IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10270
ERNEST GEORGE MCBRIDE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
September 16, 1997
ON REHEARING
Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
We sua sponte withdraw our prior opinion at 118 F.3d 432, which held AEDPA to be
applicable, and substitute the instant opinion.
This habeas corpus case presents the question of whether Ernest G. McBride’s Sixth
Amendment right to confront and cross-examine an adverse witness was violated when his parole was
revoked on the basis of hearsay testimony. Despite being acquitted of sexual assault (the jury
deliberated five minutes), the Texas Board of Corrections nevertheless revoked McBride’s parole
solely on the basis of a police officer’s testimony as to what the alleged victim of the sexual assault
told the officer. Although the alleged victim testified at trial, she never appeared before the parole
board, and the State presented no evidence showing good cause excused the alleged victim’s absence.
After exhausting his state habeas remedies, McBride sought federal habeas relief. The magistrate
judge rejected McBride’s contentions, and the district court adopted the magistrate’s conclusions of
fact and law. We granted a Certificate of Appealability on the sole question of whether the State
deprived McBride of the right to cross-examine and confront an adverse witness during his parole
revocation hearing. Finding a violation of McBride’s Sixth Amendment rights, we REVERSE and
REMAND this case to the district court with directions to send the case back to the parole board so
that McBride may receive a new revocation hearing.
BACKGROUND
Ernest G. McBride was sentenced to two life sentences in 1976 for aggravated robbery. He
was paroled in 1988. Approximately four years after his release on parole, McBride was charged
with sexually assaulting Tawanna Illescas. After McBride was initially arrested, he was released
because Illescas declined to press charges. However, law enforcement officers thereafter ran
McBride’s name through an FBI computer and discovered that he had a criminal record. Law
enforcement then contacted Illescas, and at that point she agreed to press charges. McBride was
subsequently rearrested and a grand jury charged him with sexual assault.
In the meantime, a warrant ordering McBride’s arrest on a parole-violation charge was
issued.1 In particular, the basis for arresting McBride was that he violated Rule 2 of his parole, which
provided the following: “I recognize that my parole release is conditional and agree to abide by the
following terms and conditions: . . . 2. Obey all municipal, county, state, and federal laws.” On June
1, 1992, Parole Officer Thomas Blevins explained McBride’s rights in the parole revocation process
to him and informed McBride that he was charged with violating Rule 2 as a result of Illescas’s
accusations. McBride refused to sign the documents that showed that he was so informed. McBride
did, however, request a preliminary revocation hearing, which was held on June 15, 1992.
1
McBride’s parole officer, Thomas Blevins, filled out an emergency warrant, and he described the
“circumstances of the offense” as follows:
Complainant stated she was walking on a sidewalk when releasee grabbed her and stated
“You white bitch, if you call the police I will kill you”. Releasee put one hand over
complainant’s mouth and then hit her several times. Releasee then dragged complainant into
a parking lot[] pay attendant booth and forcibly had vaginal intercourse.
2
A. The Preliminary Revocation Hearing2
At the preliminary hearing, McBride was informed that he had the right to call witnesses on
his behalf. McBride immediately became concerned and responded as follows:
What [am] I supposed to do? They, they can’t even find her [i.e., Illescas] right now.
What [am] I supposed to do, go l ook for her, tell her to come down here and
straighten this out for me, sir?
The hearing officer responded: “No, we’ll do that for you. We’ll find the complainant.” (Emphasis
added.) McBride is then heard saying, “I sure hope so.” Further along into the preliminary hearing,
McBride once again asked the hearing officer whether “the complainant [was] supposed to be here,”
to which the hearing officer responded, “[n]ot at a preliminary hearing.”
The hearing officer ultimately concluded that there was probable cause to believe that
McBride sexually assaulted Illescas, so he recommended a hearing to determine whether McBride’s
parole should be revoked. The final revocation hearing was set for August 10, 1992.
B. McBride’s Subsequent Acquittal on the Sexual Assault Charge
In July 1992 (after the preliminary hearing, but before the final revocation hearing), the jury
acquit ted McBride of the sexual assault charge. McBride asserts, and the State does not indicate
otherwise, that the jury deliberated for only five minutes before reaching a not guilty verdict. The
record also shows that Illescas’s credibility was a hotly contested issue.
C. The Parole Revocation Hearing
2
Both the preliminary revocation hearing as well as the final revocati on hearing were tape
recorded. The testimony, however, was never transcribed. In addition, we note that much of the tape
is hard to hear because of background noise and because participants simply did not speak loud
enough. For example, McBride’s attorney cross-examined detective Stanley McNear (the State’s
only witness), yet on our copy of the tape, the attorney cannot be heard. Only McNear’s answers are
audible.
Moreover, side A of the tape cuts off as McBride’s attorney is speaking and begins on side B with
McBride in mid-sentence saying “. . . we don’t get along.” We have listened to the tape numerous
times and we are unable to say with any degree of certainty that side B picks up where side A left off.
We must therefore conclude that some statements made at the hearing were never picked up on the
audio tape, thereby depriving us of a complete source of objective evidence of what occurred during
the parole revocation hearings. This is troubling for obvious reasons: Because these hearings
implicate constitutionally protected liberty interests (here, McBride faced a life sentence), it is
paramount that meaningful appellate review be based on a complete and accurate record.
3
Despite McBride’s acquittal, the revocation hearing was held as scheduled. Attorney
Maribeth Murphy was appointed to represent McBride at the hearing. Although Illescas testified at
trial, she was not called by the State to testify at the parole revocation hearing. Instead, only three
witnesses appeared: Parole Officer Blevins, Dallas police detective Stanley McNear, and McBride.3
Before any of the witnesses testified, Blevins told the participants that detective McNear had
not yet arrived. At that point, McBride interrupted the proceedings, stating, “How can they, uh, have
a witness . . .,” but then was immediately told to “talk to your at torney.” McBride is then heard
discussing the matter with his attorney, complaining that lies were told at the trial and that “how can
they just come in here and, uh, say what they got to say. I don’t understand that.” McBride’s
attorney then responded t hat the revocation hearing is different from the trial, there is a different
standard of evidence in parole revocation hearings as opposed to jury trials, and that the State is
entitled to call witnesses. In response to McBride’s question about witnesses called on his behalf,
his attorney responded (rather curtly) that McBride had never given her a list of witnesses. Then
McBride’s attorney immediately said the following: “But you’re certainly here to testify, are you not?
To testify on your own behalf. To confront these witnesses at the hearing.”
Blevins was the first to testify. He stated that McBride told him in July 1992 that he did not
force Illescas to have sexual intercourse with him. Detective McNear then testified that Illescas told
him that McBride “dragged her to a parking booth, struck her several times, threatened to kill her and
forced her to have sexual intercourse.” Illescas also told McNear that McBride took $117 from her.
McNear testified that a hospital examination that same day showed that Illescas had been involved
in sexual intercourse, although McBride had used a condom. McNear also testified that Illescas had
bruises and scratches on her face. The medical report, however, was never offered into evidence, and
McNear testified that Illescas was in Colorado at the time of the hearing.
McBride’s counsel did not formally object to McNear’s testimony, but at the close of the
evidence, she argued that McBride’s parole should not be revoked because the only evidence offered
3
Another police officer was scheduled to testify, but he never showed up.
4
against McBride was hearsay. McBride thereafter testified that Illescas consented to have sex with
him and that he did not threaten or strike her.
Solely on the basis of McNear’s testimony, the hearing officer concluded that McBride
engaged in unconsented sexual intercourse with Illescas and that he threatened to inflict bodily injury
on Illescas. Both the hearing officer and the field officer recommended revocation of McBride’s
parole. On September 10, 1992, McBride’s parole was revoked and he was to serve out the rest of
his life sentence, excluding the time during which he was out on parole.
PROCEDURAL HISTORY
In August 1994, McBride filed a habeas petition in state court. The trial court denied
McBride’s petition, concluding in three brief sentences that McBride’s Sixth Amendment rights were
not violated.4 A judge of the Texas Criminal Court of Appeals denied habeas relief based on the trial
court’s findings.
McBride then filed a writ of habeas corpus in federal court on June 28, 1995, essentially
rearguing the claims he made in state court. The magistrate judge denied McBride’s petition,
concluding, among other things, that the parole revocation hearing did not violate McBride’s rights
under the Due Process Clause o f the Fourteenth Amendment. McBride filed objections to the
magistrate’s report on February 26, 1996, however, the district court adopted the magistrate’s
conclusions of fact and law and denied habeas relief on February 27, 1996. McBride then filed a
4
The trial court stated the following:
3. The Court finds that the procedural due process exhibited by the documents provided
shows that Applicant was provided a proper hearing and due process.
4. The Court finds that Applicant’s complaints about his parole being revoked are without
merit and recommends that they be denied.
5. The Court finds that Applicant has not been denied any rights guaranteed by him by the
Constitution of the United States . . . .
5
notice of appeal on March 14, 1996. On March 18, 1996, the district court denied a Certificate of
Probable Cause (CPC). On July 1, 1996, this court treated McBride’s application for CPC as an
application for a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1) and granted
a COA on the issue of “whether McBride is entitled to relief on grounds that the state’s evidence at
his parole revocation hearing consisted of hearsay. . . . Farrish v. Mississippi State Parole Bd., 836
F.2d 969 ([5th Cir.] 1988).”
DISCUSSION
I. STANDARD OF REVIEW
We granted a COA on the sole quest ion of whether McBride’s Sixth Amendment right to
confront and cross-examine adverse witnesses was violated. As such, our review would ordinarily
be limited to that issue alone. See Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
However, the Supreme Court’s decision in Lindh v. Murphy, 117 S. Ct. 2059 (1997) changes our
previous conclusion that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub.L. No. 104-132, 110 Stat. 1214 (1996) applies to this case. In Lindh, the Supreme Court held
that in noncapital cases, chapter 153 of the AEDPA does not apply retroactively. 117 S. Ct. at 2068.
Because § 2254 is implicated in this case and because § 2254 is part of chapter 153 of the AEDPA,
the Court’s holding in Lindh applies to this appeal.
Prior to Lindh, our cases held that the AEDPA applied to all habeas petitions pending on the
effective date of the statute. Our polestar of guidance was Drinkard v. Johnson, 97 F.3d 751 (5th
Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997), in which we concluded that the AEDPA did not
raise the retroactivity concerns highlighted in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.
Ct. 1483, 128 L.Ed. 2d. 229 (1994). However, Lindh’s holding now guides our analysis of this issue.
See Blankenship v. Johnson, 118 F.3d 312, 315 (5th Cir. 1997); Green v. Johnson, 116 F.3d 1115,
1119-20 (5th Cir. 1997).
Accordingly, because McBride’s federal habeas petition was filed before the effective date of
the AEDPA, Lindh compels the conclusion that the AEDPA does not apply to McBride’s habeas
6
petition, and we construe our previous grant of a COA as a grant of a CPC.5 Unlike the more narrow
standard of review applicable to habeas petitions that come within the AEDPA, Lackey v. Johnson,
116 F.3d at 151-52, a grant of a CPC on a particular issue nonetheless brings up all issues raised in
a petitioner’s federal habeas petition, id. at 152 (authority cited therein).
This different, broader scope of review, however, does not change the result in this case, for
we have reviewed all of McBride’s claims and conclude that only his Sixth Amendment claim has
merit. This case therefore presents a pure question of law, such that we must determine whether
McBride has made a “substantial showing of a denial of [a] federal right.” Barefoot v. Estelle, 463
U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).
II. THE CONFRONTATION CLAUSE AND PAROLE REVOCATION HEARINGS
McBride claims that his right to procedural due process was violated because the State
revoked his parole in violation of his Sixth Amendment right to confront and cross-examine adverse
witnesses. Specifically, McBride asserts (and the State does not disagree) that the sole evidentiary
basis for revoking his parole consisted of hearsay evidence introduced by officer McNear, evidence
that consisted of Illescas’s statements to McNear about what happened on the night Illescas was
allegedly assaulted. Accordingly, argues McBride, he was denied the opportunity to cross-examine
and confront Illescas in violation of the Sixth Amendment. We agree.
In the seminal decision of Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held
that the constitutional right to procedural due process attaches to parole revocation hearings. In
reaching this conclusion, the Court recognized that “the concept of due process is flexible,” but that
its flexibility “is a recognition that not all situations calling for procedural safeguards call for the same
kind of procedure.” Id. at 481. As such, although a formal trial-like procedure is not required,6 the
5
Because of the holding in Lindh, we sua sponte withdraw our prior opi nion at 118 F.3d 432,
which held AEDPA to be applicable, and substitute the instant opinion.
6
Carchman v. Nash, 473 U.S. 716, 725-26 (1985); Hamilton v. Lyons, 74 F.3d 99, 105 (5th Cir.
1996); United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995), cert. denied, 116 S.Ct. 1031
(1996), and opinion clarified, 77 F.3d 811 (5th Cir. 1996).
7
Court, after concluding that the Due Process Clause of the Fourteenth Amendment provided at least
informal procedural protections to parolees, outlined the minimum constitutional requirements for
the two critical stages in the parole revocation process.
First, states conduct a preliminary hearing, in which the State determines “whether there is
probable cause or reasonable ground to believe that the arrested parolee has committed acts that
would constitute a violation of parole conditions.” 408 U.S. at 485. Because there may be a
substantial lag time between the parolee’s arrest and subsequent determination of whether parole
should be revoked, the Court recognized the need for “some minimal inquiry” which would take place
“as promptly as convenient” to determine whether the parolee should be incarcerated pending a final
determination by the parole board. Accordingly, at the preliminary hearing stage, the Court
suggested at least three procedural protections:
[1] the parolee should be given notice that the hearing will take place and that its
purpose is to determine whether there is probable cause to believe he has committed
a parole violation. The notice should state what parole violations have been alleged.
[2] At the hearing the parolee may appear and speak in his own behalf; he may bring
letters, documents, or individuals who can give relevant information to the hearing
officer. [3] On request of the parolee, persons who have given adverse information
on which parole revocation is to be based are to be made available for questioning in
his presence. However, if the hearing officer determines that the informant would be
subjected to risk of harm if his identity were disclosed, he need not be subjected to
confrontation and cross-examination.
Id. at 486-87 (emphasis added). We have emphasized the Supreme Court’s words because they
indicate that the Court surely was not suggesting that a parolee has the right, in every preliminary
hearing, to confront and cross-examine adverse witnesses. The right, as the Court subsequently
explained, is a “conditional one”—the condition being the parolee’s affirmative request to confront
an adverse witness. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).
Second, if the State determines that there is probable cause for believing the parolee violated
the terms of his parole, the State must afford the parolee (if he or she so chooses) a final revocation
hearing whose purpose goes beyond a determination of probable cause “to a final evaluation of any
contested relevant facts and consideration of whether the facts as determined warrant revocation.”
408 U.S. at 438. The Court provided six, essential protections required by the Due Process Clause:
8
[1] written notice of the claimed violations of parole; [2] disclosure to the parolee of
evidence against him; [3] opportunity to be heard in person and to present witnesses
and documentary evidence; [4] the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good cause for not allowing
confrontation); [5] a “neutral and detached” hearing body such as a traditional parole
board, members of which need not be judicial officers or lawyers; and [6] a written
statement by the factfinders as to the evidence relied on and reasons for revoking
parole
.
Id. at 489 (emphasis added). The Court stressed that the final revocation hearing should be a “narrow
inquiry,” yet sufficiently flexible so that the parole board may “consider evidence including letters,
affidavits, and other material t hat would not be admissible in an adversary criminal trial.” Id.
(emphasis added). The goal always is to ensure that “the finding of a parole violation will be based
on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the
parolee’s behavior.” Id. at 484 (emphasis added).
We have since added some flesh to the basic Morrissey framework. In Farrish v. Mississippi
State Parole Bd., 836 F.2d 969 (5th Cir. 1988), we declined to afford a commissioner of corrections
qualified immunity for permitting hearsay testimony in a parolee’s preliminary hearing. We began by
noting the inherent problems with hearsay testimony, which we said “presents a two-fold problem:
it prevents the parolee from confronting and cross-examining the declarant, and unreliable hearsay
undermines the accuracy of the fact-finding process.” Id. at 978. We then proceeded to apply these
principles to a “classic example of when the use of hearsay impermissibly violates the right
[guaranteed in Morrissey] to confront and cross-examine the declarant.” Id. In an analysis of facts
virtually identical to those presented in this case, we concluded as follows:
The only evidence that Farrish committed the alleged parole violation—the sale of
marijuana—was Mohon’s [i.e., the hearsay declarant] testimony. Mohon’s self-
serving statements contradicted Farrish’s version of the same events, and the
statements were inherently unreliable because if believed, they shifted a potential
conviction for drug dealing from Mohon to Farrish. In short, the question of whether
Farrish sold marijuana required a credibility choice between the two witnesses.
However, rather than appearing as Farrish requested, Mohon testified in a most
damaging way—through the police officers. The admission of Mohon’s hearsay
statements effectively deprived Farrish of his right to confront the adverse witness
whose information provided the basis for parole revocation in a situation where his
interest in exercising that right was paramount.
Id.; accord United States v. McCormick, 54 F.3d at 226 n.49 (dictum).
9
This case involves a denial of McBride’s right to confront and cross-examine an adverse
witness during the final revocation hearing. Although Farrish involved a preliminary revocation
hearing, we think the principles laid down in that case apply with equal force here. The charge of
sexual assault turned on a credibility choice between McBride and Illescas, yet McBride was not
provided an opportunity to confront Illescas and perhaps cast a shadow on her credibility. In
addition, McBride was acquitted of the sexual assault charge and the only evidence presented in the
parole hearing (and the evidence the parole board relied on in its decision to revoke parole) consisted
of the hearsay testimony presented by detective McNear about what Illescas told him happened on
the night in question. McBride faced a life sentence if his parole was revoked, and we conclude that
the evidence admitted at the revocation hearing violated McBride’s constitutional right to procedural
due process.
The State concedes that the only evidence offered against McBride at the revocation hearing
consisted of hearsay. The State’s only argument in this appeal is that because McBride failed to
object to the hearsay t estimony as it was being presented, he cannot now complain that his Sixth
Amendment rights were violated. We reject this contention for a number of reasons.
First, we do not believe, as the State asserts, that McBride failed to “adequately invoke his
right to confront and cross-examine the victim.” Our review of the record reveals that on at least
three occasions, McBride clearly expressed an intent to have Illescas present during the revocation
proceedings: (1) at the preliminary hearing, McBride stated that he was concerned about being able
to locate Illescas, t o which the hearing officer replied, “we’ll do that for you. We’ll find the
complainant”; McBride then responded, “I sure hope so”; (2) at another point in the preliminary
hearing, McBride asked the hearing officer whether Illescas was “supposed to be here,” and the
hearing officer said, “[n]ot at a preliminary hearing”;7 and (3) at the beginning of the parole hearing,
McBride complained about the proposed testimony of detective McNear because, in McBride’s eyes,
7
Of course, this statement is not entirely accurate. In Morrissey, the Supreme Court
unambiguously stated that if the parolee requests the presence of an adverse witness, that adverse
witness must be produced unless good cause excuses the witness’s absence. 408 U.S. at 487.
10
that testimony would reflect the lies told at trial. In addit ion, at the close of the “evidence,”
McBride’s attorney argued that McBride’s parole should not be revoked because the only evidence
against McBride consisted of hearsay. And, as we have pointed out in footnote 2, the tape recording
of the final revocation hearing does not present us with a full accounting of what happened at that
hearing, so we cannot accept the State’s suggestion that neither McBride nor his attorney objected
to the introduction of hearsay testimony.8
In light of all of these facts, we simply cannot conclude that McBride failed to invoke his right
to confront and cross-examine Illescas at the revocation hearing—especially because her testimony
(offered, as it was, through detective McNear) was the only evidence introduced against McBride.
McBride was told in no uncertain terms by the hearing officer that they would find Illescas for him,
and because that statement was made on the heels of McBride’s concern over Illescas’s appearance
at the revocation proceedings, it was reasonable for McBride to rely on the State’s assurances that
Illescas would appear before the parole board. We recognize that McBride’s invocation of his Sixth
Amendment rights was not as clear as it could have been. However, we do not believe that
preserving the Sixth Amendment right to confront and cross-examine adverse witnesses requires
parolees to invoke their right in only one way. We have listened (several times) to the tape of the
revocation hearings, and we are convinced that McBride invoked his right (to no avail) to confront
and cross-examine Illescas.
Second, we reject the State’s contention that we should deny McBride habeas relief because
he could have done more (short of cross-examining Illescas) to cast doubt on Illescas’s version of the
events. The State cites to our decision in McCormick, 54 F.3d 214, for the proposition that “if cross-
examination of [Illescas] was so critical to his defense he or counsel could have simply produced a
statement of facts of her testimony at the criminal trial where he had been found not guilty. Thus, an
8
Indeed, McBride asserts in his pro se brief on appeal that object ions were made by counsel
regarding the hearsay evidence; however, he was never provided a copy of the hearing tapes to
prepare his appeal. Accordingly, McBride’s refutation of the State’s claim o f waiver is of limited
persuasive value.
11
alternative was clearly available to McBride which he did not pursue.” The State is correct in its
position that McBride could have done all of these things, and in fact, McBride did introduce some
evidence from the criminal trial during the revocation hearing.
However, the State’s reading of McCormick goes too far because the same argument could
have been made in Farrish and every other case in which the State relies on the hearsay testimony of
a single witness to revoke an individual’s parole. Such a result, we think, cuts the heart out of
Morrissey’s guarantee of the right to confront and cross-examine adverse witnesses at final
revocation hearings. Moreover, dictum in McCormick supports our conclusion. Citing Farrish,
here’s what we said in McCormick: “[w]e are troubled by the district court’s apparent admission of
Officer Velasquez’ testimony regarding the CI. Had that been the only evidence of McCormick’s
drug possession, we are confident that the district court would have erred in relying on it as
competent evidence, . . . unless, of course, the court made a specific finding that good cause excused
the CI from testifying.” 54 F.3d at 226 n.49 (emphasis added). McCormick’s reaffirmance of the
principles underlying Farrish compels our conclusion today.
Finally, in its letter brief to this court, the State suggests that Illescas could not attend the
hearing because she was in Denver, Colorado. To the extent the State suggests that good cause
excused Illescas’s absence from the hearings, we reject the argument because there was no finding
of good cause or evidence of why Illescas should not appear sufficient to overcome or outweigh
McBride’s right to confrontation or cross-examination.
CONCLUSION
Finding that the State violated McBride’s Sixth Amendment right to confront and cross-
examine Illescas during his parole revocation hearing, we REVERSE the district court’s denial of
habeas relief, and REMAND this case to the district court with directions to send the case back to
the parole board so that McBride may receive a parole revocation hearing consistent with the Due
Process Clause of the Fourteenth Amendment.
REVERSED and REMANDED.
12
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