The following published opinion was released by the U.S. Court of Appeals for the Fifth Circuit on August 6, 2008:

• Geiger v. Cain (Garwood, Clement, Elrod, JJ.; opinion by Elrod, J.) (appeal from E.D. La.). Reversing grant of habeas relief by district court on grounds of prosecutorial misconduct and ineffective assistance of counsel. The district court granted habeas relief on the basis that the prosecution twice during trial referenced a lay witness that had failed to respond to her trial subpoena and represented that her testimony would have corroborated that of the only other testifying eyewitness to the killing, and that the petitioner’s trial counsel failed to move for mistrial based on the prosecutorial comments or request a “great caution” instruction with regard to the accomplice testimony. The Fifth Circuit held that the prosecutor’s statements did not warrant reversal because the evidence of guilt absent the statements was not insubstantial, and therefore that the failure of trial counsel to move for mistrial or request a curative jury instruction was not ineffective assistance.