UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
___________
No. 99-41216
____________
ALBERTO VALDEZ,
Petitioner - Appellee,
versus
JANIE COCKRELL, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas, Corpus Christi
April 12, 2002
ON PETITION FOR REHEARING EN BANC
(Opinion 12/3/01, 5th Cir., 2001, 274 F.3d 941)
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The court having been polled at the request of one of the members of the court and a majority
of the judges who are in regular active service not having voted in favor (FED. R. APP. P. and 5TH
CIR. R. 35), the Petition for Rehearing En Banc is DENIED.
JAMES L. DENNIS, Circuit Judge, joined by JACQUES L. WIENER, JR., HAROLD R. DeMOSS,
JR., and ROBERT M. PARKER, Circuit Judges, dissenting from the denial of the Petition for
Rehearing En Banc:
Before the court is a panel opinion holding that a full and fair hearing in state court is not a
prerequisite to the application of 28 U.S.C. § 2254’s “deferential scheme.”1 Because this
interpretation of the AEDPA precludes meaningful review of state court decisions rendered in a
procedurally defective manner, this case merits the full attention of this court. Therefore, I
respectfully dissent from the denial of rehearing en banc.
The parties present a habeas court with opposing views or beliefs concerning the underlying
facts and procedural process that resulted in a criminal conviction. But the only way for the habeas
court to know what went on at trial is to read the transcript. Review of the record is particularly
important when the habeas judge did not preside over the criminal trial. The state habeas judge in
Alberto Valdez’s case was not the trial judge, and he admitted, in cavalier fashion, that he was not
familiar with the record: “I have never read the record of the trial and I don't intend to. I don't have
the time.”2 Nevertheless, the state habeas court issued findings of fact and conclusions of law denying
Valdez relief.
1
See Valdez v. Cockrell, 274 F.3d 941, 950–51 (5th Cir. 2001).
2
Valdez v. Johnson, 93 F. Supp. 2d 769, 776 (S.D. Tex.1999) (quoting State Hrg. on Prop.
Find. & Concl. Law, 144–45).
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Valdez later filed a federal habeas petition, and the district court granted relief on his
ineffective assistance of counsel claim. The district court was certainly aware of the AEDPA and the
respect that it bestows on a state habeas court’s adjudication on the merits. It also recognized,
however, that the state habeas judge’s failure to read the record denied Valdez a full and fair hearing
on a federal constitutional claim. The court therefore found that § 2254(e)(1)’s presumption of
correctness and § 2254(d)’s standards of review were largely inapplicable. In reaching this
conclusion, the court relied on the Supreme Court’s decision in Townsend v. Sain3 and the Tenth
Circuit’s opinion in Miller v. Champion.4 In Townsend, the Court held that a federal evidentiary
hearing is mandatory if the habeas applicant did not receive a full and fair hearing in state court.5 In
a mandatory federal evidentiary hearing, “it is the federal judge’s duty to disregard the state findings
. . . .”6 The Miller court observed, in a post-AEDPA case, that the denial of a full and fair hearing
in state court still renders inoperative the statutory presumption of correctness:
[Although] [f]ederal courts entertaining habeas petitions must give a presumption of
correctness to state courts' factual findings, ... [t]his presumption of correctness does
not apply ... if the habeas petitioner did not receive a full, fair, and adequate hearing
in the state court proceeding on the matter sought to be raised in the habeas petition.7
3
372 U.S. 293 (1963).
4
161 F.3d 1249 (10th Cir. 1998).
5
See Townsend, 372 U.S. at 312–13.
6
Id. at 316.
7
Miller, 161 F.3d at 1254 (internal quotation and citation omitted).
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Today, a majority of this court takes a different approach from our sister circuit and again
disregards the Supreme Court’s warnings against interpreting the AEDPA in a manner that produces
“far-reaching and seemingly perverse” implications for habeas practice.8 The panel opinion insulates
a state habeas court’s decision on a federal ineffective assistance of counsel claim, which is highly fact
specific, from meaningful review in a federal habeas court without regard to the quality of the state
court’s fact-finding pro cedure. But if a full and fair hearing is not a prerequisite to a state-court
adjudication on the merits that is entitled to deference in federal court under the AEDPA, then state
courts are free to (1) rubber-stamp the prosecuting body’s proposed findings of fact and conclusions
of law, (2) deny the petitioner relief without affording him a hearing, and (3) effectively prevent a
federal court from later granting the requested relief. I do not believe that the AEDPA left the Great
Writ so impotent.9 According to one leading scholar:
A change of that kind would be dramatic and not something that anyone
would lightly read into the [AEDPA] . . . . One can imagine that, in some
circumstances at least, serious constitutional questions would be raised by a rule that
requires a federal court to accept a factual finding made in state court, with no written
statement of the finding on which to focus and with no ability to assess the process
8
Stewart v. Martinez-Villareal, 523 U.S. 637, 644 (1998). The Supreme Court recently
rejected a Fifth Circuit interpretation of the AEDPA in favor of a more stringent habeas review of
state court decisions. See Williams v. Taylor, 529 U.S. 362 (2000) (rejecting the “reasonable jurists”
standard adopted by this court in Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), in favor of
an “objectively unreasonable” standard). See also Max-George v. Reno, 205 F.3d 194 (5th Cir.
2000), overruled by INS v. St. Cyr, 533 U.S. 289 (2001).
9
See Miller, 161 F.3d at 1254 (“[B]ecause the state court did not hold any evidentiary hearing,
we are in the same position to evaluate the factual record as it was. Accordingly, to the extent the
state court’s dismissal of Mr. Miller’s petition was based on its own factual findings, we need not
afford those findings any deference.”).
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out of which that finding emerged and the evidence on which it was based.
....
I read § 2254(e)(1) to drop the specific procedural and substantive standards
contained in the former § 2254(d). But I do not read it to dispense with a federal
court's rudimentary responsibility to ensure that it is deciding a constitutional claim
based on factual findings that were forged in a procedurally adequate way and were
anchored in a sufficient evidentiary record. In this sense, § 2254(e)(1) departs from
prior law, but only to substitute general notions of procedural regularity and
substantive accuracy for detailed statutory standards.10
The AEDPA repealed former § 2254(d) and replaced it with two new provisions dealing with
state court fact-findings and fact-finding procedures, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). A
United States district court has the authority to grant a writ of habeas corpus where the state-court
adjudication of the claim “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”11 But this authority must
be interpreted in relation to the congressional directives that “a determination of a factual issue made
by a State court shall be presumed to be correct,” and that a habeas petitioner “shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.”12 In my dissent from
10
Larry W. Yackle, Federal Evidentiary Hearings Under the New Habeas Corpus Statute,
6 B.U. PUB. INT. L.J. 135, 140–41 (1996).
11
28 U.S.C. § 2254(d)(2).
12
28 U.S.C. § 2254(e)(1).
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the panel majority’s opinion, I stated that § 2254(d)(2) and §2254(e)(1) must be read in pari
materia.13 Doing so leads to the conclusion that the “‘determination[s] of a factual issue made by a
State court’ that section 2254(e)(1) tells courts to ‘presume[] to be correct’ are only those
determinations that survive section 2254(d)(2)’s winnowing out of ‘unreasonable
determination[s].’”14 The panel majority, however, found what it considered to be “an easier way to
harmonize § 2254(d)(2) and § 2254(e)(1)” and offered the following example:
[A] district court may find by clear and convincing evidence that the state court erred
with respect to a particular finding of fact, thus rebutting the presumption of
correctness with respect to that fact. See § 2254(e)(1). It is then a separate question
whether the state court's determination of facts was unreasonable in light of the
evidence presented in the state court proceeding. See § 2254(d)(2). Thus, it is
possible that, while the state court erred with respect to one factual finding under §
2254(e)(1), its determination of facts resulting in its decision in the case was
reasonable under § 2254(d)(2).15
This explanation makes sense in cases where the petitioner received a full and fair hearing in state
court. If the state court does not afford such a hearing, a federal evidentiary hearing is mandatory
13
See Valdez v. Cockrell, 274 F.3d 941, 968 (5th Cir. 2001) (Dennis, J., dissenting).
14
1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND
PROCEDURE § 20.2c, at 826 (4th ed. 2001).
15
Valdez v. Cockrell, 274 F.3d at 951 n.17.
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under Townsend.16 It is here that the panel majority’s explanation places the district judges in this
circuit in a difficult position by requiring a district court, after spending time and energy conducting
an evidentiary hearing, to disregard the evidence developed before it and instead give deference to
a state-court decision made through defective process or on an incomplete record. This court would
achieve better results if it recognized that the denial of a full and fair hearing in state court produces
per se “an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”17 Such a per se rule would be fully consistent with the text of the AEDPA.18 Moreover,
it would continue a consistent theme in our jurisprudence recognizing that we defer to a state habeas
court so long as it delivers a real decision on the merits based on a procedurally reasonable
determination of the facts.19 Finally, it would avoid the serious constitutional questions raised by the
panel majority’s interpretation of the AEDPA.20
ENDRECORD
16
See, e.g., Hughes v. Johnson, 191 F.3d 607, 630 (5th Cir. 1999).
17
28 U.S.C. § 2254(d)(2).
18
See 1 HERTZ & LIEBMAN, supra note 14, § 20.2c, at 825–31.
19
See Morris v. Cain, 186 F.3d 581, 584 (5th Cir.1999) (“A full and fair adjudication of a
petitioner’s claims in state court is a prerequisite for application of AEDPA’s review provisions.”);
Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir.1998) (“In this Circuit, provided the state court
conducted a full and fair adjudication of the petitioner’s claims, pure questions of law and mixed
questions of law and fact are reviewed under § 2254(d)(1), and questions of fact are reviewed under
§ 2254(d)(2).”).
20
See supra text accompanying note 10.
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Judges Wiener and Parker join Judge Dennis’s dissent and write separately to add the following:
The crux of the majority’s opinion is that application of the AEDPA’s deference scheme
swings on whether the state habeas court reached an “adjudication on the merits.” The majority’s
“logic” simplistically reasons that (1) anything —— everything —— that is not “procedural” is
automatically “substantive”; (2) any ruling that is “substantive” is an “adjudication on the merits”;
ergo, (3) any non-procedural ruling is an adjudication on the merits and is immunized from federal
habeas review under the AEDPA’s deference scheme. As accepted by the majority, this flawed
syllogism eviscerates meaningful federal habeas review of a state court’s flaunting abdication of its
duty to apply “the law of th[e Supreme] Court to the facts of a prisoner’s case.” Valdez, 274 F.3d
at 946-47. When, as here, the state habeas judge delays a determination for six years of inaction
between two perfunctory hearings, loses the exhibits in the meantime, and announces that he is too
busy to acquaint himself with the case by reading the trial transcript, we cannot credit that judge’s
putting pen to paper and rubberstamping the state’s proposed findings as being an “adjudication on
the merits.” If this court’s level of deference extends to what happened in this case, then federal
habeas review has been reduced to nothing more than a search for the state judge’s signature ——
a classic example of exalting form over substance.
ENDRECORD
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Judge DeMoss joins in Judge Dennis’ dissent for t he reasons stated therein and for the
additional reason that the only reason this habeas matter is under AEDPA is the ineptitude of the state
habeas judge in taking six years to reach a final decision on petitioner’s claims.
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