Gochicoa v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 99-50596
_______________

PEDRO L. GOCHICOA,

Petitioner-Appellee-
Cross-Appellant,

VERSUS

GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellant-
Cross-Appellee.

_________________________

Appeals from the United States District Court
for the Western District of Texas
_________________________

December 29, 2000

Before SMITH and DENNIS, Circuit
Judges, and HARMON, District Judge.* Gary Johnson, on behalf of the State of
Texas (“the state”), appeals the grant of a writ
JERRY E. SMITH, Circuit Judge: of habeas corpus under 28 U.S.C. § 2254, and
the petitioner, Pedro Gochicoa (“Gochicoa”)
cross-appeals the district court’s refusal to find
*
District Judge of the Southern District of prejudice from ineffective assistance of
Texas, sitting by designation. counsel. We affirm in part, reverse in part,
and render judgment in favor of the state. from which Gochicoa had emerged.

I. As they searched, a young man named Mi-
The district court originally granted habeas chael Carrasco approached the officers and
relief to Gochicoa based on violations of the told them he had been watching the alley from
Confrontation Clause via hearsay testimony an apartment window approximately 100 to
and related argument. See Gochicoa v. 150 feet away. Carrasco reported that when
Johnson (“Gochicoa I”), 972 F. Supp. 380 Gochicoa rounded the corner of the alley and
(W.D. Tex. 1996). Concluding that the saw Prieto, he quickly reached into his pocket
admission of the hearsay evidence did not vio- and made a motion as if he were throwing
late the Confrontation Clause, we reversed. something to the ground. Carrasco, however,
See Gochicoa v. Johnson (“Gochicoa II”), 118 did not actually see anything leave Gochicoa’s
F.3d 440 (5th Cir. 1997). On remand, the hand. Carrasco led the officers in the direction
district court again granted habeas relief, this of Gochicoa’s gesture, where they found a
time based on the constructive complete denial small red balloon containing nineteen dosage
of counsel. See Gochicoa v. Johnson units of heroin. The officers found no other
(“Gochicoa III”), 53 F. Supp. 2d 943 (W.D. objects or refuse on the ground in the area.
Tex. 1999).
Police arrested Gochicoa two days later and
A. charged him with felony possession of heroin.
While responding to a call complaining of a At trial, the state did not identify the
“suspicious person,” Officer Victor Prieto of confidential informant or call the informant to
the Pecos, Texas, police department testify, but mentioned the telephone call from
encountered Jorge Gochicoa (“Jorge”), Pedro the informant several times during its case in
Gochicoa’s brother, sitting in a parked car chief. During his opening statement, the pro-
near an apartment building.1 As Prieto spoke secutor made the following remark: “Deputy
to Jorge, Pedro approached the car from an Gomez . . . pulls up and tells [Prieto] that he
alley, greeted Prieto “nervously,” and said to has gotten a tip from a confidential informant
his brother “let’s go.” Prieto questioned the concerning the defendant, and they start
Gochicoas briefly and then allowed them to searching the area where [Gochicoa] was com-
leave. ing from for contraband that has been left
behind.”
Immediately after the brothers left, Deputy
Andy Gomez arrived and told Prieto that the During the prosecutor’s direct examination
sheriff’s department had also received a call, of Prieto, the following exchange took place:
this time from a confidential informant, report-
ing that a man named Manuel Salcido was in Q: Did you say anything to [Gochicoa]?
the area selling heroin to Gochicoa. Gomez
and Prieto then proceeded to search the alley A: No, sir.

Q: Did you have any reason at this point
1
This statement of the facts and proceedings in time to stop him, to investigate any
underlying Gochicoa’s conviction is adopted from crime that may have been committed, or
Gochicoa II, 118 F.3d at 441-44.

2
 do anything else concerning [Gochicoa]? Q: Did you and Deputy Gomez have a
conversation?
A: No, sir, I had no reason.
A: Yes, sir.
Q: Did you in fact allow them to drive
away? Q: Without telling me what he said,
based upon that conversation did you
A: Yes, sir. and Deputy Gomez undertake a search?

Q: At about that time as they were A: Yes, sir, we did.
driving away, did a peace officer
approach your position? Q: And where were you looking at?
What area were you searching?
A: Yes, sir.
A: We was looking on the alley mostly
Q: What officer was that? from where I had seen [Gochicoa]
coming from.
A: It was Reeves County Sheriff’s
Deputy Andy Gomez. Q: All right. And what were you
looking forSSyourself, personally?
Q: Okay. And what was Deputy Go-
mez’s purpose in being thereSSdo you A: Well, we were looking for any kind
have any idea? of drugs.

A: He advised me that he had some in- Gochicoa’s counsel failed to object to this
formation that [Gochicoa] was selling continuing line of questioning.
....
On redirect examination of Prieto, the pro-
MR. PAINTER [Gochicoa’s attorney]: secutor again introduced the confidential in-
Your Honor, I object. That’s hearsay. formant’s telephone message into evidence
without objection:
MR. ZAVODA [prosecutor]: I’ll
withdraw the question, Your Honor. Q: Now you mentioned the name of
Manuel Salcido when you were
THE COURT: Sustained. answering questions of Mr. Painter.

Gochicoa’s counsel did not ask that the an- A: Yes, sir.
swer be stricken or that the jury be instructed
to disregard the testimony. Moreover, despite ...
the ruling, the prosecutor elicited testimony
from Prieto that indirectly apprised the jury of Q: You called him the other suspect.
the substance of the informant’s out-of-court Was he another person that was
statement: supposed to be possessing heroin or

3
 selling heroin? Again, Gochicoa’s counsel did not object.
At closing, the prosecutor cited the substance
... of the informant’s tip as direct evidence
against Gochicoa.
A: Yes, sir.
What do we know by direct
... evidence? . . . We know that
[Gochicoa] was out at the project on
Q: And [Manuel Salcido’s residence is] August 15, 1991, at about five or 5:15
the general location that [Gochicoa] was P.M. We know his brother Jorge was
coming from, is that correct? waiting for him to come back from
where he was at. We know that when
A: That is correct. he saw Victor Prieto SS Officer
Prieto SSthat Pedro got nervous. We
When Gomez took the stand, the heard that from two different witnesses,
prosecutor again acknowledged the earlier Officer Prieto and Michael Carrasco.
ruling and admonished Gomez not to reveal We know that Deputy Gomez had
the substance of the statement. information from a confidential
informant that Manuel Salcido was in
Q: You cannot tell me what the this area in his home selling heroin and
confidential informant told you, but that [Gochicoa] was buying it at this
based upon that information did you particular time.
proceed to the 1000 block of East 10th
in Pecos, Reeves County, Texas? Gochicoa’s counsel did not object to this
argument.
A: Yes, I did.
On appeal, Gochicoa’s attorney filed an
... Anders brief2 and withdrew from the case.
Gochicoa then filed an appeal pro se, and the
Q: Again, based upon the information Texas Court of Appeals affirmed his
you received from the confidential conviction in an unpublished opinion.
informant, did you and Victor Gochicoa filed a petition for writ of habeas
PrietoSSOfficer Prieto SSconduct a corpus with the Texas Court of Criminal
search of the area where Officer Prieto Appeals, which denied relief without written
was at? order. Gochicoa then filed the instant federal
habeas petition.
A: Yes, we did.
Gochicoa asserts ineffective assistance of
Q: What were you looking for? counsel and violation of his Sixth Amendment
right of confrontation based on the hearsay ev-
A: I was looking for heroin is what I
was looking for.
2
See Anders v. California, 386 U.S. 738
(1967).

4
idence. The district court found that the con- admission of unreliable hearsay may
fidential informant’s statements were offered nonetheless be harmless in light of other
for the truth of the matter asserted, that they evidence at trial; by examining whether
were hearsay under Texas law, that the hearsay was “crucial” or “devastating,”
hearsay violated Gochicoa’s rights under the the court seeks to determine whether the
Confrontation Clause of the Sixth impermissible hearsay evidence was suf-
Amendment, and that the error had a ficiently damaging to the defense to
substantial and injurious effect on the verdict warrant reversal.
under Brecht v. Abrahamson, 507 U.S. 619
(1993) (setting forth “substantial and injurious Id. We reasoned that the “crucial” and “dev-
effect” test for harmless error on habeas astating” prong of the Confrontation Clause
review). See Gochicoa I, 972 F. Supp. at 392. test is “therefore somewhat redundant in light
The court therefore granted the writ, declining of the harmless error rule.” Id. at 447 n.5.4
to reach Gochicoa’s claims of ineffective
assistance of counsel. See id. We concluded that the most important pro-
secution witness was not the hearsay declar-
B. ant, but rather Carrasco, whom Gochicoa had
On appeal, we determined that the ref- a full and fair opportunity to cross-examine:
erences to the confidential informant’s tip were
hearsay under Texas law but that the wrongful [T]he tip from the informant standing
admission did not violate the Confrontation alone did not connect Gochicoa to the
Clause under Dutton v. Evans, 400 U.S. 74, balloon of heroin found in the public
87 (1970). See Gochicoa II, 118 F.3d at 445- alleyway; only Carrasco’s testimony
48.3 Although the hearsay did not fall within established an immediate, albeit
a firmly rooted exception to the hearsay rule or circumstantial, link between Gochicoa
carry any particularized indicia of reliability, it and the drugs. Carrasco testified that,
was “neither crucial to the prosecution nor as soon as Gochicoa spotted Officer
devastating to the defense in the context of the Prieto, he reached into his pocket and
trial as a whole.” Id. at 447. made a gesture as if he were throwing
something to the ground. On the basis
We explained the Dutton “crucial” or of this information alone, Deputy
“devastating” test as follows: Gomez found the balloon filled with
heroin. Both Officer Prieto and Deputy
The determination of whether the Gomez testified that there were no other
evidence is “crucial” or “devastating,”
. . . recognizes that the erroneous
4
Gochicoa II interpreted United States v. Sar-
miento-Perez, 633 F.2d 1092 (5th Cir. Unit A Jan.
3
Because Gochicoa filed his habeas petition 1981), as establishing that, “although ‘[m]uch has
before enactment of the Antiterrorism and Effective been made of the “crucial” and “devastating” lang-
Death Penalty Act of 1996 (“AEDPA”), Pub. L. uage in Dutton . . . ,’ [the] test simply restates [the]
No. 104-132, 110 Stat. 1214 (1996), we applied harmless error rule.” Gochicoa II, 118 F.3d at 447
pre-AEDPA standards of review. See Gochicoa II, n.5 (quoting Sarmiento-Perez, 633 F.2d at 1103
118 F.3d at 444. n.6).

5
 objects or refuse on the ground within a standard for measuring counsel’s
ten yard radius of the area. Carrasco’s performance under the first prong of
testimony, coupled with Gochicoa’s [Washington] is reasonably effective
nervous behavior, presented strong assistance. That is, the defendant must
circumstantial evidence that Gochicoa show that counsel’s representation fell
had exercised direct physical control below an objective standard of
over the heroin. reasonableness. Our scrutiny of
counsel’s performance must be highly
Id. at 447. We therefore reversed the grant of deferential, and we must make every
the writ of habeas corpus and remanded for effort to eliminate the distorting effects
consideration of Gochicoa’s remaining claims. of hindsight . . . . [T]here is a strong
See id. at 448. presumption that counsel's conduct falls
within the wide range of reasonable
C. professional assistance.
On remand, the district court considered
Gochicoa’s claim of ineffective assistance of To satisfy the prejudice prong of
counsel, based on his attorney’s failure to [Washington], the defendant must show
object to the inadmissible hearsay and to seek that there is a reasonable probability
disclosure of the informant’s identity.5 See that, but for counsel’s unprofessional
Gochicoa III, 53 F. Supp. 2d at 943. Unless errors, the result of the proceeding
there is actual or constructive complete denial would have been different. A
of the assistance of counsel, a petitioner reasonable probability is a probability
asserting deficiencies in counsel’s performance sufficient to undermine confidence in the
must satisfy the two-prong test articulated in outcome. The defendant need not show
Strickland v. Washington, 466 U.S. 668, 692- that counsel’s deficient conduct more
93 (1984). likely than not altered the outcome in
the case[,] [b]ut it is not enough . . . that
This court has described Washington as the errors had some conceivable effect
follows: on the outcome of the proceeding.

To obtain relief, a criminal Motley v. Collins, 18 F.3d 1223, 1226 (5th
defendant must first demonstrate that Cir. 1994) (internal citations and quotation
counsel’s performance was deficient. marks omitted).
The defendant must also demonstrate
that counsel’s deficient performance Relying on Harris v. Warden, 152 F.3d 430
prejudiced the defense. The proper (5th Cir. 1998), cert. denied, 526 U.S. 1053
(1999); White v. Johnson, 153 F.3d 197 (5th
Cir. 1998), cert. denied, 525 U.S. 1149
5
The court noted that Gochicoa did not (1999); and Mayabb v. Johnson, 168 F.3d 863
independently develop the two grounds, because (5th Cir.), cert. denied, 528 U.S. 969 (1999),
they are both dependent on the trial hearsay. See the district court held that it was precluded
Gochicoa III, 53 F. Supp. 2d at 955. Gochicoa from finding Washington prejudice on account
likewise fails independently to develop the two of our holding in Gochicoa II that the
grounds on appeal.

6
erroneous admission of hearsay was harmless. When a criminal defendant receives no
See Gochicoa III, 53 F. Supp. 2d at 950. The meaningful assistance from his court-appointed
court found a constructive complete denial of lawyer, he is constructively denied his Sixth
assistance of counsel, however, concluding Amendment right to counsel and need not
that the errors of counsel were so egregious prove Washington prejudice.8 “A constructive
that the prosecution’s case was never denial of counsel occurs in only a very narrow
subjected to meaningful adversarial testing, spectrum of cases where the circumstances
and therefore granted habeas relief. See id. at leading to counsel’s ineffectiveness are so
950, 957. egregious that the defendant was in effect
denied any meaningful assistance at all.”
Gochicoa moved to amend the judgment to Jackson, 150 F.3d at 525 (quoting Childress,
add an alternative basis, namely that the writ 103 F.3d at 1229).
was also granted under the Washington test.
The court denied the motion but granted a cer- We have found constructive denial in cases
tificate of probable cause, allowing Gochicoa involving the absence of counsel from the
to appeal its interpretation of the preclusive ef- courtroom, conflicts of interest between
fect of our previous opinion. defense counsel and the defendant, and official
interference with the defense; and have stated
II. that constructive denial will be found when
Gochicoa’s trial counsel, Ted Painter, failed counsel fails to subject the prosecution’s case
to object to the inadmissible hearsay and to to any meaningful adversarial testing. See id.
seek disclosure of the confidential informant’s For example, where counsel’s sole duty was to
identity under one of the exceptions execute a waiver of petitioner’s right to jury
enumerated in TEX. R. CRIM. EVID. 508.6 The trial, and therefore counsel was appointed one
district court held that these failures to two minutes before the plea, never
constituted a constructive complete denial of investigated the facts, never discussed the
counsel and therefore granted the writ without applicable law with petitioner, and never
considering Washington prejudice. See Gochi- advised petitioner of the rights petitioner was
coa III, 53 F. Supp. 2d at 956-57. We review surrendering, petitioner was constructively
findings of fact for clear error and conclusions denied counsel. See Childress, 103 F.3d at
of law de novo. See Gochicoa II, 118 F.3d at 1223-24, 1228 (Petitioner “does not argue that
444. Both of the Washington prongs and con- he had a bad lawyer in the . . . proceedings,
structive denial of counsel are mixed questions but that he had none at all, except for the
of law and fact subject to de novo review.7 purpose of waiving a jury trial.”).

In contrast, we have refused to find
constructive denial where defense counsel
6 investigated only certain issues, where
The rule allows the state to refuse to disclose
an informant’s identity, subject to three exceptions.
See Gochicoa III, 53 F. Supp. 2d at 956.
8
See Jackson v. Johnson, 150 F.3d 520, 524
7
See Washington, 466 U.S. at 698; Childress (5th Cir. 1998) (citing United States v. Cronic,
v. Johnson, 103 F.3d 1221, 1224 (5th Cir. 1997); 466 U.S. 648 (1984)), cert. denied, 526 U.S. 1041
Motley, 18 F.3d at 1226. (1999).

7
counsel’s trial presentation was “somewhat The court’s conclusions that Painter “whol-
casual,” where counsel failed to pursue a ly abdicated his role in the adversarial process”
challenge based on racial bias in jury selection, and that “Painter’s performance was not mere-
to object to a variation between the indictment ly incompetent, it was inert,” Gochicoa III, 53
and the jury charge, or to raise a meritorious F. Supp. 2d at 954, 955, are unsupported and
issue on appeal. See Jackson, 150 F.3d at erroneous. “When the defendant receives at
525. Thus, prejudice is presumed, and least some meaningful assistance, he must
Washington’s second prong inapplicable, only prove prejudice in order to obtain relief for
“when the defendant demonstrates that ineffective assistance of counsel.” Goodwin v.
counsel was not merely incompetent but inert, Johnson, 132 F.3d 162, 176 n.10 (5th Cir.
distinguishing shoddy representation from no 1997).
representation at all.” Id. (internal quotation
marks omitted). “When the defendant Painter testified that he failed to object to
complains of errors, omissions, or strategic the hearsay beyond his one successful
blunders, prejudice is not presumed; bad objection because he believed that a less
lawyering, regardless of how bad, does not argumentative approach was more effective,
support the per se presumption of prejudice.” because he believed the hearsay to be
Id. (internal quotation marks omitted). The immaterial, and because he planned to
critical question “is whether the [petitioner] concentrate his defense on witness Michael
asserts that he received incompetent counsel, Carrasco. In particular, he thought “the thrust
or none at all.” Childress, 103 F.3d at 1230. of the defense in this case was on a possession
issue and the credibility of Mr. Carrasco and
According to Gochicoa, Painter met with his location and how far away from the scene
him twice, once in the county jail after his ar- he was.” Painter further believed that he did
rest and once just before trial began. Painter request the identity of the confidential
testified that he is unsure how many times he informant through his general motion for
met with Gochicoa, but that he reviewed the discovery, requesting information about “[t]he
district attorney’s file on the case, filed a gen- persons whom the state does not intend to call
eral motion for discovery and inspection of ev- to testify in this case but who the state knows
idence, visited the crime scene and took possesses [sic] relevant information concerning
pictures, questioned the police officers, re- the offense.”
searched the confidential informant issue, and
questioned the witnesses, including Michael Irrespective of whether these allegedly stra-
Carrasco. Painter did not file a specific motion tegic decisions were erroneous, Painter
to disclose the confidential informant’s presented some meaningful assistance to
identity, nor did he file any motions in limine Gochicoa. The court therefore erred by
to exclude information of, or evidence from, applying the Cronic constructive-denial test
the confidential informant. Nevertheless, he rather than the Washington ineffective-
cross-examined the state’s witnesses, made assistance test.
two successful objections (one based on hear-
say), called Prieto as an adverse witness, and III.
called two witnesses during the punishment Having determined that the court erred by
phase. granting habeas relief based on constructive

8
denial of counsel, we must consider Gochi- and that, accordingly, counsel’s failure to ob-
coa’s cross-appeal based on Washington. ject to that instruction could not constitute in-
Gochicoa bears the burden of proving both effective assistance. Likewise, in White, 153
Washington prongs, and if one of the elements F.3d at 208, we stated: “[O]ur conclusion that
is det erminative, we need not consider the the purported . . . error was harmless
other. See Washington, 466 U.S. at 697; forecloses any argument that deficiency in the
United States v. Kimler, 167 F.3d 889, 893 performance of [petitioner’s] trial counsel pre-
(5th Cir. 1999). cipitated by the . . . error was prejudicial.”.10

The court found that Painter lacked Given our earlier determination that the
credibility as a witness and that his failure to “crucial” and “devastating” prong of the Dut-
object arose out of ignorance of the law, not ton Confrontation Clause test is equivalent to
out of an informed trial strategy. See Go- harmless error,11 our previous holding that the
chicoa III, 53 F. Supp. 2d at 953-55. The
court likewise rejected Painter’s explanation
for his failure to file a motion to disclose the 10
See also Mayabb, 168 F.3d at 869 (noting
informant’s identity.9 See id. at 955-56. that harmless error in a jury charge cannot be the
These findings would certainly satisfy the first basis for Washington prejudice).
prong of Washington, deficient performance.
11
The court held, however, that it was precluded The prior panel’s conflation of the harmless
from finding Washington prejudice based on error standard with the “crucial” and “devastating”
our prior opinion. See id. at 950. prong of Dutton, and its decision that the error was
harmless, bind us as the law of this circuit. Of
course, one panel’s dictum cannot bind future
In Harris, 152 F.3d at 440, we held that an panels. See, e.g., Uniroyal Chem. Co. v. Deltech
erroneous jury instruction was harmless error Corp., 160 F.3d 238, 252 (5th Cir. 1998). A
faithful reading of Gochicoa II, however, does not
allow the conclusion that the statements at issue
9
The court was especially diligent in reviewing were mere dictum. A statement should be con-
Painter’s alleged strategy, because Painter had sidered dictum when it “could have been deleted
been subject to bar discipline and had abused without seriously impairing the analytical
alcohol. See Gochicoa III, 53 F. Supp. 2d at 950- foundations of the holding—[and], being
51. Painter was appointed to represent Gochicoa peripheral, may not have received the full and
in January 1992, at which point he had been li- careful consideration of the court that uttered it.”
censed for approximately three years following a In re Cajun Elec. Power Coop, Inc., 109 F.3d 248,
six-year suspension. When he was appointed to 256 (5th Cir. 1997) (citing Sarnoff v. Am. Home
represent Gochicoa, Painter had neglected a legal Prods. Corp., 798 F.2d 1075, 1084 (7th
matter and failed to keep a client apprised of her Cir.1986)) (modification in original, quotation
case, which failings would ultimately lead to his marks omitted).
being disbarred in 1994. In the disbarment
proceeding, Painter stated that “[d]uring the years When confronting decisions of prior panels,
1990, 1991, and 1992, my addiction to alcohol however, we are bound by “not only the result but
greatly affected my professional and personal life.” also those portions of the opinion necessary to that
There is no evidence, however, that Painter’s judg- result . . . .” Seminole Tribe v. Florida, 517 U.S.
ment was affected by alcohol abuse during Gochi- 44, 67 (1996). Moreover, “[a]s a general rule, the
coa’s trial. (continued...)

9
inadmissible hearsay did not satisfy this Dutton of habeas relief, AFFIRM the refusal to
prong precluded the district court from finding consider Washington prejudice, and RENDER
the hearsay prejudicial under Washington. See judgment in favor of the state.
Gochicoa II, 118 F.3d at 447. Because the
hearsay is not sufficiently damaging to warrant
reversal as a Confrontation Clause violation
(meaning any error was harmless), it is not
sufficiently damaging when re-framed as
ineffective assistance of counselSSit remains
harmless.12 We therefore REVERSE the grant

11
(...continued)
principle of stare decisis directs us to adhere not
only to the holdings of our prior cases, but also to
their explications of the governing rules of law.”
County of Allegheny v. Am. Civil Liberties Union,
492 U.S. 573, 668 (1989) (Kennedy, J. concurring
and dissenting), quoted in Seminole Tribe, 517
U.S. at 67.

In Gochicoa II, we plainly relied on the concept
of harmless error when analyzing the hearsay
testimony under Dutton: First, we explained that
Dutton’s “crucial” and “devastating” prong “rec-
ognizes that the erroneous admission of unreliable
12
hearsay may nonetheless be harmless in light of (...continued)
other evidence at trial . . . .” Gochicoa II, 118 whether the error was indeed harmless under
F.3d at 447. We then proceeded to equate that Washington. Gochicoa contends that, because his
prong with harmless error analysis, see id. at 447 Washington challenge involves his “right, under
n.6, before finally concluding that the admitted Texas law, to have [hearsay testimony] excluded,”
testimony was neither crucial nor devastating “in our earlier analysis of the testimony under Dutton
the context of the trial as a whole.” Id. at 447. allowed testimony that Texas law might have
Thus, our finding of harmless error in Gochicoa II excluded.
is entitled to respect not only as necessary to the
result, but also as an “explication of the governing Nonetheless, the prior panel concluded that the
rules of law” in this case. See County of disputed testimony “was neither crucial to the pro-
Allegheny, 492 U.S. at 668. secution nor devastating to the defense in the
context of the trial as a whole.” Id. In light of our
12
Gochicoa urges us to reverse the district equation of Dutton’s crucial and devastating prong
court’s conclusion that our earlier holding—that with the harmless error standard, see id. at 447 n.6,
the hearsay testimony was not “crucial” or and irrespective of whether the testimony might
“devastating” for purposes of a Dutton challenge have been excluded under Texas law, its inclusion
under the Confrontation Clause, see Gochicoa II, is harmless as a matter of law, and the district
118 F.3d at 447—precludes it from inquiring into court correctly concluded that it could not revisit
(continued...) the issue.

10
DENNIS, Circuit Judge, harmless error test at all.

concurring in part and Instead, it applied an inverted

dissenting in part: sufficiency of evidence test:

If the erroneously admitted

I concur in part II of the hearsay evidence “standing

majority opinion insofar as it alone” was not a sufficient

holds that the district court basis for a conviction, it

erred in finding a constructive therefore is not “crucial and

denial of counsel. I disagree, devastating” and hence could

however, with part III, which not be grounds for reversal as

rejects Gochicoa’s cross-appeal a Confrontation Clause

based on Strickland. violation.

Therefore, I respectfully (a) The Erroneous Dictum

dissent. of Gochicoa II

I. The Supreme Court and this

Gochicoa II’s suggestion that court have in the past taken

the “crucial” and “devastating” great pains to point out that

factor of the Dutton hearsay errors and

Confrontation Clause test is Confrontation Clause violations

equivalent to the harmless are not fungible. On the

error test for erroneously contrary, they have held that

admitted hearsay was an the overlap between an

erroneous dictum; actually, admission of hearsay and a

Gochicoa II did not apply a Confrontation Clause violation

is not complete; either may

11
occur without the other. This apparent that the Sixth

court, in Favre v. Henderson, Amendment’s Confrontation

464 F.2d 359, 362 (5th Cir. Clause and the evidentiary

1972) (quoting Green v. hearsay rule stem from the same

California, 399 U.S. 149, 155- roots. But this court has never

156 (1970)), stated: equated the two, and we decline

While it may readily be to do so now.”); United States
conceded that hearsay rules
and the Confrontation v. Sarmiento-Perez, 633 F.2d
Clause are generally
designed to protect similar 1092, 1099 (5th Cir. 1981)
values, it is quite a
different thing to suggest (“Conceptually, at least,
that the overlap is
complete and that the evidence sufficiently reliable
Confrontation Clause is
nothing more or less than a to qualify for admission under
codification of the rules
of hearsay and their a recognized exception to the
exceptions as they existed
historically at common law. hearsay rule might yet offend
Our decisions have never
established such a confrontation values; and,
congruence; indeed, we have
more than once found a conversely, the admission of
violation of confrontation
values even though the incriminating hearsay evidence
statements in issue were
admitted under an arguably might well avoid impinging
recognized hearsay
exception. * * * The confrontation rights.”) (citing
converse is equally true:
merely because evidence is WEINSTEIN’S EVIDENCE ¶ 800[04];
admitted in violation of a
long-established hearsay MCCORMICK ON EVIDENCE, § 252);
rule does not lead to the
automatic conclusion that Cupit v. Whitley, 28 F.3d 532,
confrontation rights have
been denied. 536 (5th Cir. 1994) (“Although

See also Dutton v. Evans, 400 the confrontation clause and

U.S. 74, 86 (1970) (“It seems the hearsay rule are related,

12
the Sixth Amendment right to into consideration in

confrontation does not perforce determining whether a

preclude the admission of any Confrontation Clause violation

hearsay testimony.”); Johnson has occurred. The Supreme

v. Blackburn, 778 F.2d 1044, Court has never said that only

1051 (5th Cir. 1985) (same); the first and fifth factors

Spears v. Circuit Court, Ninth need be considered or that any

Judicial District, 517 F.2d 360 factor can be totally

(5th Cir. 1975) (same) (citing, disregarded. Indeed, this

inter alia, Hoover v. Beto, 467 court has repeatedly

F.2d 516 (5th Cir. 1972); Park demonstrated the importance of

v. Huff, 506 F.2d 849 (5th Cir. considering all the Dutton

1975)). factors. See, e.g., Cupit, 28

In my opinion, the panel in F.3d at 537 (analyzing the five

Gochicoa II misinterpreted and Dutton factors separately and

misapplied the controlling stating that courts must assess

precedents of the Supreme Court “a host of considerations” in

and this Circuit in concluding deciding whether or not

that there had been no wrongfully admitted hearsay

violation of Gochicoa’s evidence violates the

Confrontation Clause right. Confrontation Clause); Johnson

Contrary to those decisions, v. Blackburn, 778 F.2d 1044,

Gochicoa II seeks to truncate 1051 (5th Cir. 1985) (placing

and prioritize the factors of emphasis on the first and

Dutton and progeny to be taken fourth factors of the Dutton

13
test only because factors two prior cases in which much more

and three were not applicable); damaging confrontation errors

Spears, 517 F.2d at 365-66 had occurred. Gochicoa II

(examining the five Dutton badly misread the meaning of

factors); Favre, 464 F.2d at this Circuit’s discussion of

363-64 (conducting an Dutton’s phraseology in

individual examination of nine Sarmiento-Perez, 633 F.2d at

factors described in Dutton). 1103 n.6. Before penning

To focus exclusively on the footnote 6 of Sarmiento-Perez,

first and fifth factors ignores Judge Tate surveyed Supreme

not only precedent in this Court precedent. He noted

Circuit but also important that,

constitutional considerations.

Nor has the Supreme Court or

this court ever said that the

Dutton “crucial” and

“devastating” prong is really a

substitute for a harmless error

test rather than one of the

factors to be weighed in

determining whether a

Confrontation Clause violation

has occurred. In fact, Dutton

used those words to distinguish

14
 In Dutton v. Evans, 400
U.S. 74, 91 S.Ct. 210, 27
L.Ed.2d 213 (1970), the
Supreme Court held that
the right of
confrontation was not
violated by the admission
of a coconspirator's
inculpatory out-of-court
declaration that was
admissible under the
state's liberal hearsay
exception, but
inadmissible under the
narrower federal hearsay
exception. The Dutton
court focused upon the
now- familiar "indicia of
reliability" standard as
the threshold of
admissibility under the
confrontation clause. . .

Sarmiento-Perez, 633 F.2d at

1103. In so holding, the

Dutton court distinguished

earlier Supreme Court precedent

by stating:

This case does not as did Douglas.... It
involve evidence in any does not involve any
sense "crucial" or s u g g e s t i o n o f
"devastating," as did all prosecutorial misconduct
the cases just discussed. or even negligence, as
It does not involve the did ... Douglas....
use, or misuse, of a
confession made in the
coercive atmosphere of an
official interrogation,

15
Id. (quoting Dutton v. Evans,

40 U.S. at 86-87).

At the bottom of the above

paragraph, Judge Tate attached

footnote 6. Judge Tate did not

say that the “crucial” and

“devastating” language in

Dutton and Douglas “simply

restates harmless error rule.”

Gochicoa II, 118 F.3d at 447

n.5. In footnote 6 of

Sarmiento-Perez Judge Tate

actually said:

Much has been made of the lapse. The alleged
" c r u c i a l " a n d statements clearly bore
"devastating" language in on a fundamental part of
Dutton and Douglas. The the State's case against
thrust of the language in the petitioner. The
these decisions may be circumstances are
read as intending nothing therefore such that
more than the observation "inferences from a
that the evidence at witness's refusal to
issue was or was not answer added critical
sufficiently damaging to weight to the
the defense to be prosecution's case in a
considered grounds for form not subject to
reversal: cross-examination, and
thus unfairly prejudiced
This case cannot be the defendant."
characterized as one
where the prejudice in
the denial of the right
of cross-examination
constituted a mere minor

16
Sarmiento-Perez, 633 F.2d at public alleyway; only

1103 n.6 (quoting Douglas v. Carrasco’s testimony

Alabama, 380 U.S. 415, 420 established an immediate,

(1965) (citations omitted)). albeit circumstantial, link

between Gochicoa and the

Going from bad to worse, the drugs.” Gochicoa II, 118 F.3d

court in Gochicoa II, after at 447 (emphasis added).

mistakenly equating “crucial “Although the informant’s tip

and devastating” with “harmless certainly bolstered the state’s

error,” proceeded to ignore the case,” the Gochicoa II court

hearsay “harmless error” test concluded that “the hearsay

and to convert the “crucial and evidence was neither crucial

devastating” factor into an nor devastating in the context

inverted pro-prosecution of the trial as a whole.”13 Id. In
sufficiency of evidence test.
13
In contrast to the court’s
Almost immediately after its approach in Gochicoa II, other
courts have applied the “crucial
misinterpretation of Sarmiento- and devastating” prong of Dutton
in an even-handed way more in
Perez, the court proceeded to keeping with Dutton’s holding
that it be considered as merely
reject the district court’s one of many factors or
considerations. For example, in
finding that the hearsay was Cupit, the court “[v]iew[ed] the
evidence about which Cupit
“crucial and devastating” complained through the . . .
prism of considerations” of the
other four factors. Cupit, 28
because “the tip from the F.3d at 537. See also Favre, 464
F.2d at 364-67 (evaluating the
informant standing alone did evidence without explicitly
applying a formalistic test);
not connect Gochicoa to the Spears, 517 F.2d at 367
(employing a looser
balloon of heroin found in the (continued...)

17
other words, Gochicoa II reasoned the Dutton factors, also determine the nature

incoherently that if erroneously admitted of any error committed before deciding

hearsay evidence was by itself insufficient to whether it justifies reversal. See Cupit, 28

support the defendant’s conviction, it could F.3d at 537. See also Spears, 517 F.2d at 367

not have been “crucial and devastating;” (applying a harmless error test after examining

therefore, it must have been harmless and not the factors in Dutton); Favre, 464 F.2d at 366

reversible error. (same); Hoover v. Beto, 467 F.2d 516, 538

(b) The Proper Confrontation (5th Cir. 1972) (same). Because the errors of
Clause Violation And
Harmless Error Tests Gochicoa’s counsel were his repeated failures

In a proper Confrontation Clause analysis during trial to recognize and object to the

under Dutton, the court must, after analyzing introduction of the inculpatory hearsay of an

out-of-court accuser, they were trial errors.14
13
(...continued)
14
“significantly effect test” and In addition to trial error,
stating “[i]t is inconceivable there are two other types of
that the testimony of the error. The second type is
receptionist or nurse might structural error that vitiates
significantly affect the jury’s the proceedings. See Cupit, 28
basis for evaluating the validity F.3d at 537-38. A “[s]tructural
of the report and the opinions error is error ‘affecting the
based upon it”) (emphasis added); framework within which a trial
Gochicoa II, 118 F.3d at 449 n.8 proceeds.’” White v. Johnson, 153
(Jolly, J., dissenting) (“I can F.3d 127, 201-02 (5th Cir. 1998)
agree that the properly admitted (quoting Arizona v. Fulminante,
evidence in this case was 499 U.S. 279, 310 (1991)). This
sufficient to allow a rational type of error is so serious that
jury to convict Gochicoa, but it cannot be considered harmless
that is not a question before (e.g., a biased judge or the
this court today. A denial of counsel to the
Confrontation Clause violation defendant). See Cupit, 28 F.3d
may occur when inadmissible at 537-38. The third type of
evidence was devastating to the error recognized by the Court in
defense, even if the properly Brecht v. Abrahamson, 507 U.S.
admitted evidence, viewed in 619 (1993), is that of “an
isolation, is sufficient to unusual case” in which “a
sustain the verdict.”). (continued...)

18
Indeed, the court in Cupit explicitly stated that United States, 328 U.S. 750 (1946) (“whether

admission of hearsay testimony is classified as the . . . error ‘had substantial and injurious

a “classic trial error,” so actual prejudice must effect or influence in determining the jury’s

be shown and a harmless error test should be verdict”), instead of the “harmless beyond a

conducted. In Cupit, a federal habeas reasonable doubt” standard in Chapman v.

proceeding concerning Cupit’s second degree California used to determine the

murder conviction in state court, this Circuit effect of constitutional errors

held that the testimony of investigating officers on direct review. See Cupit,

28 F.3d at 537-39; see also
and witnesses about hearsay statements of an
United States v. Chapman, 193
alleged murder victim prior to his death did
F.3d 375, 379 (5th Cir. 2000).
not violate the accused’s Confrontation Clause
Under this habeas “harmless
rights. Cupit, 28 F.3d at 536-37. But
error” test, the conviction
assuming that they did, the court found that
cannot stand if the error had
their admission was harmless error under “substantial influence” or “if

Brecht, explaining that Brecht required the one is left in grave doubt.”

application of the standard in Kotteakos v. Cupit, 28 F.3d at 538 (citing

Kotteakos, 328 U.S. at 765;
14
(...continued)
deliberate and especially Brecht, 113 S.Ct. at 1724
egregious error of the trial
type, or one that is combined (Stevens, J. concurring)).
with a pattern of prosecutorial
misconduct, might so infect the “Our task . . . is to determine
integrity of the proceeding as to
warrant the grant of habeas . . . whether the petitioner
relief, even if it did not
substantially influence the has successfully established in
jury’s verdict.” Id. at 638 n.9.
our minds grave doubt as to the

19
question of whether the assumed himself in virtual equipoise as

wrongfully admitted hearsay to the harmlessness of the

influenced the conviction.” Id. error.” O’Neal, 513 U.S. at

at 538-39 (citing Lowery v. 435. Thus, the ultimate

Collins, 996 F.2d 770, 773 (5th question becomes “whether the

Cir. 1993)). Thus, in this petitioner has successfully

last respect, the Cupit court established in our minds grave

anticipated the Supreme Court’s doubt as to the question of

holding in O’Neal v. McAninch, whether the assumed wrongfully

513 U.S. 432, 436 (1995) admitted hearsay influenced the

(“When a federal judge in a conviction.” Cupit, 28 F.3d at

habeas proceeding is in grave 538-39. In evaluating the

doubt about whether a trial trial error, the “strength of

error of federal law had the prosecution’s case is

‘substantial and injurious probably the single most

effect or influence in important factor in determining

determining jury’s verdict,’ whether the error was

that error is not harmless. harmless.” Id. at 539.

And, petitioner must win.”); While the court in Gochicoa

see also California v. Roy, 519 II purported to rely on a

U.S. 2 (1996). By “grave harmless error test, it is

doubt,” the Supreme Court clear that the majority did not

explained, “we mean that in the undertake the above Brecht-

judge’s mind, the matter is so O’Neal-Roy analysis. The text

evenly balanced that he feels of the opinion evidences use of

20
a different standard. Because ineffective assistance of

the “crucial and devastating” counsel claim. T o

Dutton factor is not the same determine the binding effect of

as the Brecht “harmless error” Gochicoa II on this panel, the

test, and is certainly law of the case doctrine must

different from Gochicoa II’s be applied. First, the

eccentric “inverted sufficiency doctrine of the law of the case

test,” the Gochicoa II majority “‘posits that when a court

fell into compounded legal decides upon a rule of law,

errors and failed to apply the that decision should continue

correct Confrontation Clause or to govern the same issues in

harmless error analysis. subsequent states of the same

case.’” Christianson v. Colt

II. Indus. Operating Corp., 486

Because Gochicoa II’s errors U.S. 800, 816 (1988) (quoting

were either dictum or the Arizona v. California, 460 U.S.

clearly erroneous application 605, 618 (1983)). This rule

of an incorrect legal principle serves to promote policies of

that would work a manifest both finality and judicial

injustice, we are not bound by efficiency. See id. With

those mistakes as the law of respect to rules of law, the

this case; in Gochicoa II we law of the case doctrine

must apply correct legal applies even on interlocutory

principles in deciding the appeals. See Royal Ins. Co. v.

Quinn-L Capital Corp., 3 F.3d

21
877, 881 (5th Cir. 1993). With decision unless ‘(i) the

regard to factual matters, this evidence on a subsequent trial

doctrine applies only to issues was substantially different,

actually decided and does not (ii) controlling authority has

apply to obiter dicta. See 18 since made a contrary decision

JAMES WM. MOORE ET. AL., MOORE’S of the law applicable to such

FEDERAL PRACTICE § 134.20[3], at issues, or (iii) the decision

134-45 (3d ed. 1999) (“The was clearly erroneous and would

doctrine does not apply to work a manifest injustice.’”

statements made by the court in Free v. Abbott Labs., 164 F.3d

passing, or stated as possible 270, 272-73 (5th Cir. 1999)

alternatives.”) If the issue (quoting North Miss. Comms.,

has been decided either Inc. v. Jones, 951 F.2d 652,

explicitly or by implication, 656 (5th Cir. 1992)).

however, the law of the case In the present case, we are

doctrine governs. See Royal not bound by the dictum or the

Ins., 3 F.3d at 881. rule of decision adopted by

As applied in this Circuit, Gochicoa II for several

the law of the case doctrine is reasons. First, Gochicoa II is

not absolute, and, in fact, not law of the case with regard

application of this doctrine is to ineffective assistance of

discretionary. Courts, counsel because Gochicoa II did

however, “will generally refuse not address whether the

to revisit a prior panel’s admission of the hearsay

evidence was harmless error

22
under the Brecht-Cupit Furthermore, a finding by the court in
analysis. Instead, the court Gochicoa II that the error was not “crucial and
in Gochicoa II, while
devastating” does not bar this court from
purporting to examine harmless
considering Gochicoa’s ineffective assistance
error by its misguided
of counsel claim. This Circuit has recognized
application of the “crucial and
that an error does not have to be “crucial and
devastating” factor and an
devastating” to be harmful under Brecht.
inverted sufficiency of

evidence test, not only failed “[H]earsay testimony that is neither ‘crucial’

to correctly apply the Dutton nor ‘devastating’ under Dutton may

Confrontation Clause factors nevertheless amount to reversible error under
but also failed to conduct the Kotteakos.” United States v. Arias-Diaz, 497
Brecht harmless error test.15
F.2d 165, 172 (5th Cir. 1974). Consequently,

even a proper finding that an error was not
15
Although the State of Texas
contends that White v. Johnson, “crucial and devastating” does not bar a
153 F.3d 197 (5th Cir. 1998), and
Harris v. Warden, 152 F.3d 430, subsequent finding of a “substantial and
440 (5th Cir. 1998), bar
consideration of the ineffective injurious” error. Thus, this court should
assistance of counsel claim
(because an earlier finding of
harmless error prevents address Gochicoa’s Sixth Amendment claim
examination of the ineffective
assistance of counsel claim), on a clear slate, free of the clearly erroneous
these cases prove wholly
inapplicable given the finding
that the court in Gochicoa II did and manifestly unjust rules of law applied by
not apply the harmless error test
at all. Moreover, because Mayabb Gochicoa II.
v. Johnson, 168 F.3d 863 (5th Cir.
1999), was not a habeas case and, Assuming, arguendo, that the “crucial and
therefore, may have employed a
different harmless error
standard, that case is doubly devastating” finding were broad enough to
inapplicable.

23
subsume the Brecht harmless error test, this counsel. To determine whether the plaintiff

court would not be bound by Gochicoa II was denied effective assistance of counsel,

because a “decision that was clearly erroneous courts must apply the two-pronged test of

and would work a manifest injustice” is an Strickland, 466 U.S. 668, 692-93 (1984). To

exception to the law of the case doctrine. prevail on a claim of ineffective assistance of

Free, 164 F.3d at 272-73. In the pithy words counsel, a petitioner must first show that

of the Seventh Circuit, Gochicoa sets off the counsel’s performance was deficient. That is,

clearly erroneous standard because the topsy- he must show that ”counsel’s representation

turviness of its rule application “strike[s] us as fell below an objective standard of

wrong with the force of a five-week-old, reasonableness.” Id. This showing is often

unrefrigerated dead fish.” Id. (quoting Parts & difficult, as the Supreme Court employs a

Elec. Motors, Inc. v. Sterling Elec. Inc., 866 “highly deferential” approach that accords a

F.2d 228, 233 (7th Cir. 1988)). As the district “strong presumption that counsel’s conduct

court stated, “Gochicoa was represented by falls within the wide range of reasonable

counsel whose inaction and lack of basic professional assistance.” Id. at 689. The

knowledge resulted in a guilty verdict followed second prong of the test requires that the

by a sentence of sixty (60) years in Texas petitioner show prejudice due to counsel’s

prison.” performance. See id. In defining prejudice,

III. this Circuit has held that

Finally, application of Strickland to the

present case requires the conclusion that

Gochicoa was denied effective assistance of

24
 the defendant must show that there is
a reasonable probability that, but for
counsel’s professional errors, the result
of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine
confidence in the outcome. The
defendant need not show “that
counsel’s deficient conduct more likely
than not altered the outcome in the
case.” But it is not enough, under
Strickland, “that errors had some
conceivable effect on the outcome of
the proceeding.”

Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir. the day of the trial understood that the

1994) (quoting Strickland, 466 U.S. at 693- statements of the informant were hearsay....”

94)) (internal citations omitted). Order Granting Habeas Writ at 17.

Concerning the first prong of Strickland, With respect to the prejudice prong,

there appears to be little doubt that counsel’s petitioner can clearly demonstrate a reasonable

inept performance was deficient. As the probability that, but for counsel’s deficient

district court observed, knowledge of the very performance, “the result of the proceeding

basic rules of evidence is essential to any would have been different.” The hearsay

competent representation in a criminal trial. testimony established a substantial and direct

By failing to object to “obviously inadmissible link between Gochicoa and the heroin dealer

hearsay,” Gochicoa’s counsel demonstrated hi s who lived in the very street and block where

ignorance of these basic rules. The district Gochicoa was seen walking and the illegal

court unequivocally stated, “Except for drugs were later found. Without the tipster’s

defense counsel, everyone in the courtroom on out-of-court statement that Gochicoa was

25
buying from that dealer at that location at that counsel’s deficient performance in allowing the

time, the state’s case, as likely as not, would admission of the hearsay, a reasonable

have foundered because it would have rested probability exists that the result of the

only upon the tenuous basis of Gochicoa’s proceeding would have been different.

nervousness and Carrasco’s testimony that at We should not assume that we are bound

dusk, he saw Gochicoa from 150 feet make a by Gochicoa II’s distorted application of the

throwing motion but did not see what object, “crucial and devastating” factor as an inverted

if any, he threw. See Gochicoa II, 118 F.3d at sufficiency of evidence test. Thus, an

442, 447. As Judge Jolly noted in his dissent, independent evaluation should be undertaken

“[T]he evidence that Gochicoa was in the area with respect to Gochicoa’s ineffective

to buy heroin [from an identified dealer who assistance of counsel claim applying the

lived there] provides a crucial link between the Strickland analysis. Accordingly, I would

defendant and the drugs.” Id. at 449 (Jolly, J., AFFIRM the grant of habeas, REVERSE the

dissenting). Moreover, the prosecution’s district court’s refusal to consider Strickland

repeated reliance on the hearsay evidence prejudice, and RENDER judgment on the

underscores its importance. See id. (Jolly, J., ineffective assistance of counsel claim in favor

dissenting). Even the majority in Gochicoa II of Gochicoa.

admits that the remaining evidence was solely

“circumstantial” and that the hearsay testimony

“certainly bolstered the state’s case. . . .” Id.

at 447. Thus, any confidence in Gochicoa’s

conviction is undermined because, but for

26