Finding that a state court unreasonably applied clearly established federal law by holding that no Sixth Amendment violation occurred when a jury heard recorded testimony from a deceased witness to a murder, the district court granted the defendant’s petition for a writ of habeas corpus. We affirm the grant of the writ but vacate the portion of the order requiring the State to dismiss the underlying indictment if it fails to retry the defendant within 120 days.
FACTS AND PROCEEDINGS
A. Factual Background
In November 2001, a jury convicted Terrance Jones of second-degree murder for the shooting of Marty Martin in the early morning of July 28, 1997. 1 Pursuant to Louisiana’s mandatory sentencing rules, the state trial court sentenced him to life in prison without the possibility of parole.
Responding to a call about a shooting, a Jefferson County Sheriffs Deputy discovered Martin’s body in a blue Oldsmobile adjacent to James Artberry’s house in Marrero, Louisiana. Martin had been shot once in the chest. EMS technicians who arrived soon after found that Martin had no vital signs.
Artberry told the police he had witnessed the shooting. He gave a short statement at the scene, including a description of the perpetrator and the perpetrator’s car. Detective Mike Tucker then took him to the Criminal Investigations Bureau for questioning. Artberry gave two recorded statements to Detective Tucker. In the first, taken after 8:00 a.m., Artberry said that he had seen Martin at around 10:00 p.m. that night at a bar in Marrero. He explained that Martin asked him to help find a prostitute, that he agreed to do so, but that the search was unsuccessful and the two returned to the bar. Artberry said he walked home without Martin and later saw two black men in a Pontiac Grand Prix with tinted windows and a yellow sticker on the back window pull up in front of his house. He claimed to have seen one of the two men shoot Martin over what appeared to be a drug deal gone wrong. He stated that he did not get a good look at the shooter’s face or the passenger in the shooter’s car, and that he could not identify the shooter.
Artberry gave the second recorded statement shortly after 4:00 a.m. In it, he acknowledged his failure to disclose some information during the first statement, which he blamed on his fear of the shooter; he also explained that he had been involved in the drug deal. In this version of the story, after the unsuccessful search for a prostitute, Martin asked Artberry where he could get crack cocaine. Artberry took *532 Martin to a woman who flagged down the blue Grand Prix and told the occupants that Martin wanted drugs. Martin and Artberry followed the Grand Prix in Martin’s car and met its two black male passengers outside Artberry’s house. Artberry stated that he saw Martin approach the passenger window of the Grand Prix, where he received a rock of crack cocaine and handed over some money. The passenger claimed that Martin had given him only a one-dollar bill instead of a twenty. Martin looked in his pockets and then went to his car and rummaged around inside it. At this point, the passenger in the Grand Prix told the driver to “knock his fucking head off.” After looking at Artberry and telling him that he blamed Artberry for what had happened, the driver shot Martin twice. During this second interview, Artberry identified the shooter as a black man named Terrance who lived on Poe Street in Westwego. Artberry claimed to have known Terrance for several years.
Subsequently, the police composed a photo lineup based on this information. Artberry did not identify any of the subjects as the shooter. When presented with a second lineup containing a picture of Jones, however, Artberry picked him out as the shooter. After this identification, two detectives recorded a third interview with Artberry at his home. 2
Artberry testified at a suppression hearing before Jones’s first trial. He stated that he had been able to identify the perpetrator in a photo lineup and that the perpetrator was named “Terrance.” He identified Jones in court as the same person he had identified in the lineup. Jones’s counsel cross-examined Artberry about these statements but not about the recorded statements he had given the police; Jones’s defense counsel did not learn that the recorded statements existed until after the first trial had begun. Shortly after the suppression hearing, and before the first trial, Artberry died of a drug overdose.
B. Procedural Background
1. First trial, mistrial, and state appeals
Jones’s first trial began in July 2000. Before the trial, he moved to exclude Art-berry’s suppression hearing testimony. The trial court denied the motion. The state intermediate appellate court and supreme court affirmed the denial.
State v. Jones,
The Louisiana Supreme Court reversed. Though it noted “substantial discrepancies between Artberry’s second statement to Detective Tucker and his testimony at the suppression hearing,” the court held that Jones had a fair opportunity to cross-examine Artberry at the suppression hearing and that Artberry’s hearing testimony sat *533 isfied Louisiana’s hearsay exception for prior recorded testimony. Id. at 626-28. It remanded the case for retrial.
2. Second trial and state appeals
Jones’s second trial began in November 2001. The prosecutor’s opening statement included a narrative of the crime that relied on the recorded statements Artberry gave to the police. The prosecutor also told the jury that Artberry made two statements while at the police station — one in which he denied knowing who the shooter was, and a second in which he claimed he could identify the shooter. Jones’s defense counsel, in his opening statement, suggested that Martin was killed after quarreling with Artberry and that Artberry changed his story when he realized he was a suspect.
In accordance with the state supreme court’s ruling, the State introduced Artberry’s cross-examined testimony from the suppression hearing without objection during its case-in-chief. The State again called Detective Tucker as a witness. Tucker testified that he had taken three statements from Artberry on the night of the murder and then began to testify about what Artberry had told him. He related the substance of the first recorded statement — the one in which Artberry said that he could not identify the shooter— without objection. When Tucker began to testify about what Artberry told him during the second recorded statement — the one inculpating Jones — defense counsel objected on hearsay grounds. The trial court overruled the objection, explaining that Tucker could testify about Artberry’s statements “for purposes of him relating ... how he conducted his investigation.” Jones’s counsel, citing the un-cross-examined nature of the hearsay statements, moved for a mistrial. The trial court denied the motion and allowed the State to continue its examination of Tucker. It did not give a limiting instruction.
The State then moved to introduce transcribed copies of Artberry’s statements and play the recordings to the jury. 3 Jones’s counsel again objected on hearsay and Confrontation Clause grounds. The State argued that the Louisiana Supreme Court decision on the suppression hearing allowed the introduction of the recorded statements. It also argued that the statements should be allowed into evidence to bolster Artberry’s credibility. The trial court admitted the evidence. The State made use of the statements during the remainder of its case-in-chief. It asked Tucker to explain his theory of the crime based in part on Artberry’s statements, and Tucker’s response relied almost exclusively on the recorded statements. 4 The *534 jury convicted Jones of second-degree murder.
After he was found guilty and sentenced, Jones appealed to the state intermediate appellate court. That court recognized that “the State primarily used the recorded statements to bolster its case against defendant.”
Jones II,
The appellate court held, however, that the recorded statements could be admitted, pursuant to Louisiana Code of Evidence article 801(D)(1)(b), “as consistent statements intended to rebut an express or implied charge against [Artberry] of recent fabrication or improper influence or motive.”
Id.
(alteration in original) (quotation omitted). Attacks on Artberry’s motivations and credibility in defense counsel’s opening statement and throughout the trial, the court reasoned, “allowed the State to use Artberry’s prior recorded statements as a rehabilitative measure.”
Id.
at 976. Louisiana Code of Evidence article 801(D)(1)(b) exempts as non-hearsay a pri- or statement by a declarant when “[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... [cjonsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” The state appellate court did not address the article’s requirement that the declarant “testif[y] at the trial or hearing” — i.e., at the trial itself — where the declarant would be “subject to cross-examination concerning the statement.” The Louisiana Supreme Court affirmed without a written opinion.
State v. Jones,
S. Habeas proceedings
Jones’s state application for post-conviction relief was denied at each level. After exhausting his state post-conviction remedies, he filed a
pro se
§ 2254 habeas corpus petition in the Eastern District of Louisiana.
5
In a lengthy ruling, the district court concluded that the state trial court admitted and used Artberry’s statements for their truth, which implicated Jones’s Sixth Amendment rights and triggered a Confrontation Clause analysis under
Ohio v. Roberts,
The State appealed. It argues that the district court erred by reviewing the state appellate court’s application of state evidence law; that the admission of the statements did not violate Jones’s Confrontation Clause rights; and that any ensuing error was harmless. The State also argues that the district court lacked authority to order the dismissal of the indictment against Jones if the State fails to retry him within 120 days.
STANDARD OF REVIEW
In a habeas appeal, this court reviews the district court’s findings of fact for clear error and its conclusions of law
de novo,
applying the same standard of review that the district court applied to the state court decision.
Geiger v. Cain,
(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
(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.
28 U.S.C. § 2254(d);
see Rogers v. Quarterman,
“A state court’s decision is contrary to clearly established federal law if it applies a rule that contradicts the governing law set forth in Supreme Court cases,”
Fields v. Thaler,
DISCUSSION
A. Whether the district court erred by reviewing a state evidentiary ruling
The State argues that the district court went beyond the permissible scope of *536 federal habeas review by finding, contrary to the Louisiana courts, that Artberry’s statements were hearsay. The State contends that the district court should have deferred to the state courts’ evidentiary rulings.
The State is correct that federal courts sitting in habeas do not review state courts’ application of state evidence law.
See Castillo v. Johnson,
Adoption of the State’s argument would immunize constitutional error from review when the error is related, however incidentally, to a state evidentiary ruling. That is not the law. “[T]he admissibility vel non of the evidence under state law is not determinative of a federally protected right cognizable on habeas corpus.”
Hills v. Henderson,
B. Whether the admission of the recorded statements violated Jones’s 6th Amendment rights under Ohio v. Roberts
The State argues that Artberry’s recorded statements were properly admitted as non-hearsay pursuant to Louisiana Code of Evidence article 801(D)(1)(b). It also claims that the Louisiana Supreme Court decision holding that Artberry’s cross-examined suppression hearing testimony was admissible also authorized the admission of the un-cross-examined recorded statements. For the reasons explained below, both arguments fail. The district court correctly found all the elements of a Confrontation Clause violation under the applicable Ohio v. Roberts standard.
“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The confrontation right is only implicated when the out-of-court statement is used to prove the truth of the matter asserted.
Tennessee v. Street,
*537 [W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
Id.
at 66,
The district court correctly found that Artberry’s statements were used to prove the truth of what they asserted, as did the Louisiana Court of Appeal, which recognized that “[i]t appears the State primarily used the recorded statements to bolster its case against [the] defendant.”
Jones II,
The jury was never instructed to ignore the statements as testimony of how the crime occurred and to consider them only for non-hearsay purposes.
Jones III,
Most importantly, the prosecution’s use of the statements was not limited to the putative purpose of shoring up Artberry’s credibility, or indeed to any of the justifications given at trial for their admission. After the trial court held that the statements were admissible to show how Detective Tucker performed his investigation and formulated his theory of the crime — a use that, the state appellate court held, impermissibly raised the significant possibility that “ ‘the jury [would] consider the statement for the truth of the matter as
*538
serted’ ” — Detective Tucker relied on the substance of the statements to explain his theory of the crime.
10
Jones II,
If a jury is asked to infer that a statement purportedly introduced for non-hearsay purposes also serves as proof of what it contains, then “the evidence would have been hearsay; and because [the declarant] was not available for cross-examination, Confrontation Clause concerns would have been implicated.”
Street,
The state court failed to consider the Confrontation Clause implications of the use of Artberry’s testimony. That lapse would not have been constitutional error if the testimony bore “particularized guarantees of trustworthiness” or if it fell “within a firmly rooted hearsay exception.”
Roberts,
“[A] finding of particularized guarantees of trustworthiness must be shown from the totality of the circumstances that surround the making of the statement, and may not be based on other evidence at trial that may corroborate the statement.”
Fratta v. Quarterman,
Second, as the district court correctly decided, Louisiana Code of Evidence article 801(D)(1)(b) is not a firmly rooted hearsay exception. Whether a hearsay exception is firmly rooted for the purposes of a Confrontation Clause analysis is a question of federal, not state, law.
*539
Lilly v. Virginia,
The question whether a prior consistent statement is a firmly rooted hearsay exception arises rarely, if ever: in the typical case in which such evidence is introduced, the declarant is on the stand and his prior consistent statement, about which he can be cross-examined, comes in as a hearsay exemption. We hold that, even if a prior consistent statement were normally considered to be imbued with the same trustworthiness as hearsay admitted under other firmly rooted exceptions, the rule as applied in Louisiana would not qualify. In
Tome v. United States,
the Supreme Court held that, under the Federal Rules of Evidence, a prior consistent statement used to rebut a charge of improper motive must have been made before the improper motive allegedly arose.
11
Thus, the state trial court allowed the State to use the un-cross-examined, testimonial statements of an absent party for their truth against Jones. The statements were not marked by particularized guarantees of trustworthiness and did not fall under a firmly rooted hearsay exception. Under
Roberts,
the admission of the recorded statements violated Jones’s clearly established Sixth Amendment right to confront the witnesses against him. Moreover, the Louisiana courts’ failure to recognize the violation was objectively unreasonable. This is not a close case. The violation of Jones’s rights at trial should have been obvious, and the failure to correct it was unreasonable even under the deferential § 2254(d) standard.
Cf. Taylor,
The State’s remaining arguments that the admission of the statements was nonetheless proper are unavailing. It first contends that the decision of the Louisiana Supreme Court allowing the admission of Artberry’s suppression hearing testimony also allowed the admission of Artberry’s recorded statements. This argument has been rejected by each court that has eon
*540
sidered it, and for good reason.
Jones III,
The State brings two additional challenges to the grant of habeas relief. First, it asserts that, regardless of whether their admission would otherwise violate Jones’s Confrontation Clause right, Art-berry’s statements were properly admitted because Jones’s counsel invited the error. Second, the State contends that the admission was harmless error. The State waived both arguments by failing to raise them before the district court.
“The doctrine of invited error provides that when injection of inadmissible evidence is attributable to the actions of the defense, the defense cannot later object to such invited error.”
United States v. Green,
Finally, the State argues that any Confrontation Clause violation was harmless because the evidence against Jones was strong and because the admission of the statements did not add significantly to the state’s case. “On habeas review under AEDPA, the prejudice of constitutional error in a state-court criminal trial is measured by the ‘substantial and injurious effect [or influence in determining the jury’s verdict]’ standard of
Brecht v. Abrahamson,
The district court found that the State waived the harmless error argument. The State did not raise harmless
*541
error in its response to Jones’s
pro se
habeas petition. It brought up the issue only in a surreply, to counter a separate argument by Jones that is not before this court. Arguments raised for the first time in a reply brief are generally waived.
See United States v. Jackson,
C. Whether the district court erred by ordering a conditional dismissal of the indictment
The last question is whether the district court erred by ordering the State to dismiss the indictment if it fails to retry Jones within 120 days.
13
The State is correct that the portion of the order requiring the dismissal of the indictment against Jones, rather than requiring him to be set free, is unusual. We conclude that it constitutes an abuse of discretion.
See Capps v. Sullivan,
In federal habeas eases, district courts have “broad discretion in conditioning a judgment granting habeas relief.”
Hilton v. Braunskill,
An order conditionally dismissing the underlying indictment is warranted only in narrow circumstances. Because the habeas court can act solely on the body of the prisoner, it ordinarily lacks the power to order the dismissal of an indictment. Even when the state fails to retry a defendant within the time set by a habeas court so that the writ issues, freeing the defendant, the state is generally free to rearrest and retry the defendant on the original indictment.
See Moore v. Zant,
In rare circumstances, a habeas court can end a state criminal proceeding as part of the habeas remedy. If the constitutional problem that led to the grant of the writ cannot be cured by a new trial — for example, if a double jeopardy violation merits habeas relief — then the habeas court can permanently end the state criminal proceeding. “For a federal court to exercise its habeas corpus power to stop a state criminal proceeding ‘special circumstances’ must exist.... [T]he constitutional violation must be such that it cannot be remedied by another trial, or other exceptional circumstances [must] exist such that the holding of a new trial would be unjust.”
Capps,
Here, a retrial would not violate Jones’s constitutional rights. Additionally, there are no other “special circumstances” that justify an order ending all state murder proceedings against Jones in the event that the State cannot begin a retrial within 120 days. Thus, the district court lacked authority to do anything except order Jones’s release, which the court may properly condition by giving the State a certain amount of time to retry him. Its order conditionally dismissing the indictment against Jones was an abuse of discretion.
CONCLUSION
The district court’s grant of habeas corpus relief is AFFIRMED. The portion of its order conditionally requiring the State to dismiss the indictment against Jones is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
Notes
. The underlying facts are laid out in more detail in
State v. Jones,
. The third recorded statement was also played to the jury at Jones's trial, but the record does not contain a transcript of it.
. The district court opinion summarizes the proceedings surrounding the admission of the recorded statements.
See Jones v. Cain,
. Other witnesses for the State provided circumstantial evidence against Jones. Mary Gums, Jones's girlfriend at the time of the shooting, testified that Jones telephoned her after the murder and asked her to give his lawyer's phone number to a witness who lived next door to the murder
scene
— viz., to Art-berry. She did so; she later contacted Art-berry and put him in touch with Jones. Gums also stated that she asked Jones whether he had killed anybody, and that he responded by saying “Don’t ask ... no questions.” Gelandra Brue, whose credibility as a witness was highly questionable,
see Jones III,
. After granting habeas relief, the district court appointed the Federal Public Defender to represent Jones on appeal to this court.
. The Confrontation Clause benefits Jones, a state defendant, because the Sixth Amendment is incorporated against the states through the Fourteenth Amendment.
See, e.g., Johnson v. Puckett,
. Here, state habeas relief was denied without a written opinion. But, because we review only "the reasonableness of the state court’s ultimate decision, the AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without an opinion.”
Schaetzle v. Cockrell,
. Additionally, if the constitutional error is harmless, the habeas petition must be denied.
See O’Neal v. McAninch,
. Although the defense did not request a limiting instruction, it is likely that any such instruction would have been futile given that the statements bore directly on Jones's culpability and were only marginally relevant — if at all — to any purported non-hearsay purpose. Even if the statements were admissible under Louisiana article 801(D)(1)(b), their asserted credibility-bolstering value was substantially outweighed by the danger of unfair prejudice. It is difficult to imagine a limiting instruction that could cure such prejudice.
. Specifically, Tucker testified that his theory of how the shooting took place was that, "[wjhile reaching into his vehicle to retrieve the twenty-dollar bill, the victim was shot with his arm extended.”
. Here, by contrast, all of Jones’s statements were made after a motive to lie arose.
. The
Vonsteen
court cited
United States v. Giovannetti,
. This court stayed the district court's judgment in an order dated June 5, 2009, before the 120 days had run.