Singleton v. Johnson

                         REVISED, June 28, 1999

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                              No. 97-41557



                       NATHANIEL KEITH SINGLETON,

                                    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 Eastern District of Texas
                           June 22, 1999

Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges:

DUHÉ, Circuit Judge:

     We granted a certificate of appealability (“COA”) to consider:

(1) whether there are any state-court findings regarding counsel’s
knowledge of the Petitioner’s desire to appeal which should be

afforded the presumption of correctness and (2) whether, if there

are no findings to which the presumption of correctness applies,

the district court should have conducted a de novo evidentiary

hearing.      Concluding that there are no findings to which the

presumption    of   correctness    applies,    we   remand   for   a   de   novo

evidentiary hearing.

                                  BACKGROUND
     Nathaniel      Keith    Singleton       (“Petitioner”)       pled   guilty    to

aggravated assault and was sentenced to eight years of deferred

adjudication.      The State of Texas (the “State”) later moved to

revoke the Petitioner’s unadjudicated probation, arguing that he

had violated several conditions of his probation.                  The Petitioner

pled “true” to the motion to revoke and the trial court sentenced

him to ten years of imprisonment.

     The Petitioner applied for writ of habeas corpus in state

court, arguing that counsel was ineffective in failing to file and

pursue a direct appeal of the revocation proceeding on his behalf.

In support of his petition, the Petitioner attached a copy of a

letter he received from his retained counsel for the probation

revocation proceedings, Robert Smith (“Smith”), in which Smith

opined that a direct appeal would not be successful but detailed

the steps for pursuing an appeal pro se. The Petitioner maintained

that the letter proved that Smith was aware of his desire to appeal

and yet did nothing.

     Concluding      that     Smith’s        letter    demonstrated      that     the

Petitioner was properly advised of his appellate rights, the state

habeas   trial     court    recommended       that    the   Petitioner’s    habeas

application   be    denied.      The    Texas    Court      of   Criminal   Appeals

determined that the trial court’s conclusion was not supported by

the record.   It found that additional facts needed to be developed

concerning whether the Petitioner requested Smith to file an appeal

and, if so, whether Smith took any action in compliance with the

Petitioner’s wishes.         The Court of Criminal appeals ordered the


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trial court to obtain an affidavit from Smith regarding those

issues.

     On remand, the trial court obtained the requested affidavit,

which read in pertinent part:

     My name is Robert Joseph Smith. I reside in the County
     of Jefferson, State of Texas, and I came forth to make
     the following statement: I provided Legal counsel and
     representation to Nathaniel K. Singleton pursuant to a
     Motion to Revoke Probation for offense of [sic]
     Aggravated Assault. I deny that Nathaniel K. Singleton
     requested me to pursue an appeal of his conviction for
     the offense of aggravated assault. Mr. Singleton did
     request that I look into issues related to the probation
     revocation process. In addition, it should be noted that
     at the time of his revocation sentencing, Mr. Singleton
     was wholly in default of his legal fee payments. Which
     may explain why Mr. Singleton asked me to detail for him
     the steps of a pro se appeal versus asking me to pursue
     his appeal.

The trial court found that the affidavit demonstrated that Smith

was aware of the Petitioner’s desire to appeal and, therefore, had

an obligation to request permission from the sentencing court to

appeal the case.          The trial court determined that habeas relief

should    be    granted    in   part.      The    Court   of   Criminal      Appeals

apparently disagreed and denied the habeas petition without written

order.

     The Petitioner filed a second state habeas petition, arguing,

inter alia, that ineffective assistance of counsel rendered his

guilty plea involuntary.             The state habeas trial court concluded

that the Petitioner’s ineffective assistance claim was procedurally

barred    and   the   Court     of    Criminal    Appeals    denied    the   habeas

application      without     written     order.      In     November   1996,     the

Petitioner filed a habeas petition in federal district court,


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contending that his guilty plea was involuntary because he received

ineffective assistance of counsel.            He alleged that Smith was

ineffective in failing to file a direct appeal despite his request

that Smith do so and in advising him to plead “true” to the charges

in the motion to revoke.          Recommending that the Petitioner’s

application be denied, the magistrate judge found that the record

indicated that the Petitioner had not requested that Smith file an

appeal.         The   district    court      adopted    the        magistrate’s

recommendations over the Petitioner’s objection and denied habeas

relief.

      The     Petitioner   appealed   and   requested   a    COA,    which   the

district court denied.       The Petitioner then sought a COA in this

court, arguing that the state habeas trial court’s finding that

Smith was aware of the Petitioner’s desire to appeal is entitled to

a presumption of correctness because the Court of Criminal Appeals

did not issue independent findings of fact or indicate whether it

adopted or rejected the trial court’s findings.             We granted COA on

the following issues:         (1) whether there are any state-court

findings regarding Smith’s knowledge of the Petitioner’s desire to

appeal which should be afforded the presumption of correctness and

(2) whether, if there are no findings to which the presumption of

correctness applies, the district court should have conducted a de

novo evidentiary hearing.

                                 DISCUSSION

      28 U.S.C.A. § 2254(d) (West Supp. 1999) provides the standard

of   review    governing   collateral     federal   review    of    state-court


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convictions as follows:

     An application for writ of habeas corpus on behalf of a
     person in custody pursuant to the judgment of a State
     court shall not be granted with respect to any claim that
     was adjudicated on the merits in State court proceedings
     unless the adjudication of the claim--

          (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.

     The Petitioner argues that the standard of review in § 2254(d)

does not apply to his habeas petition because the state trial court

was the only state-court adjudication on the merits, and its

decision was not adverse to him.      We disagree.   Where, as here,

there is no clear state   decision, we determine, on a case by case

basis, whether the adjudication   was on the merits.   See Preston v.

Maggio, 705 F.2d 113, 116 (5th Cir. 1983).        We consider three

factors in making that determination:     (1) what the state courts

have done in similar cases; (2) whether the history of the case

suggests that the state court was aware of any ground for not

adjudicating the case on the merits; and (3) whether the state

courts’ opinions suggest reliance upon procedural grounds rather

than a determination on the merits.    See id.   In the case at bar,

the first factor suggests an adjudication on the merits.    In Texas

writ jurisprudence, usually a denial of relief rather than a

“dismissal” of the claim by the Court of Criminal Appeals disposes

of the merits of a claim.    See Jackson v. Johnson, 150 F.3d 520,


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524   (5th   Cir.   1998);   Ex    Parte     Torres,   943    S.W.2d   469,    472

(Tex.Crim.App.      1997).     The    second    factor      also   indicates   an

adjudication on the merits because the State did not raise any

procedural    grounds    for      denying    relief    on    the    Petitioner’s

ineffective assistance claim.         The third factor is inconclusive in

this case. Although the state trial court dealt favorably with the

Petitioner’s claim on the merits, the Court of Criminal appeals

silently denied relief.        Based on the first and second factors, we

conclude that the Court of Criminal Appeals’ denial of relief

constituted an adjudication on the merits.

I.    Presumption of Correctness

      The Petitioner maintains that the state trial court’s finding

that counsel was aware of his desire to appeal should be afforded

a presumption of correctness.           This argument is meritless.            We

rejected a similar argument in Micheaux v. Collins, 944 F.2d 231,

232 (5th Cir. 1991) (en banc).              In its proposed findings, the

Micheaux state habeas trial court found that if the petitioner had

been informed of a fifteen year minimum sentence, he would not have

pled guilty and would have insisted on going to trial.                   See id.

The Texas Court of Criminal Appeals denied the petitioner’s habeas

petition without written order, however.1              In his federal habeas

petition, the petitioner argued that we were bound to accept the

state habeas trial court’s proposed findings.                      Rejecting the

petitioner’s argument we stated:

      Not only were the “proposed findings” not adopted nor

      1
       See Micheaux v. Collins, 911 F.2d 1083, 1085 (5th Cir. 1990).

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       incorporated in the action of the Texas Court of Criminal
       Appeals, they are directly inconsistent with that court’s
       peremptory denial of relief.     We conclude that those
       proposed findings did not survive scrutiny by the Texas
       Court of Criminal Appeals, the final decisionmaker in
       Texas habeas cases.

Id. For the same reasons, we conclude that the state trial court’s

findings did not survive the Court of Criminal Appeals’ denial of

relief.

II.    De Novo Evidentiary Hearing

       Alternatively, the Petitioner argues that if there are no

findings to which the presumption of correctness applies, the

district court should have conducted a de novo evidentiary hearing.

We    agree.   The   Petitioner     is   entitled    to   a   full     and   fair

evidentiary hearing on the issue of whether his attorney was aware

of the Petitioner’s desire to file an appeal and, therefore, had an

obligation to do so.      See Goodwin v. Johnson, 132 F.3d 162, 182

(5th Cir. 1998) (concluding that the petitioner was entitled to an

evidentiary hearing because the state did not afford him a full and

fair evidentiary hearing on a disputed factual issue).                   “There

cannot even be the semblance of a full and fair hearing unless the

state court    actually   reached    and   decided    the     issues    of   fact

tendered by the defendant.” Id. (citations omitted).              Noting that

the habeas trial court’s proposed findings did not survive the

Court of Criminal Appeals’ denial, we stated in Micheaux that “[i]n

these circumstances, it was proper for the federal court to conduct

a hearing de novo on the voluntariness of [the petitioner’s] guilty

plea.”    Micheaux, 944 F.2d at 232.       In Micheaux, we reversed the

district court’s initial denial of the petitioner’s habeas petition

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and remanded for an evidentiary hearing.   See Micheaux v. Collins,

911 F.2d 1083, 1085 (5th Cir. 1990).



                           CONCLUSION

     Remanded for a de novo evidentiary hearing.

     REMANDED.




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