IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11359
Summary Calendar
LESTER DON PARKS,
Petitioner-Appellee,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:98-CV-26-C
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April 24, 2002
Before JOLLY, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Janie Cockrell, the Director of the Texas Department of
Criminal Justice, Institutional Division, appeals the district
court’s judgment granting an out-of-time appeal to Lester Don
Parks, Texas prisoner # 765940. The district court determined
that Parks’ trial counsel was ineffective in that he did not
advise Parks of his right to appeal and the applicable time
limitations, and he did not follow through with his promise to
file a notice of appeal on behalf of Parks. The Respondent
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-11359
-2-
argues that Parks’ claim is conclusional and that the district
court erred in considering Teresa Moore’s affidavit because Parks
did not submit Moore’s affidavit to the state habeas court.
Although Parks did not present Moore’s affidavit to the state
court, “all crucial factual allegations were before the state
courts at the time they ruled on the merits,” and, therefore, the
claim was fairly presented to the state court and has been
exhausted. See Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir.
2000), cert. denied, 532 U.S. 915 (2001). Further, the district
court noted that Moore’s affidavit was cumulative of Parks’
allegations. Parks’ claim is not conclusional as he alleged
under penalty of perjury that counsel did not advise him of his
right to appeal or the applicable time limits and that counsel
promised to file an appeal but failed to do so. See 28 U.S.C.
§ 1746; Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1306
(5th Cir. 1988).
The Respondent argues that the district court erred in
granting Parks’ habeas petition on this issue without conducting
an evidentiary hearing; however, the Respondent argues that under
28 U.S.C. § 2254(e)(2), Parks is not entitled to an evidentiary
hearing because he failed to develop the record in the state
habeas court. The Respondent also argues that the district court
erred in shifting the burden of proof to the Respondent. The
failure to develop the state record is not attributable to Parks,
as the state habeas court did not order either party to submit
affidavits, did not hold an evidentiary hearing, did not make
findings of fact or conclusions of law, and merely stated that
No. 01-11359
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the application was denied by operation of law pursuant to Texas
Code of Criminal Procedure article 11.07 § 3(c). See Williams v.
Taylor, 529 U.S. 362, 432 (2000). Therefore, Parks is not
precluded from obtaining a federal evidentiary hearing by
28 U.S.C. § 2254(e)(2). See Williams, 529 U.S. at 432.
The district court may resolve factual issues through
consideration of conflicting affidavits. See Brown v. Johnson,
224 F.3d 461, 466 (5th Cir. 2000); McDonald v. Johnson, 139 F.3d
1056, 1059-60 (5th Cir. 1998). As noted above, Parks’
allegations made under penalty of perjury were the equivalent of
allegations made in an affidavit under 28 U.S.C. § 1746. The
Respondent did not submit an affidavit from Parks’ trial counsel
as directed by the district court. The district court did not
improperly shift the burden to the Respondent by ordering the
Respondent to file an affidavit from Parks’ trial counsel. See
Brown, 224 F.3d at 466; McDonald, 139 F.3d at 1059-60. The
district court did not err in holding that the only evidence
before the court supported Parks’ allegations that his counsel
stated he would file an appeal but failed to do so. See Brown,
224 F.3d at 466; McDonald, 139 F.3d at 1059-60. Parks’ motion
for appointment of counsel is DENIED. Parks’ motion to
supplement the record is also DENIED.
AFFIRMED; MOTIONS DENIED.