PRECEDENTIAL
     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 09-3526
                  _____________

               HENRY ADAMSON,

                         Appellant

                         v.

CATHEL, ADMINISTRATOR OF NEW JERSEY STATE
                  PRISON;
PAULA T. DOW, THE ATTORNEY GENERAL OF THE
           STATE OF NEW JERSEY


                 _______________

   On Appeal from the United States District Court
            for the District of New Jersey
                (D.C. No. 06-cv-3194)
       District Judge: Hon. Peter G. Sheridan
                  _______________

                      Argued
                  October 4, 2010
   Before: SCIRICA, FUENTES and JORDAN, Circuit
                      Judges.

                   (Filed March 1, 2011)
                     _______________

Lon Taylor [ARGUED]
Office of Public Defender
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08626
     Counsel for Appellant

Steven E. Braun [ARGUED]
Office of County Prosecutor
401 Grand Street
Paterson, NJ 07505
     Counsel for Appellees
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Henry Adamson, a New Jersey prisoner convicted in
1998 of holding up a pool hall and robbing its patrons,
appeals from an order of the United States District Court for
the District of New Jersey denying his petition for a writ of
habeas corpus. Adamson claims that his constitutional right
to confront witnesses was violated when, at trial, the
government introduced confessions of his alleged
accomplices for the purpose of impeaching Adamson‟s




                             2
testimony that his own confession had been fabricated by a
police officer. Because admission of the accomplices‟
statements without a limiting instruction was contrary to
clearly established Supreme Court precedent, we will reverse
the District Court‟s decision and grant Adamson‟s habeas
petition.

I.       Factual Background and Procedural History

         A.   Factual Background

        In the early morning of December 14, 1996, several
masked and armed men entered Brother‟s Candy Store, a pool
hall and social club in Passaic, New Jersey, and robbed
several patrons. A police officer arriving at the scene saw
three men flee in one direction, and two flee in another. The
officer pursued the latter two and ultimately apprehended one
of them, Darren Napier. When the officer returned to
headquarters with Napier, he recognized the second man he
had chased from the robbery scene, Gaumaal Aljamaar,1 in a
holding cell. Both Napier and Aljamaar provided statements
to the police (the “accomplice statements”), which detailed
their involvement in the robbery and implicated Adamson.

        Three days later, Adamson received a call from his
girlfriend, Yvette Robinson, whose car had been used in the
robbery. She informed him that the police were going to

     1
    The Superior Court of New Jersey Appellate Division
(“Appellate Division”) and the State‟s brief employ the
spelling “Aljamaar,” the trial transcript uses “Aljaamar,” and
Adamson‟s brief uses the spelling “Aljmaar.” We adopt the
Appellate Division‟s spelling of the name.




                              3
charge her with conspiracy to commit robbery and that they
were looking for him. Adamson then surrendered himself
peacefully to the police. After waiving his Miranda rights, he
gave a statement to Detective Julius Cirelli, which, like
Napier‟s and Aljamaar‟s statements, was transcribed.
According to Detective Cirelli, he took Adamson‟s statement
by asking questions and typing Adamson‟s answers on a
computer. Adamson‟s statement described the planning and
execution of the robbery. It detailed how and where he and
his co-conspirators met to plan the robbery, the number and
types of guns used in the robbery, the attempt by one co-
conspirator to back out of the robbery, and the step-by-step
execution of the robbery, including specifics such as who
went into the club first, who held which gun, who hit a patron
with a shotgun, who took jewelry and money from patrons,
and how the assailants disposed of their weapons. After
giving his statement, Adamson read a printed version of it,
initialed each answer in it, and signed it.

       Adamson was later indicted for numerous offenses
related to the robbery. He was tried in the New Jersey
Superior Court, separately from his co-conspirators, and his
confession was admitted against him at trial through
Detective Cirelli‟s testimony.       Because the patrons of
Brother‟s Candy Store could not identify the masked robbers,
the confession was key to the prosecution, and Adamson
attacked its validity, testifying on direct examination that it
was false. He claimed that Detective Cirelli had threatened to
charge his girlfriend if he did not confess, that he signed the
confession but never read it, and that the details in it came
from the written statements of Napier and Aljamaar, which
were provided to Adamson before he made his own




                              4
statement. He also claimed that Detective Cirelli supplied
additional details that were included in the confession.

       During cross-examination at trial, the prosecutor
attacked Adamson‟s testimony regarding the motive for and
content of his confession. The prosecutor began by clarifying
Adamson‟s position on the accomplice statements:

      Prosecutor:   Now, you said during your direct
                    testimony that you were given
                    two other statements to read prior
                    to giving [your] statement. Is that
                    right?

      Adamson:      Yes.

      Prosecutor:   And that‟s your testimony. That‟s
                    how you knew these details. Is
                    that what you‟re trying to tell us?

      Adamson:      Yes.

      Prosecutor:   Whose        other       statement
                    specifically was it that you were
                    given?

      Adamson:      Aljamaar and Darren Napier.

                                  ***

      The Court:    You read those statements?

      Adamson:      Yes.




                             5
       The Court:    Before you gave your statement.

       Adamson:      Yes.

(App. at 78.)

       The prosecutor then marked the accomplice statements
for identification and began to impeach Adamson by
questioning him on the differences between them and his
confession. In the colloquy that followed, the prosecutor
recited and paraphrased significant portions of the accomplice
statements. Importantly, those portions not only highlighted
the differences between the accomplice statements and
Adamson‟s confession, they also directly implicated
Adamson in the robbery, as the following cross-examination
excerpts demonstrate:

       Prosecutor:   You used the four door green
                     colored Acura in your girl friend‟s
                     name?

       Adamson:      I didn‟t use no car for the robbery.

       Prosecutor:   That‟s what Mr. Napier says?

       Adamson:      In his statement, yes.

                                   ***

       Prosecutor:   [Mr. Napier] says that … you had
                     the small handgun [at the pool
                     hall] … .




                               6
Adamson:      That‟s what he said.

                            ***

Prosecutor:   [I]n [Mr. Aljamaar‟s] statement
              he says that you have a friend that
              goes to the pool hall in Passaic …
              and the people inside have a lot of
              money.

Adamson:      That‟s what he said in his statement, yes.

Prosecutor:   He said you started thinking this
              was a good place to hit. Is that
              right?

Adamson:      That‟s what he said, yes.

                            ***

Prosecutor:   [Mr. Aljamaar] said that you had
              a nine millimeter handgun [at the
              pool hall] … .

Adamson:      Yes.

Prosecutor:   All right. [Mr. Aljamaar] further
              said that you and General[,
              another alleged accomplice,] were
              going to walk around to see how
              many people were inside the pool
              hall. That‟s what he said?




                        7
      Adamson:      That‟s what he says, yes.

      Prosecutor:   And he further stated that you and
                    General came back and said that
                    there were between nine to twelve
                    people inside the pool hall and
                    that you said let‟s do it. That‟s
                    what [Mr. Aljamaar] said?

      Adamson:      I need to see that because I don‟t
                    remember that part.

      Prosecutor:   Okay. Look to the fifth line down, page
                    2 of Mr. Aljamaar‟s statement.

      Adamson:      Then, they said let‟s do it.

(App. at 81-82.) Adamson did not object to the use of the
accomplice statements by the prosecutor on cross
examination.

       During closing argument, the prosecutor focused on
the inconsistencies between Adamson‟s confession and the
accomplice statements, arguing that those inconsistencies
showed that Adamson‟s story about his confession being
based on the accomplice statements could not be believed.
The prosecutor also criticized Adamson‟s claim that the
police fabricated the confession, wondering aloud, “if
Sergeant Cirelli was trying to get [Adamson] to fabricate,
why [would he] not pick one of the statements and follow it
to the T, follow it by the letter?” (App. at 87.) The
prosecutor then drew the jury‟s attention to how Adamson‟s
confession was consistent with the account of events given by




                              8
some of the victims and officers. The conclusion pressed by
the prosecutor was that the “statement … given by Henry
Adamson ... clearly and unequivocally establishes his
involvement and his guilt in this particular offense.” (App. at
88.) Adamson did not object to the use of the accomplice
statements during closing arguments.

        The day after closing arguments, the Superior Court
instructed the jury. At no point did the Court provide an
instruction to the jury limiting consideration of the
accomplice statements to impeachment purposes or otherwise
preventing the jury from considering those statements for
their truth, nor did Adamson seek such an instruction. The
jury found Adamson guilty on all counts except for attempted
murder, and the Court sentenced him to a term of life
imprisonment with a consecutive ten-year sentence and a total
of thirty years of parole ineligibility.

       B.     Procedural History

              1.     Direct Appeal

       Adamson appealed his conviction and sentence to the
Superior Court Appellate Division. On appeal, he asserted,
among other things, that the government‟s use of the
accomplice statements during his cross-examination violated
his Sixth Amendment right to confront witnesses, especially
since no limiting instruction was given to the jury. In an
October 5, 2000 opinion, the Appellate Division rejected that
challenge, explaining that “[a]n accomplice‟s out-of-court
statement may be used for a purpose other than proving the
truth of what it asserts without violating a defendant‟s right of
confrontation.” (App. at 52 (quotations omitted).) In so




                               9
holding, the Appellate Division relied on the United States
Supreme Court‟s decision in Tennessee v. Street, in which the
Supreme Court approved the use of a co-conspirator‟s
statement to impeach a defendant who claimed that his own
statement to police was fabricated and based upon the co-
conspirator‟s. 

, 413-14 & 417 (1985).

       Although a limiting instruction had been given in
Street to prohibit the jury from considering the co-
conspirator‟s statement for its truth, 

the
Appellate Division in Adamson‟s case decided that, although
Street applied, the lack of a limiting instruction was not fatal
to Adamson‟s conviction. “While we agree that a limiting
instruction should have been given,” the Court said, “we
nevertheless conclude [that] its omission did not constitute
plain error.” (App. at 53.) The Appellate Division explained
that Adamson‟s failure to request such an instruction at trial
weakened his case on appeal and required that he show it was
plain error not to give the instruction. The Appellate Division
then said it was “satisfied” that the trial court did not plainly
err because, “beyond a reasonable doubt, … the error did not
lead the jury to a result it otherwise might not have reached”:

       The issue concerning the validity of
       [Adamson‟s] confession, whether it was his or
       one dictated by Detective Cirelli, was clearly
       before the jury. The unobjected to cross
       examination by the State which revealed
       portions of the contents of the statements did
       not prejudice [Adamson,] given his insistence
       that Cirelli used the statements to formulate his
       confession. The record is more than adequate
       to support a determination on the part of the




                               10
       jury that the defense raised by [Adamson] was
       simply not credible.

(App. at 54.) Thereafter, Adamson filed a petition for
certification with the Supreme Court of New Jersey, which
was denied, as was his subsequent petition for certiorari to the
United States Supreme Court.

              2.     Post-Conviction Relief

       Adamson sought and was denied post-conviction relief
in the New Jersey state courts. He subsequently filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, in the District Court, arguing that he was entitled to
habeas relief because the use of the accomplice statements
during his cross-examination, without a limiting instruction to
the jury, violated the Confrontation Clause of the Sixth
Amendment.2

       The District Court concluded that the Appellate
Division‟s ruling was neither contrary to nor an unreasonable
application of Street. The thrust of the Court‟s analysis was
that Adamson‟s case is factually indistinguishable from Street
and thus, as in Street, the State‟s use of the accomplice
statements for impeachment purposes did not run afoul of the
Confrontation Clause. The District Court rejected Adamson‟s
argument that “the presence of a limiting instruction is
essential to the constitutionality of a Street-type submission
of evidence.” (App. at 27.) Since Adamson failed to request

   2
      Adamson also challenged his sentence; however, that
issue was not included in the certificate of appealability in
this case and is therefore not before us.




                              11
such an instruction at trial, the Court reduced his argument to
“a claim that it would be desirable for the trial judge to drive
home the non-hearsay purpose of [the] prosecutorial
examination further … .” (Id. at 29.) However, said the
Court, “the fact that the instructions could have been better
does not render them unconstitutional.” (Id.) Accordingly,
the District Court concluded that the Appellate Division‟s
ruling was neither contrary to nor an unreasonable application
of Supreme Court precedent.

       Having rejected all of Adamson‟s arguments, the
District Court denied his petition for a writ of habeas corpus
and also denied a certificate of appealability. Adamson
timely sought a certificate of appealability from us. We
granted him one “with respect to [his] claim that his Sixth
Amendment right to confront his accusers was violated by the
prosecution‟s introduction of his co-defendants‟ statements
during his trial.”

II.    Jurisdiction and Standard of Review

        The District Court had jurisdiction over Adamson‟s
petition pursuant to 28 U.S.C. § 2254. We have appellate
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The
District Court did not conduct an evidentiary hearing, so our
standard of review is plenary. See McMullen v. Tennis, 

, 236 (3d Cir. 2009) (“Because the District Court
ruled on the petition without conducting an evidentiary
hearing, this Court conducts a plenary review.”).




                              12
        Adamson‟s confrontation claim was adjudicated on the
merits and exhausted in State court proceedings,3 and we are
thus bound by the standards of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See Harris
v. Ricci, 

, 96 (3d Cir. 2010) (“Because this case
arises from a state court proceeding in which the merits of
[petitioner‟s] sole claim on appeal were adjudicated, the
standards established by [AEDPA] apply.”).4 Under AEDPA,
a federal court may not grant a writ of habeas corpus with
respect to a claim that was adjudicated on the merits in state
court proceedings unless the state court‟s adjudication
“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.”
28 U.S.C. § 2254(d)(1). “[C]learly established law as
determined by [the Supreme] Court „refers to the holdings, as
opposed to the dicta, of th[e] Court‟s decisions as of the time
of the relevant state-court decision.‟”        Yarborough v.
Alvarado, 

, 660-61 (2004) (quoting 

). Here, the Appellate Division‟s October 5,
2000 decision on the Sixth Amendment Confrontation Clause
issue is the relevant state ruling. See Newland v. Hall, 527

   3
      Adamson did not raise any Confrontation Clause issues
in his post-conviction petitions to the New Jersey state courts.
“A petitioner who has raised an issue on direct appeal,
however, is not required to raise it again in a state post-
conviction proceeding.” Lambert v. Blackwell, 

,
513 (3d Cir. 1997).
   4
      Adamson filed his federal habeas petition after
AEDPA‟s effective date, so the statute applies to his case.
Williams v. Taylor, 

, 429 (2000).




                              

, 1199 (11th Cir. 2008) (“[T]he highest state court
decision reaching the merits of a habeas petitioner‟s claim is
the relevant state court decision.”).

       As AEDPA makes clear, only if the Appellate
Division‟s decision was “contrary to” or an “unreasonable
application of” the governing Sixth Amendment legal
principles, as established by the Supreme Court, can
Adamson gain habeas relief. The Supreme Court has
afforded independent meaning to the words “contrary to” and
“unreasonable application of [law].”5 

.      “Contrary to” means “diametrically different,”
“opposite in character or nature,” or “mutually opposed.” 

to” prong of AEDPA applies when “the state
court reaches a conclusion opposite to the Supreme Court‟s
own conclusion on a question of law or decides the case
differently where the Supreme Court was confronted by a set
of materially indistinguishable facts.” 

. “A state-court decision will certainly be contrary to [the
Supreme Court‟s] clearly established precedent if the state
court applies a rule that contradicts the governing law set


   5
      In giving separate effect to both the “contrary to” and
“unreasonable application” prongs of § 2254(d)(1), the
Supreme Court has had to eschew some measure of the
ordinary meaning of those words. It would seem that when a
state court‟s analysis of a prisoner‟s constitutional claim is
contrary to Supreme Court precedent, it is necessarily also an
unreasonable application of the law. But, under Williams,
“contrary to” is not a subset of “unreasonable application,”
and we follow the now well-established definitions provided
in that 

.




                              14
forth in [the Supreme Court‟s] cases.” 

.

        The “unreasonable application” prong of AEDPA
applies when a “state court identifies the correct governing
legal principle from [the Supreme] Court‟s decisions but
unreasonably applies that principle to the facts.” Wiggins v.
Smith, 

, 520 (2003) (quotations omitted). That
test is an objective one and does not permit a court to grant
relief simply because the state court might have incorrectly
applied federal law to the facts of a certain case. 

21.

       Even if we find constitutional error in the state court‟s
decision, we must determine if that error was harmless or if it
instead “had substantial and injurious effect or influence in
determining the jury‟s verdict.” Brecht v. Abrahamson, 

, 637 (1993); see also Fry v. Pliler, 

,
121 (2007) (“We hold that in § 2254 proceedings a court must
assess the prejudicial impact of constitutional error in a state-
court criminal trial under the „substantial and injurious effect‟
standard set forth in Brecht … .”). Only in the latter event
will we grant habeas relief.

III.   Discussion

        Our conclusion is that the presentation at Adamson‟s
trial of portions of his accomplices‟ incriminating statements,
without a limiting instruction, was contrary to the Supreme
Court‟s clearly established precedent in Street, which
required such an instruction. We further conclude that the
accomplice statements, combined with the lack of a limiting
instruction, had a substantial and injurious effect on the jury‟s




                               15
verdict. Adamson‟s habeas petition is therefore well-
founded.

       A.     The Appellate Division‟s Opinion Was
              Contrary to Clearly Established Supreme Court
              Precedent

        The Confrontation Clause of the Sixth Amendment,
applicable to the States through the Fourteenth Amendment,
requires that a criminal defendant be given the right “to be
confronted with the witnesses against him,” and includes the
right to cross-examine those witnesses. U.S. CONST. amends
VI, XIV; see Richardson v. Marsh, 

, 206 (1987).
At the time the Appellate Division issued its opinion,
Confrontation Clause jurisprudence permitted testimonial
hearsay to be admitted against a defendant, provided it bore
sufficient “indicia of reliability.”6 See Ohio v. Roberts, 

, 66 (1980). Furthermore, clearly established Supreme
Court law guided lower courts as to when and how
confessions of co-conspirators could be introduced at trial in a
manner that did not offend the Confrontation Clause. See
Bruton v. United States, 

, 136-37 (1968)
(holding that the admission of a pretrial confession of a

   6
       With the Supreme Court‟s decision in Crawford v.
Washington, that has changed. 

, 53-54 (2004)
(prohibiting “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination”). Even after Crawford, however, “[t]he
[Confrontation] Clause ... does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.” 

(citing 

).




                              16
nontestifying co-defendant that incriminates the defendant
violates that defendant‟s right to confront witnesses even if a
limiting instruction is given); see also 

& 211 (permitting admission of the confession of a
non-testifying co-defendant which was “redacted to omit all
reference to [the defendant]” when the jury was instructed to
use the information only against the non-testifying
defendant).

       In Street, the Supreme Court addressed whether
introduction of a co-conspirator‟s confession at trial for an
impeachment purpose offends the Confrontation Clause.
Harvey Street and an accomplice were arrested for burglary
and 

. After their arrests, both men
confessed to a Sheriff. 

Street repudiated his
confession and asserted that the Sheriff read him his
accomplice‟s confession and “directed him to say the same
thing.” 

Street‟s claim that his confession was
fabricated, the State had the Sheriff read to the jury the
accomplice‟s confession, which directly implicated Street.

Before the Sheriff read the accomplice‟s
statement to the jury, however, “the trial judge twice
informed the jury that it was admitted „not for the purpose of
proving the truthfulness of his statement, but for the purpose
of rebuttal only.‟” 

The trial court included a
similar limiting instruction in its final instructions to the jury.

Court concluded that “[t]he nonhearsay
aspect of [the co-conspirator‟s] confession – not to prove
what happened at the murder scene but to prove what
happened when [the defendant] confessed – raise[d] no
Confrontation Clause concerns. ” 

(emphasis in




                                17
original). Instead, the concern was that the jury might use
the co-conspirator‟s statement in a manner inconsistent with
the Confrontation Clause, i.e., to infer Street‟s guilt even
though Street had had no opportunity to cross-examine the
witness. 

Court found no such problem in Street‟s
case, “hold[ing] that the trial judge‟s instructions were the
appropriate way to limit the jury‟s use of [the co-conspirator‟s
confession] in a manner consistent with the Confrontation
Clause.” 

       Street is one application of the general, long-standing
principle that the potential for jury misuse of evidence can
often be curbed by a limiting instruction. Indeed, whenever
the Supreme Court has permitted a jury to consider evidence
that has the potential to be misused, e.g., to be considered in a
way that would violate the defendant‟s constitutional rights, it
has required that a proper jury instruction be given to avoid
the misuse. See, e.g., Harris v. New York, 

, 226
(1971) (holding that statements elicited from a defendant in
violation of his Miranda rights could be introduced to
impeach that defendant‟s credibility when the jury was
instructed that the statements were not to be considered as
evidence of his guilt); Spencer v. Texas, 

, 559-61
(1967) (holding that evidence of a defendant‟s prior criminal
convictions could be introduced for the purpose of sentence
enhancement if the jury was instructed that the evidence
could not be used for the purposes of determining guilt);
Walder v. United States, 

, 64 (1954) (holding that
the admission of unlawfully seized evidence of a crime was
admissible if the jury was instructed that the evidence could
be considered only in assessing a defendant‟s credibility and
not for determining guilt); cf. Watkins v. Sowders, 

, 347 (1981) (condoning the admission of erroneously




                               18
admitted eyewitness identification evidence when the jury
was instructed not to consider it, regardless of the dissent‟s
observation that such evidence “has a powerful impact on
juries”).

        These precedents are premised on the belief that juries
follow the instructions they are given. See 

(“The rule that juries are presumed to follow their
instructions is a pragmatic one, rooted less in the absolute
certitude that the presumption is true than in the belief that it
represents a reasonable practical accommodation of the
interests of the state and the defendant in the criminal justice
process.”). In the Confrontation Clause context, however, the
Supreme Court has recognized that the risk of prejudice
stemming from the introduction of a co-defendant‟s
confession is so high that, in some circumstances, even a
limiting instruction cannot cure the constitutional problem.
See 

(“[T]here are some contexts in
which the risk that the jury will not, or cannot, follow
instructions is so great, and the consequences of failure so
vital to the defendant, that the practical and human limitations
of the jury system cannot be ignored.”); see also Gray v.
Maryland, 

, 196 (1998) (holding that a properly
instructed jury may not consider the redacted confession of a
co-defendant which “obviously refer[ed] directly to someone,
often obviously the defendant”). It is only when a co-
defendant‟s statement can be redacted so that it does not at all
implicate the defendant that admission of the statement can be
justified, and then only when an instruction is given limiting
consideration of the statement to whether the co-defendant is
guilty. 

; see also Cruz v. New
York, 

, 193 (1987) (“We hold that, where a
nontestifying codefendant‟s confession incriminating the




                               19
defendant is not directly admissible against the defendant, ...
the Confrontation Clause bars its admission at their joint trial,
even if the jury is instructed not to consider it against the
defendant, and even if the defendant‟s own confession is
admitted against him.” (internal citation omitted)). It is
therefore not surprising that Street requires a limiting
instruction to preserve the Sixth Amendment Confrontation
Clause rights of a defendant when a jury is permitted to
consider for impeachment value a nontestifying accomplice‟s
statement that incriminates the defendant.

       The Appellate Division correctly identified Street as
the governing rule but held that there was no Confrontation
Clause problem simply because the prosecutor had
emphasized the impeachment purposes of the problematic
statements.7    But Street makes clear that a jury‟s
understanding of the distinction between substantive and
impeachment uses of inculpatory evidence cannot be taken
for granted. An appropriate limiting instruction is necessary
to prohibit jury misuse of such evidence. Of particular
importance here, the presence of such an instruction was


   7
     For reasons unclear to us, Adamson argues that his case
is factually distinguishable from Street, contending that the
accomplice statements did not actually impeach his testimony
and that they are far less probative than the statement at issue
in Street. We agree with the District Court that, other than
the absence of a limiting instruction, the facts of this case are
indistinguishable from Street in any material way. That the
accomplice statements were admitted during Adamson‟s
testimony, instead of Cirelli‟s or another officer‟s testimony,
does not change our conclusion.




                               20
essential to the holding in 

(“[W]e
hold that the trial judge‟s instructions were the appropriate
way to limit the jury‟s use of [the co-conspirator‟s
confession] in a manner consistent with the Confrontation

   8
       Nonhearsay use of statements generally raises no
Confrontation Clause concerns. United States v. Jimenez, 

, 81 (3d Cir. 2008) (“Nonhearsay use of evidence as a
means of demonstrating a discrepancy does not implicate the
Confrontation Clause.”); United States v. Hinton, 

, 358 n.1 (3d Cir. 2005) (“As we held in United States v.
Trala, testimonial statements are admissible without prior
cross examination if they are not offered for their truth.”).
But we and our sister circuits have acknowledged Street‟s
teaching that a limiting instruction is necessary where, as
here, nonhearsay use is made of expressly incriminating
statements. See United States v. Trala, 

, 544 (3d
Cir. 2004) (noting the importance of the limiting instruction
in Street), vacated on other grounds, 

(2006);
see also Ray v. Boatwright, 

, 797 (7th Cir. 2010)
(finding confrontation clause violation when co-actors‟
statements were introduced into evidence in prosecution‟s
case-in-chief, as opposed to on rebuttal, and no limiting
instruction was given); Furr v. Brady, 

, 39 (1st
Cir. 2006) (“[The Street Court] noted that, absent other
circumstances, it is sufficient that the codefendant statement
is nonhearsay – viz., not admitted for the truth of the matter
asserted, and [that] the court gives a limiting jury instruction
to that effect.”); Lee v. McCaughtry, 

, 1325-26
(7th Cir. 1990) (rejecting confrontation clause challenge
when out of court statements were played for the jury and the
trial court gave a limiting instruction at the time the
statements were introduced).




                              21
Clause.”). The fundamental problem with the Appellate
Division‟s opinion is that it divorces Street‟s conclusion that
the Confrontation Clause permits use of a co-defendant‟s
confession for impeachment purposes from its corresponding
requirement that, in such circumstances, the jury must be
instructed to consider the confession for impeachment only.

        The Appellate Division correctly observed that, when
weighing Adamson‟s trial testimony, the jury should have
been instructed to consider the accomplice statements solely
for their impeachment value. However, the Appellate
Division held that the trial court‟s failure to give such an
instruction was not plain error, suggesting that a limiting
instruction, though preferred, is optional from a constitutional
standpoint. We are compelled to disagree. The failure to
instruct the jury regarding the proper use of the accomplice
statements, statements which facially incriminated Adamson,
was plain and obvious error that was directly contrary to
Street‟s holding. Without a limiting instruction to guide it,
the jury that found Adamson guilty was free to consider those
facially incriminating statements as substantive evidence of
Adamson‟s guilt. The careful and crucial distinction the
Supreme Court made between an impeachment use of the
evidence and a substantive use of it on the question of guilt
was completely ignored during the trial.            Adamson‟s
constitutional right to confront witnesses was therefore
violated by the presentation at trial of portions of the
accomplice statements. The Appellate Division‟s opposite
conclusion was contrary to clearly established Federal law, as
determined by the Supreme Court.




                              22
       B.     Adamson was Prejudiced by the Violation of
              His Confrontation Rights

        Having concluded that the Appellate Division‟s
decision was contrary to clearly established Federal law, we
must consider whether the constitutional error which it
perpetuated – the unrestricted introduction of non-testifying
accomplice statements – was harmless or whether it resulted
in actual prejudice to Adamson. See 

(“[H]abeas petitioners ... are not entitled to habeas relief
based on trial error unless they can establish that it resulted in
actual prejudice.” (Internal quotation marks and citation
omitted)). “[A]n error is harmless unless it had substantial
and injurious effect or influence in determining the jury‟s
verdict.” 

(internal quotation marks and
citations omitted). If an error did have that kind of effect,
then, by definition, it resulted in actual prejudice. Our role is
to ask whether we think the constitutional error “substantially
influenced the jury‟s decision.” O’Neal v. McAninch, 

, 436 (1995). “If, when all is said and done, the
[court‟s] conviction is sure that the error did not influence the
jury, or had but very slight effect, the verdict and the
judgment should stand.” 

(quoting Kotteakos v.
United States, 

, 764-65 (1946)) (alteration in
original). But if we have “grave doubt” about whether the
error had substantial and injurious effect or influence in
determining the jury‟s verdict, we must conclude that the
error was not harmless. 

The Supreme Court has
cautioned that “The uncertain judge should treat the error, not
as if it were harmless, but as if it affected the verdict (i.e., as
if it had a „substantial and injurious effect or influence in
determining the jury‟s verdict‟).” 

do have such doubt about the error in this case.
Though we do not do so lightly,9 we must disagree with the
State‟s contention that Adamson was not prejudiced by the
absence of a limiting instruction because he failed to request
the limiting instruction and because the evidence against him
was “overwhelming.” (Appellees‟ Ans. Br. at 15.)

       First, as a practical matter, we do not see how
Adamson‟s failure to request the limiting instruction means
that he was not prejudiced. It may raise questions about the
effectiveness of his counsel,10 but it does not alter the effect
that the lack of a limiting instruction may have had on the
jury‟s verdict.11

   9
     “We emphasize that because of the deference and respect
that we give the … state courts, not only because of the
requirements of AEDPA but in general, we reach our result
reluctantly.” Vazquez v. Wilson, 

, 281 (3d Cir.
2008).
   10
      We are not inclined to accept the State‟s position, raised
at oral argument, that the failure to request a limiting
instruction could have been a strategic choice by the defense.
The advantage to the defense of having such incriminating
evidence admitted and repeatedly referenced without a
limiting instruction is far from apparent. Furthermore, the
State‟s suggestion that Adamson‟s counsel made a strategic
decision to avoid drawing the jury‟s attention to the
accomplice statements strains credulity since those statements
comprised the essence of the State‟s rebuttal to Adamson‟s
defense and were specifically brought to the jury‟s attention
in the State‟s closing.
   11
        The State cites Albrecht v. Horn, arguing that




                              24
       Second, most of the “overwhelming” evidence the
State points to concerns the robbery itself. The State notes
that patrons of the pool hall said a robbery occurred, guns and
dog repellant were recovered at or near the robbery scene, and
the responding officer discovered evidence of the crime left
by a suspect fleeing the scene, all of which is true but does
nothing to incriminate Adamson. The State‟s case against
Adamson rested on his own confession, which he claimed
was fabricated, and on the accomplice statements, which
directly implicated him in the robbery. Without looking to
the accomplice statements for their truth, we cannot say that
the evidence against Adamson, i.e., his confession alone, was
so overwhelming as to make the unrestricted admission of the

Adamson‟s failure to object to the admission of the
accomplice statements mandates that we review for plain
error and determine if the lack of a limiting instruction
“infected the entire trial with unfairness.” 

, 129
(3d Cir. 2007). Albrecht involved a due process challenge to
the lack of a limiting instruction for the use of prior bad acts
evidence as propensity evidence. Here, Adamson does not
expressly challenge his conviction on due process grounds.
We note, however, that the requirements for plain error are
met: an obvious error was committed, it affected Adamson‟s
substantial right to confront witnesses against him, and it
seriously affected the fairness of his trial. See United States
v. Lessner, 

, 192 (3d Cir. 2007) (holding that
plain error exists when (1) an error was committed (2) that
was plain, (3) that affected the defendant‟s substantial rights,
and (4) Error! Main Document Only.the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings).




                               25
accomplice statements of little moment. There were no
eyewitness statements identifying Adamson as taking part in
the robbery, nor was there any physical evidence tying him to
the robbery. Cf. Bond v. Beard, 

, 276 (3d Cir.
2008) (holding harmless the admission of a nontestifying co-
defendant‟s confession in violation of the Confrontation
Clause when there was extensive evidence of the defendant‟s
guilt, including the defendant‟s allegedly coerced confession
and an eyewitness who testified that he was “absolutely
certain” that the defendant committed the crime).

        We do not suggest that, had there been no error, the
evidence would have been insufficient to sustain a conviction.
As the Appellate Division noted, the issue of Adamson‟s
credibility was certainly before the jurors, and they could
have convicted Adamson because they did not believe the
claim that his confession was fabricated or coerced. Indeed,
the jury could have arrived at that conclusion by using the
accomplice statements for permissible impeachment
purposes. We also note that the prosecutor‟s use of the
statements for their impeachment value was permissible and
mitigates the possibility that the jury considered the substance
of the statements for their truth.12 See 

.

   12
       In closing, the prosecutor argued to the jurors that the
discrepancies among the statements reflected that Adamson
was lying. Even though the trial court did not limit the use of
Napier‟s and Aljamaar‟s statements, the jury was,
nevertheless, being urged to use them for impeachment
purposes only. At no point did the prosecutor or the court
suggest that the jury should use Napier‟s and Aljamaar‟s
statements for their truth in order to establish Adamson‟s
guilt.




                               26
        Nevertheless, given the strong potential for an
accomplice‟s confession that implicates the defendant to
unfairly infect the trial if considered as substantive evidence
of guilt, and given the lack of otherwise overwhelming
evidence of guilt, we have serious concerns that the verdict
was substantially influenced by the constitutional error. It is
only natural that a juror, upon hearing the out-of-court
statements from two admitted participants in the robbery
saying that Adamson was involved, would consider those
statements in assessing guilt, unless instructed otherwise. Cf.

(describing “extrajudicial
statements of a codefendant” as “devastating to the
defendant”); see also Vazquez v. Wilson, 

, 280
(3d Cir. 2008) (recognizing “the chance that the jury will
credit [a nontestifying codefendant‟s incriminating statement]
and conclude that the statement pointed to the objecting
defendant as the offender even though he could not cross-
examine the declarant”). Accordingly, we hold that the error
was not harmless and that Adamson is entitled to the relief he
seeks. 13

   13
      We recognize that there is some academic discussion
about the continued propriety of federal habeas relief in
noncapital cases to correct case-specific errors. See, e.g.,
Joseph L. Hoffman & Nancy J. King, Rethinking the Federal
Role in State Criminal Justice, 84 N.Y.U. L. REV. 791, 793 &
818 (2009) (arguing that federal habeas is necessary to correct
“structural and systemic” constitutional problems and that “as
a means of correcting or deterring routine, case-specific
constitutional errors, habeas is completely ineffectual in all
but capital cases” so federal resources should be redeployed
to reform the “state systems of defense representation” and




                              27
IV.    Conclusion

        For the foregoing reasons we will reverse the District
Court‟s denial of Adamson‟s petition, and will remand the
case for further proceedings consistent with this opinion.
Specifically, the District Court should order that the New
Jersey authorities free Adamson from custody unless he is
retried in the state courts within a reasonable period of time.




“help prevent constitutional violations from occurring in the
first place”). We must leave to others the debate over the
place that habeas relief should have in our justice system.
The law as it now stands requires us to correct errors of
constitutional magnitude, case by case, as we do here.




                              28