Wilder v. Cockrell

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.

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 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

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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....

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(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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