The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on June 5, 2008:

• Hughes v. Quarterman (Jolly, Wiener, Dennis, JJ.; opinion by Jolly, J.). After granting COA to review denial of federal habeas relief by district court, the Fifth Circuit affirmed the denial of relief. Petitioner was convicted and sentenced to death for the murder of two children, aged fifteen and three years old. The Fifth Circuit held that the petitioner’s claim that the jury instructions did not properly allow for the jury to consider mitigating evidence at the sentencing phase was procedurally barred because he did not raise it until his second state petition for post-conviction relief and did not make a sufficient showing of cause and prejudice for the failure to raise the claim timely; that the state court’s determination that the introduction into evidence at the sentencing phase of a rape conviction for the defendant that had been later overturned on appeal was harmless error did not violate well established federal jurisprudence or was substantially injurious, because the evidence of the conviction was merely incremental on top of the live testimony of the alleged rape victim; and that improper comments by the prosecutor regarding the defense counsel’s cross-examination of the alleged rape victim from the prior case were not so prejudicial as to infect the trial with significant unfairness, especially in light of the trial court’s curative instruction upon defense counsel’s objection.
• U.S. v. Garcia (Reavley, Benavides, Owen, JJ.; opinion by Owen, J.). Affirming conviction of defendant on four counts of possessing more than 500 grams of cocaine and marijuana. At defendant’s trial, one of the arresting officers testified allegedly from his independent recollection as to the defendant’s statements during the investigation and arrest. The defendant’s counsel sought to have the officer read a portion of a transcript of the audio recording of the investigation and arrest interview; when the government objected because the transcript and recording were not in evidence, defense counsel sought to have the transcript read on the basis of FRE 106 and the rule of completeness. The district court denied the request and sustained the government’s objection, finding that Rule 106 and the rule of completeness did not apply where no portion of the transcript or recording were already in evidence. The Fifth Circuit held that Rule 106 does not apply to a witness’s testimony at trial, especially where based on memory; and that the broader common law rule of completeness did not allow defense counsel carte blanche to challenge the officer’s version of the arresting conversation in any way possible, but provided discretion to the district court to prescribe a number of means short of introducing the transcript to challenge the officer’s version of events.

The Fifth Circuit also released revised version of the opinions in Martinez v. Mukasey, U.S. v. Gulley, and U.S. v. Rowan, released originally on March 11, April 30, and June 4, 2008, respectively.