UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-40296
_____________________
DONALD ALLEN WILDER,
Petitioner-Appellee,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
November 26, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The district court having granted conditional habeas relief to
Donald Wilder, at issue is whether his several evidentiary and
ineffective assistance of counsel claims, made in varying forms
during direct appeal and state habeas proceedings, can, for
purposes of 28 U.S.C. § 2254(b)(1), exhaust a federal due process
claim based on Chambers v. Mississippi, 410 U.S. 284 (1973)
(holding due process precludes mechanistic application of hearsay
rule to prevent criminal defendant’s introduction of exculpatory
third-party confessions when surrounding circumstances provide
“considerable assurance of their reliability”). The State
maintains: Wilder failed to exhaust his Chambers claim in Texas
state court; and, in the alternative, the district court, in ruling
on the Chambers claim, failed to accord the state court’s
evidentiary ruling the deference required by federal habeas law, 28
U.S.C. § 2254(d)(1). VACATED and REMANDED with INSTRUCTIONS.
I.
Wilder was convicted of theft and murder in Texas state court.
The events giving rise to the convictions began when Wilder, along
with brothers Jerry and Jeffrey Furr, arrived in a pickup truck at
the McEvers’ property. The men hooked the McEvers’ flatbed trailer
to the pickup truck, and one of them drove the McEvers’ tractor
onto the trailer. Additionally, one of the men loaded a kerosene
heater and door on the trailer.
Kay McEvers, along with her daughters and a family friend,
witnessed part of the theft. As the men departed in the pickup
truck, trailer in tote, the daughters and friend pursued in an
automobile along County Road 2205. They could not keep pace with
the pickup truck.
Further down Road 2205, the truck ran a stop sign and careened
into an intersection, broadsiding another vehicle entering the
intersection. The driver of the second vehicle suffered massive
injuries that caused her death.
The three men fled on foot from the scene of the accident but
were soon apprehended. Jerry Furr (Furr) was brought to Deputy
Sheriff Johnson’s vehicle, where he told the Deputy that his
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brother, Jeffrey Furr, and Wilder did not know the trailer and
tractor were being stolen.
At Wilder’s trial in March 1995, defense counsel began
questioning the Deputy about Furr’s statement. The State objected
on hearsay grounds. At a hearing, held outside the presence of the
jury, on the admissibility of Furr’s statement, Deputy Johnson
testified:
[Jerry] Furr said that he was the driver of
the vehicle. He also stated that Donny Wilder
and his brother [, Jeffrey Furr,] didn’t know
— didn’t have anything to do with the theft of
the tractor or the trailer; that they thought
they were going to haul hay. They were just
stopping to pick up the trailer and the
tractor.
Defense counsel claimed the statement was excepted from the
hearsay rule under TEX. R. CRIM. EVID. 803(1) (present sense
impression) and 803(24) (statement against interest). In detailed
findings of fact and conclusions of law, the trial court ruled
instead that the statement: was not made while Furr was perceiving
the event described or immediately thereafter, as required by Rule
803(1) for present sense impression; and was not clearly
trustworthy, as required by Rule 803(24) in criminal cases for a
statement against penal interest. Consequently, the State’s
objection was sustained.
Accordingly, Wilder’s attorney attempted later to call Furr as
a witness; Furr was in county jail awaiting trial. Outside the
presence of the jury, counsel for Wilder admitted: he had spoken
3
to Furr’s attorney — who was then out of state — about the
possibility of Furr’s testifying; and Furr’s attorney had replied,
“Not on your life; not without some immunity”. It appeared certain
that, if called as a witness, Furr would claim his Fifth Amendment
right against self-incrimination. In the light of the absence of
Furr’s counsel, the court denied the request to call Furr. The
trial proceeded, and the jury found Wilder guilty of theft and
murder.
Wilder appealed his conviction to an intermediate court of
appeals. He contended the trial court erred in: not allowing him
to call Furr; denying a motion to grant Furr limited immunity to
testify; and not admitting Furr’s testimony as a statement against
penal interest, pursuant to TEX. R. CRIM. EVID. 803(24). The
intermediate appeals court affirmed in May 1997, ruling in part
that the trial court had not abused its discretion in finding the
statement not clearly trustworthy as required by Rule 803(24).
That October, the Texas Court of Criminal Appeals refused
discretionary review.
Wilder then filed a pro se application for state habeas
relief. Among other issues, he raised ineffective assistance of
counsel. The state habeas court (Wilder’s former trial court)
summarily recommended denial of the application. In February 1999,
the Court of Criminal Appeals, however, remanded the ineffective
assistance claim to the habeas court to take further evidence.
4
After the remand, but before the hearing, Wilder retained
counsel and filed an amended habeas application. The habeas court
conducted a hearing, made factual findings as to the ineffective
assistance claim, concluded the application was without factual
merit, and again recommended denial. That September, the Court of
Criminal Appeals denied the application without written opinion.
In so doing, the Court of Criminal Appeals did not mention the
additional claims raised in Wilder’s amended application.
The next month (October 1999), Wilder filed the present
federal habeas application, presenting many of the claims presented
in his amended state application. The matter was referred to a
magistrate judge, who recommended dismissing the entire application
without prejudice for failure to exhaust state remedies with
respect to the claims first presented in the amended state habeas
application.
The district court disagreed, ruling that Wilder had exhausted
state remedies because: exhaustion requires only that the
applicant pursue a claim for state habeas relief before seeking
federal habeas relief; and the Court of Criminal Appeals had
accepted Wilder’s amended application. Wilder v. Johnson, No.
6:99-CV-606 (E.D. Tex. 12 Mar. 2001) (citing Orman v. Cain, 228
F.3d 616, 620 (5th Cir. 2000)). The district court concluded
Wilder had “provide[d] the state courts with a fair opportunity to
apply controlling legal principles to the facts bearing upon his
5
constitutional claim”. Id. (quoting Anderson v. Harless, 459 U.S.
4, 6 (1982)) (internal quotations omitted; alteration in original).
Accordingly, the district court considered the merits of Wilder’s
habeas application.
Implicitly holding Wilder’s pursuit of the Rule 803(24)
evidentiary claim on direct appeal served to exhaust a federal due
process claim premised on the exclusion of Furr’s statement, the
court considered whether that exclusion violated Chambers v.
Mississippi, 410 U.S. 284 (1973). Chambers held that due process
precludes a mechanistic application of the hearsay rule to prevent
a criminal defendant from introducing into evidence exculpatory
third-party confessions when surrounding circumstances provide
“considerable assurance of their reliability”. Id. at 300-03. The
district court held: the circumstances surrounding Furr’s making
the statement and Wilder’s offering it at trial provided such
assurance; the statement should have been admitted; and its
exclusion prejudiced Wilder and had a substantial and injurious
effect on the verdict.
Accordingly, the district court granted conditional habeas
relief, ordering Wilder released unless the State retried him
within 120 days. In the light of its Chambers ruling, the district
court did not address Wilder’s remaining claims. In May 2001, on
motion of the State, the district court granted a stay pending
appeal.
6
II.
“We review a court’s findings of fact on requests for habeas
corpus relief for clear error and its rulings on issues of law de
novo.” Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999).
While it is at least arguable that Wilder did not present the
Chambers claim to the district court — that is, that the court
considered it sua sponte — we will assume the claim, as discussed
infra, was presented in his federal habeas application and limit
our review to whether it was exhausted in state court.
Exhaustion is required by 28 U.S.C. § 2254(b)(1), which
provides in pertinent part:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted unless it appears that–
(A) the applicant has exhausted the
remedies available in the courts of the
State....
Whether a federal habeas petitioner has exhausted state remedies is
a question of law. See Whiteley v. Meacham, 416 F.2d 36, 39 (10th
Cir. 1969), rev’d on other grounds sub nom. Whiteley v. Warden,
Wyoming State Penitentiary, 401 U.S. 560 (1971); Rose v. Dickson,
327 F.2d 27, 28 (9th Cir. 1964).
To exhaust, a petitioner “must have fairly presented the
substance of his claim to the state courts”. Nobles v. Johnson,
127 F.3d 409, 420 (5th Cir. 1997) (citing Picard v. Connor, 404
7
U.S. 270, 275-76 (1971)), cert. denied, 523 U.S. 1139 (1998). “It
is not enough that all the facts necessary to support the federal
claim were before the state courts or that a somewhat similar
state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6
(1982) (internal citation omitted). Indeed, “where petitioner
advances in federal court an argument based on a legal theory
distinct from that relied upon in the state court, he fails to
satisfy the exhaustion requirement”. Vela v. Estelle, 708 F.2d
954, 958 n.5 (5th Cir. 1983), cert. denied, McKaskle v. Vela, 464
U.S. 1053 (1984).
A.
Accordingly, did any of Wilder’s state-court claims “fairly
present[] the substance of” the Chambers issue in state court?
Wilder’s state-court claims concerning Furr’s hearsay statement may
be grouped in two categories: (1) that, under state law, the
statement was admissible as a hearsay exception; and (2) that,
under the Federal Constitution, he received ineffective assistance
of counsel.
1.
Wilder maintained both at trial and on direct appeal that
Furr’s statement qualified as a hearsay exception. Those arguments
were premised, however, exclusively on state-law grounds — Rules
803(1) and (24) at trial and Rule 803(24) on appeal. Indeed the
legal authority cited in his brief on direct appeal is limited
8
almost exclusively to the Texas Rules of Evidence and a single
Texas case: Flix v. State, 782 S.W.2d 1 (Tex. App.-Houston [14th
Dist.] 1989, pet. ref’d). But, as noted, for purposes of
exhaustion “[i]t is not enough ... that a somewhat similar
state-law claim was made”. Harless, 459 U.S. at 6.
Wilder did assert, in a blanket and conclusory statement at
the end of the evidentiary argument of his brief on direct appeal
to the intermediate appellate court: “The [trial] Court’s ruling
denied [Wilder] his right to a fair trial and due process of law as
guaranteed him under the Fifth and Fourteenth Amendments to the
U.S. Constitution and Art. I, sec 10 Texas Constitution”. This
passing reference to the Constitution, however, did not exhaust a
Chambers claim. The exhaustion requirement “reflects a policy of
federal-state comity ... designed to give the State an initial
opportunity to pass upon and correct alleged violations of its
prisoners’ federal rights”. Picard v. Connor, 404 U.S. 270, 275
(1971) (internal quotations and citations omitted; emphasis added).
A fleeting reference to the federal constitution, tacked onto
the end of a lengthy, purely state-law evidentiary argument, does
not sufficiently alert and afford a state court the opportunity to
address an alleged violation of federal rights. Moreover, to hold
that vague references to such expansive concepts as due process and
fair trial fairly present, and therefore exhaust, federal claims is
to eviscerate the exhaustion requirement.
9
Finally, even if, arguendo, the intermediate court of appeals
was sufficiently alerted as to Wilder’s alleged Chambers claim, the
Court of Criminal Appeals was not. In the section of his petition
for discretionary review concerning the alleged evidentiary error,
Wilder makes no mention of Chambers, any other federal case law, or
any constitutional protection. “The exhaustion requirement is
satisfied when the substance of the federal habeas claim has been
fairly presented to the highest state court.” Whitehead v.
Johnson, 157 F.3d 384, 387 (5th Cir. 1998) (emphasis added). Even
if the due process and fair trial language at the end of Wilder’s
appellate brief sufficiently alerted the intermediate appellate
court that Wilder was raising a Chambers claim, that language was
omitted entirely in his submission to the state’s highest criminal
court.
2.
In short, Wilder’s evidentiary contention on direct appeal
failed to exhaust a Chambers claim. Remaining for our review is
the exhaustive effect, if any, of his state-habeas ineffective
assistance of counsel claims.
Wilder first raised an ineffective assistance claim in his pro
se state habeas application, emphasizing his attorney’s failure to
interview or subpoena Furr. As noted, the trial court summarily
recommended denial of habeas relief; the Court of Criminal Appeals
remanded on the ineffective assistance claim; and before a hearing
10
was held, Wilder retained counsel and filed an amended application.
In it, he claimed ineffective assistance because of, inter alia,
his attorney’s: (1) failure to subpoena Furr; (2) failure to
request admission of Furr’s statements on proper grounds; and (3)
inability to call Furr as a witness. The first and second grounds
involve ineffective assistance claims of the Strickland v.
Washington stripe, 466 U.S. 668 (1984) (providing standard for
evaluating ineffective assistance claim based on specified errors
of counsel), while the third is of the United States v. Cronic
variety, 466 U.S. 648 (1984) (acknowledging assistance may be
rendered ineffective by surrounding circumstances, regardless of
defense counsel’s performance).
Wilder contends his Cronic claim, in conjunction with a single
citation to Chambers in his Strickland failure-to-request-admission
claim, served to fairly present a Chambers claim to the state
habeas courts. He maintains that, “between the direct cite to
Chambers, a description of the excluded information, and a
discussion of the impact of the oral statement’s exclusion, there
was enough information ... to alert the Court of Criminal Appeals”.
In previous cases involving the exhaustion of multiple,
distinct ineffective assistance claims, our court has treated each
claim separately. For example, in Jones v. Jones, 163 F.3d 285,
296-98 (5th Cir. 1998), cert. denied, 528 U.S. 895 (1999), we
performed an independent exhaustion analysis for each of five
11
distinct ineffective assistance claims. Moreover, where a habeas
petitioner presents two separate claims disjunctively in state
court, he cannot combine those claims in federal court to present
a new issue and then insist that new issue has been exhausted. See
Thomas v. Collins, 919 F.2d 333, 334-35 (5th Cir. 1990), cert.
denied, 501 U.S. 1235 (1991).
Obviously, an ineffective assistance of counsel claim is
distinct legally and logically from a Chambers claim. The former
is grounded in the Sixth Amendment’s guarantee of “the Assistance
of Counsel for [an accused’s] defence”, while the latter derives
from general due process considerations.1 See Cronic, 466 U.S. at
654-55; Chambers, 410 U.S. at 294-95. They differ on a mechanical
level as well. An ineffective assistance claim asserts that
defense counsel’s deficient performance — whether through his fault
or by uncontrollable circumstance — deprived the defendant of a
fair trial. See, e.g., Cronic, 466 U.S. at 666. A Chambers claim,
in contrast, asserts that the trial judge’s mechanical application
of evidentiary rules deprived the defendant of his ability to mount
a defense. Drawing these distinctions is not splitting hairs; far
from it. Exhaustion “require[s] a state prisoner to present the
1
Arguably Chambers derives also from, or at least reflects,
the Sixth Amendment’s Compulsory Process Clause. See Sharlow v.
Israel, 767 F.2d 373, 377 & n.10 (7th Cir. 1985) (applying Chambers
analysis to Sixth Amendment compulsory process claim), cert.
denied, Sharlow v. Young, 475 U.S. 1022 (1986).
12
state courts with the same claim he urges upon the federal courts”.
Picard, 404 U.S. at 276 (emphasis added).
While Wilder did cite Chambers in his Strickland failure-to-
request-admission claim, the purpose in so doing was to demonstrate
an additional basis on which his trial counsel could have requested
admission of Furr’s statements. His amended state habeas
application reads:
Mr. Wilder asserts that he was denied
effective assistance of counsel on the
following grounds:
...
3. Failure to Request Admission of Jerry
Furr’s Oral and Written Statements on Proper
Grounds. Jerry Furr made an oral statement to
the arresting officer that Donald Wilder was
not involved and had no knowledge of the
theft. Jerry also provided a written
confession which completely incriminated him,
and exonerated Mr. Wilder by failing to assign
any blame or actions to him. The trial lawyer
requested admission of these statements under
Rule of Evidence 801(1) and 803(24). (R. vol.
3 at 7.) These are proper requests, but did
not go far enough.
The statements were held admissible more
than thirty years ago by the Supreme Court in
Chambers v. Mississippi, 410 U.S. [2]84; 93 S.
Ct. 1038 (1968). This case held that when a
co-defendant makes incriminating statements
which by their nature exonerate the defendant,
and the co-defendant is otherwise unavailable,
then the hearsay statements are admissible.
The statements were also admissible
because the State knew, although no one else
did, that the State would seek to hold Mr.
Wilder liable under a conspiracy theory....
13
(Emphasis added.) Wilder’s supporting memorandum pertained only
“to the conspiracy aspects of the case”.
Needless to say, that Wilder’s counsel failed to raise all
possible bases for seeking admission of Furr’s statements is
logically distinct from the basis for a Chambers claim. Again, the
basis for the latter is that the trial court’s exclusion of hearsay
evidence independently deprived Wilder of the due process right to
present a defense.
B.
In sum, Wilder failed to exhaust a Chambers claim. Along this
line, the State asks us to find such a claim procedurally
defaulted. “If a petitioner fails to exhaust state remedies, but
the court to which he would be required to return to meet the
exhaustion requirement would now find the claim procedurally
barred, then there has been a procedural default for purposes of
federal habeas corpus relief.” Finley v. Johnson, 243 F.3d 215,
220 (5th Cir. 2001). Texas does significantly restrict successive
habeas petitions, see TEX. CODE CRIM. PROC. art. 11.07, § 4; but, it
permits consideration of a subsequent application in the following
circumstance:
Sec. 4. (a) [T]he application contains
sufficient specific facts establishing that:
...
(2) by a preponderance of the evidence,
but for a violation of the United States
Constitution no rational juror could have
14
found the applicant guilty beyond a reasonable
doubt.
Id.
Because we are not convinced that, given the admission of
Furr’s confession exculpating Wilder, a reasonable jury could have
found Wilder guilty beyond a reasonable doubt, the State should be
allowed to make the procedural bar, vel non, determination. That
is not to say that we believe Furr’s statement should have been
admitted; indeed, we make no ruling as to the merits of the
Chambers claim. Rather, because it is not entirely clear that
Texas’ subsequent-application bar would prohibit consideration of
the Chambers claim, Texas courts should make that determination.
Accordingly, because Wilder failed to exhaust the Chambers
claim, we vacate the conditional habeas relief and remand to the
district court with instructions to dismiss Wilder’s habeas
application without prejudice.2 Wilder may then, if he chooses,
pursue a Chambers claim, along with any other unexhausted claims,
in Texas state court. Should that court determine it can hear the
Chambers or any other unexhausted claim, and should it still deny
habeas relief, Wilder may then petition the district court to
2
Because at least one of his claims is unexhausted, Wilder’s
habeas application is mixed. Normally, such mixed petitions must
be dismissed. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Graham
v. Johnson, 168 F.3d 762, 777-78 (5th Cir. 1999), cert. denied, 529
U.S. 1097 (2000).
15
consider any properly exhausted claims. (As noted, the district
court ruled only on the Chambers claim.)
III.
For the foregoing reasons, the grant of conditional habeas
relief is vacated, and this case is remanded to the district court
for it to dismiss Wilder’s habeas application without prejudice.
VACATED AND REMANDED WITH INSTRUCTIONS
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