E.D. Tex. Notes Split re Whether Crawford Is Retroactive on Collateral Review
Per Eldridge v. Dir., TDCJ-CID, 2006 WL 573924 (E.D.Tex. Feb. 8, 2006):
In Crawford, the Supreme Court established "a categorical rule barring the admission of out-of-court testimonial statements against the accused absent opportunity for cross-examination." United States v. Holmes, 406 F.3d 337, 347 (5th Cir.2005). It is noted that Roviaro and Crawford were direct appeals, as opposed to collateral attacks in habeas corpus proceedings. The Fifth Circuit has not decided whether Crawford is retroactive on collateral review. Summers v. Dretke, 431 F.3d 861, 877 (5th Cir.2005); Lave v. Dretke, 416 F.3d 372, 378-79 (5th Cir.2005). Other circuits are split on the issue. See Juarez v. Nelson, 127 Fed. Appx. 401 (10th Cir.2005) (Crawford not retroactive); Murillo v. Frank, 402 F.3d 786, 789-91 (7th Cir.2005) (Crawford not retroactive on collateral review); Mungo v. Duncan, 393 F.3d 327 (2nd Cir.2004) (Crawford not retroactive); Bockting v. Bayer, 399 F.3d 1010 (9th Cir.2005) (held that Crawford applied retroactively).