claim of

innocence.” 153 “State and Federal Governments unquestionably have a

legitimate interest in ensuring that reliable evidence is presented to the trier

of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a

principal objective of many evidentiary rules.” 154 Boyer suggests that the state

appellate court found that Dr. Fulero’s testimony was relevant and reliable,

thus satisfying Daubert. But the state appellate court made no such finding.

Further, this Court has explained that in Daubert v. Merrell Dow Pharm.,

Inc. 155

the Supreme Court offered a list of factors that district courts may

use in evaluating the reliability of expert testimony. These factors

include whether the expert’s theory or technique: (1) can be or has

been tested; (2) has been subjected to peer review and publication;

(3) has a known or potential rate of error or standards controlling

its operation; and (4) is generally accepted in the relevant scientific

community. 156

The district court in this case concluded that “the Third Circuit evidently

found the testimony would be of little value under this test. Based on the

witness’s own statement that this field could not provide reliable methods for

determining whether a confession was false, we are inclined to agree.” Given

Daubert’s “flexible” analysis, 157 we find that fairminded jurists could debate

the exclusion of Dr. Fulero under Daubert as well. “It bears repeating that even

153 Crane, 476 U.S. at 690 (citations omitted) (emphasis added).

154 Scheffer, 523 U.S. at 309 (citing Daubert, 509 U.S. at 589; other citation omitted).

155 509 U.S. 579, 593–94 (1993).

156 Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 400 n.17 (5th Cir. 2016).

157 Sims, 839 F.3d at 400 n.17 (noting that in Kumho Tire v. Carmichael, 526 U.S. 137,

150 (1999), “the Supreme Court emphasized that the Daubert analysis is a ‘flexible’ one, and

that ‘the factors identified in Daubert may or may not be pertinent in assessing reliability,

depending on the nature of the issue, the expert’s particular expertise, and the subject of his

testimony.’”).

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a strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” 158

IV.

Boyer appealed from the district court’s denial of habeas relief on three

claims: (1) his Sixth Amendment right to speedy trial was violated; (2) his due

process and Confrontation Clause rights were violated when he could not cross-

examine Anthony on Anthony’s alleged violence; and (3) his rights to present

a complete defense and present witnesses were violated when Dr. Fulero was

excluded. A seven year delay between arrest and trial is the exception, not the

rule, and must remain so. Nevertheless, “[a]s a condition for obtaining habeas

corpus from a federal court, a state prisoner must show that the state court’s

ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” 159 Boyer

cannot do so here. We AFFIRM the district court.

158 Harrington, 562 U.S. at 102 (citation omitted).

159 Id. at 103.

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JAMES E. GRAVES, JR., Circuit Judge, dissenting:

I would conclude that the state court’s decision was contrary to, or

involved an unreasonable application of, clearly established federal law, and

that the district court erred in denying habeas relief on the three issues raised

by Jonathan Boyer on appeal. Because I would reverse the district court’s

denial of Boyer’s habeas relief, I respectfully dissent.

As set out by the majority, we review the district court’s findings of fact

for clear error and its conclusions of law de novo, applying the same standard

to the state court’s decision as the district court. Higginbotham v. Louisiana,

817 F.3d 217, 221 (5th Cir. 2016). We also apply the rules of the Antiterrorism

and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2254(d).

“A state court’s decision is deemed contrary to clearly established federal

law if it reaches a legal conclusion in direct conflict with a prior decision of the

Supreme Court or if it reaches a different conclusion than the Supreme Court

based on materially indistinguishable facts.” Gray v. Epps, 616 F.3d 436, 439

(5th Cir. 2010). Further, a federal habeas writ may issue if the “state court

applies a rule different from the governing” federal law. Bell v. Cone, 535 U.S.

685, 694 (2002). Finally, “[a] state court’s decision constitutes an unreasonable

application of clearly established federal law if it is objectively unreasonable.”

Gray, 616 F.3d at 439.

I. Speedy Trial Claim

We analyze Boyer’s Sixth Amendment speedy trial claim under the four-

factor balancing test in Barker v. Wingo, 407 U.S. 514 (1972), as follows:

(1) Length of the delay

The state appellate court concluded that the length of the delay was

presumptively prejudicial. I agree with the majority’s conclusion that this

finding was reasonable given the seven-year time period between arrest and

trial.

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(2) Reason for the delay

The state appellate court found that this factor could not be attributed

to either the State or Boyer. I agree with the majority’s conclusion that the

state appellate court erred in its analysis of this factor, i.e., “the flag all

litigants seek to capture.” United States v. Loud Hawk, 474 U.S. 302, 315

(1986). I disagree with the majority as to the weight afforded this factor.

The majority acknowledges that “delay resulting from a systemic

breakdown in the public defender system” is weighted against the state.

Vermont v. Brillon, 556 U.S. 81, 94 (2009). The majority then relies on Barker

to diminish the weight. Barker does say that unexplained or negligent delays

may weight against the state less heavily than deliberate delays. Barker, 407

U.S. at 531. However, although such a delay may be weighted less heavily

than a deliberate delay, the Supreme Court has also clarified that:

[I]t still falls on the wrong side of the divide between acceptable

and unacceptable reasons for delaying a criminal prosecution once

it has begun. And such is the nature of the prejudice presumed

that the weight we assign to official negligence compounds over

time as the presumption of evidentiary prejudice grows. Thus, our

toleration of such negligence varies inversely with its

protractedness, cf. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct.

333, 102 L.Ed.2d 281 (1988), and its consequent threat to the

fairness of the accused's trial.

Doggett v. United States, 505 U.S. 647, 657 (1992).

In Doggett, the Court also noted that “lower courts have generally found

postaccusation delay ‘presumptively prejudicial’ at least as it approaches one

year.” Doggett, 505 U.S. at 652, n.1. The Court also specified that presumptive

prejudice “simply marks the point at which courts deem the delay

unreasonable enough to trigger the Barker enquiry.” Id. In Barker, the

Supreme Court determined that over five years “was extraordinary.” Barker,

407 U.S. at 533. Here, that protractedness was seven years. Thus, the state’s

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delay several times as long as that generally sufficient to trigger judicial review

weights substantially against the state here regardless of whether there is

evidence of deliberate delay. Accordingly, I would conclude that the state court

decision was contrary to, or involved an unreasonable application of, clearly

established federal law under 28 U.S.C. § 2254(d)(1).

Further, as both factors one and two of Barker weight substantially

against the state here, I would conclude that this is sufficient to establish that

the ultimate decision of the state court was objectively unreasonable.

Notwithstanding that I would grant habeas relief at this point, I also disagree

with the majority on the remaining two factors of Barker.

(3) Defendant’s assertion of his right

The state appellate court found that Boyer did not assert his right until

after the three-year statutory prescription had tolled, noting that his filing was

“more perfunctory than aggressive.” The majority concludes that the state

court’s decision was not objectively unreasonable because of the timing of

Boyer’s motions to quash and the arguable lack of prejudice that Boyer has

shown. However, I disagree.

Regardless of the timing of Boyer’s motions to quash, there is no dispute

that he was without fully-funded counsel for the majority of the seven years,

including during the entire three-year time limitation. As Boyer argues, he

asserted his claim at the earliest opportunity under the circumstances.

For these reasons, I would conclude that the state court’s decision as to

this factor was objectively unreasonable. As three factors weight against the

state, including the essential second factor, I would conclude, again, that the

ultimate decision was objectively unreasonable and was contrary to, or

involved an unreasonable application of, clearly established federal law under

28 U.S.C. § 2254(d)(1).

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(4) Prejudice

The state appellate court found that Boyer did not explain how he was

prejudiced, but did not explicitly credit or reject his arguments. The majority

concludes that the state court’s decision is not objectively unreasonable. I

disagree.

The Supreme Court has explicitly stated, as discussed previously herein,

that the “presumption that pretrial delay has prejudiced the accused

intensifies over time.” Doggett, 505 U.S. at 652. The Court also said:

Thus, we generally have to recognize that excessive delay

presumptively compromises the reliability of a trial in ways that

neither party can prove or, for that matter, identify. While such

presumptive prejudice cannot alone carry a Sixth Amendment

claim without regard to the other Barker criteria, it is part of the

mix of relevant facts, and its importance increases with the length

of delay.

Id. at 655-56 (internal citation omitted). Further, the Court said: “While not

compelling relief in every case where bad-faith delay would make relief

virtually automatic, neither is negligence automatically tolerable simply

because the accused cannot demonstrate exactly how it has prejudiced him.”

Doggett, 505 U.S. 647 at 657.

Because of the length of the delay here, there is a strong presumption

that Boyer was prejudiced in ways that he would neither be able to prove nor

identify. 1 As instructed by the Supreme Court, we do not simply tolerate the

delay on the basis of whether Boyer can demonstrate exactly how he was

prejudiced. While that presumption alone cannot carry Boyer’s Sixth

Amendment claim, it is more than sufficient when combined with the other

1 Notwithstanding that Boyer would still prevail even if he is unable to demonstrate

exactly how the delay has prejudiced him, he sets out how he was prejudiced.

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factors which also weight against the state to establish objective

unreasonableness.

Accordingly, I would conclude that the state court decision on this factor

was contrary to, or involved an unreasonable application of, clearly established

federal law under 28 U.S.C. § 2254(d)(1). As Barker requires the balancing of

all four factors, which weight against the state, I would conclude that the

ultimate decision of the state court was objectively unreasonable. Thus, Boyer

is entitled to habeas relief on his speedy trial claim.

II. Exclusion of evidence

Boyer asserts that the state court’s decision to exclude evidence about

Anthony’s alleged violence and lack of prosecution was contrary to, or involved

an unreasonable application of, clearly established federal law.

The majority acknowledges the exception under Louisiana law which

allows the very evidence Boyer attempted to present. LA. CODE EVID. ANN.

art. 609.1(B). The majority then dismisses the cases cited by Boyer as

authority on the basis that they are not factually identical and, thus, not in

direct conflict. I disagree.

Regardless of whether state courts have broad latitude in excluding

evidence under criminal trials, a defendant is guaranteed a meaningful

opportunity to present a complete defense under the Constitution. See Holmes

v. South Carolina, 547 U.S. 319, 324 (2006); see also Crane v. Kentucky, 476

U.S. 2142, 2146 (1986). The state appellate court did not address the

constitutional issues and merely concluded that the state trial court did not

abuse its discretion under Louisiana law. See State v. Boyer, 2010-693 (La.

App. 3 Cir. 2/2/11); So.3d 1119, 1127-30. While we must still give AEDPA

deference, that deference is not without limits.

The Supreme Court has explicitly acknowledged that “the lack of a

Supreme Court decision on nearly identical facts does not by itself mean that

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there is no clearly established federal law, since ‘a general standard’ from this

Court's cases can supply such law.” Marshall v. Rodgers, 133 S.Ct. 1446, 1449

(2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

general standards of the Confrontation Clause of the Sixth Amendment and

the Due Process Clause of the Fourteenth Amendment are well settled.

Further, the general standards of the cases cited by Boyer provide clearly

established law.

For example, the majority distinguishes Chambers v. Mississippi, 410

U.S. 284, 302 (1973), on the basis that it involved hearsay. However, the

proposition for which Boyer cites Chambers, “where constitutional rights

directly affecting the ascertainment of guilt are implicated, [state rules of

evidence] may not be applied mechanistically to defeat the ends of justice,” is

clearly established. See Chambers at 302. In fact, the majority notes that

general standard in a quote from Holmes, 547 U.S. at 324-25 (“This right is

abridged by evidence rules that ‘infring[e] upon a weighty interest of the

accused’ and are ‘arbitrary or disproportionate to the purposes they are

designed to serve.’”). Further, while Chambers did involve hearsay, it was

“coupled with the State’s refusal to permit Chambers to cross-examine

McDonald.” Chambers at 302. In concluding that Chambers was denied a

“trial in accord with traditional and fundamental standards of due process,”

the Court stated, “[i]n reaching this judgment, we establish no new principles

of constitutional law.” Id. This further indicating the general standards at

issue are clearly established.

Boyer cites Davis v. Alaska, 415 U.S. 308, 316-17 (1974) for the

proposition that exposing a witness’ bias is part of the right to cross examine.

The majority concedes that Davis supports Boyer’s claim that he was

unconstitutionally excluded from cross-examining Anthony on the lack of

prosecution for domestic violence. But, the majority then concludes that,

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because Davis is not factually identical, the state appellate court’s decision

could not be contrary to it. As set out previously, such a conclusion contradicts

Marshall, 133 S.Ct. 1446. 2

Moreover, the state appellate court’s decision involved an unreasonable

application of federal law. The right of cross-examination is “implicit in the

constitutional right of confrontation.” Chambers, 410 U.S. at 295. The

Louisiana Rules of Evidence provide a specific exception that allows the

evidence at issue here. See LA. CODE EVID. ANN. art. 607(d). See also State

v. Vale, 95-1230, p.4 (La. 1/26/96); 666 So.2d 1070, 1072; and State v. Goodlow,

2000-3488 (La. 11/21/01), 801 So.2d 1065.

For these reasons, I would conclude that the state court’s decision was

contrary to, or involved an unreasonable application of, clearly established

federal law and infringed on Boyer’s Confrontation Clause rights.

Additionally, because Boyer established the prejudicial impact of the

constitutional error, I would conclude that the error is not harmless.

III. Exclusion of expert testimony

Boyer asserts that the state appellate court’s decision to exclude expert

testimony on confessions and interrogations was contrary to, or involved an

unreasonable application of, clearly established federal law because it

infringed on his rights to present a complete defense and present witnesses in

his defense.

Again, the majority concludes the state appellate court decision was not

contrary to any of the precedent cited by Boyer. I disagree for many of the

same reasons stated above. Additionally, the state appellate court’s decision,

2 The majority concludes that Davis is distinguishable because it involved the witness’

juvenile delinquency adjudication while Anthony had not yet been prosecuted. However, as

stated previously, Louisiana law provides an exception for that very circumstance. LA.

CODE EVID. ANN. art. 607(d).

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quoted by the majority herein, clearly amounted to a blanket exclusion of

expert testimony relevant to false confessions. Moreover, the state appellate

court decision involved an unreasonable application of federal law.

States have broad latitude to exclude evidence so long as such rules are

“not arbitrary or disproportionate to the purposes they are designed to serve.”

See United States v. Scheffer, 523 U.S. 303, 308 (1998). “Moreover, we have

found the exclusion of evidence to be unconstitutionally arbitrary or

disproportionate only where it has infringed upon a weighty interest of the

accused.” Id. The Supreme Court has also held that “[f]ew rights are more

fundamental than that of an accused to present witnesses in his own defense.”

Chambers, 410 U.S. at 302. The confession was key to the state’s case. Boyer

had a right to present evidence to prove the confession was false. Accordingly,

I would conclude that the exclusion of this evidence infringes upon a weighty

interest and, thus, was unconstitutionally arbitrary or disproportionate.

For these reasons, I would conclude that the state court’s decision was

contrary to, or involved an unreasonable application of, clearly established

federal law and infringed on Boyer’s rights to present a complete defense and

present witnesses in his defense, and was disproportionate to the purpose of

protecting the province of the jury. Additionally, because Boyer established

the prejudicial impact of the constitutional error, I would conclude that the

error is not harmless.

Accordingly, I would reverse the district court’s denial of habeas relief on

all three issues. Therefore, I respectfully dissent.

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