[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12683 ELEVENTH CIRCUIT
MARCH 3, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00277-CV-4
JOSE FERNANDO COLON,
Petitioner-Appellant,
versus
WARDEN FRED BURNETT,
ATTORNEY GENERAL OF GEORGIA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(March 3, 2009)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Jose Colon appeals the denial of his petition for a writ of habeas corpus. 28
U.S.C. § 2254. We granted a certificate of appealability to resolve whether, in the
light of Ferguson v. Culliver, 527 F.3d 1144 (11th Cir. 2008), the district court
erred by relying solely on the findings of the state appellate court to resolve
Colon’s challenges to the admission of victim impact testimony, a jury instruction
about the state aggravated child molestation law, and the effectiveness of trial
counsel. We vacate the denial of Colon’s petition on these three issues and remand
for reconsideration in the light of the state court transcript.
A petitioner is entitled to a writ of habeas corpus if the state court reached a
decision that was “contrary to, or involved an unreasonable application of, clearly
established Federal law.” 28 U.S.C. § 2254(d)(1). To determine if a decision is
“contrary to” clearly established federal law, the district court must consider
whether the state court was presented with facts that are “materially
indistinguishable” from Supreme Court precedent, but reached a contrary result.
See Putman v. Head, 168 F.3d 1223, 1241 (11th Cir. 2001). To determine if the
state court has unreasonably applied clearly established federal law, the district
court must consider whether the state court “identifie[d] the correct legal rule from
Supreme Court case law but unreasonably applie[d] that rule to the facts of the
petitioner’s case.” Id. The findings of fact made by the state court are presumed to
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be correct, but may rebutted by clear and convincing evidence to the contrary, 28
U.S.C. § 2254(e)(1), and may not be entitled to the same deference when the state
fails to supply “the pertinent part of the record . . . .” Id. § 2254(f). Both grounds
for relief often require the district court to examine the record of the state
proceedings. See Ferguson, 527 F.3d at 1148–49.
Colon raises three issues that require the district court to review the state
trial record. First, Colon argues that the admission of victim impact evidence
violated his right to due process. To resolve this issue, the district court must
determine whether an evidentiary error occurred and, if so, whether admission of
the evidence “‘so infused the trial with unfairness as to deny due process of law.’”
Felker v. Turpin, 83 F.3d 1303, 1311–12 (11th Cir. 1996) (quoting Lisenba v.
California, 314 U.S. 219, 228, 62 S. Ct. 280, 286 (1941)); see Ferguson, 527 F.3d
at 1148–49 (discussing Stewart v. Erwin, 503 F.3d 488 (6th Cir. 2007)). Second,
Colon argues that the trial court erred when it instructed the jury that it could find
Colon guilty of aggravated child molestation if the act of molestation “physically
injure[d] the child” or “involve[d] an act of sodomy” even though Colon was
indicted only for the latter act. The district court must determine in the light of the
other directions given to the jury whether the instruction constructively amended
Colon’s indictment and violated his right to due process. See Stirone v. United
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States, 361 U.S. 212, 80 S. Ct. 270 (1960). Third, Colon argues that trial counsel
acted ineffectively when on cross-examination he asked a detective whether the
victims’ statements were credible. The district court must resolve whether it was
reasonable for the state court to conclude from the record that the question was
used as part of a reasonable strategy to draw attention to inconsistencies in the
victims’ stories. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984).
The record is unclear whether the district court possessed a copy of the
record of the state court. Colon submitted a number of exhibits, including the
transcript of a hearing on his motion for a new trial and the order that denied the
motion, but he did not file a transcript of his trial. The magistrate judge instructed
the state to “furnish with [its] answer a copy of any trial transcripts, the transcripts
of any state habeas corpus proceedings,” and the opinion of the state appellate
court of any post-conviction proceeding, but the state did not file the transcripts or
any other documents with its response. Although the state filed a transcript of the
trial with its answer to Colon’s previous petition for a writ of habeas corpus and
that transcript is available electronically, it is unclear whether the district court
accessed that electronic record.
It is equally unclear whether the district court consulted a transcript before it
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ruled on Colon’s petition. The magistrate judge mentioned the “record” in his
discussion of both the victim impact evidence and issue of ineffective assistance of
counsel, but the magistrate judge relied on the findings of fact of the state appellate
court. The order of the district court states that it reviewed the “record in this
case,” which as stated above was comprised only of those documents that Colon
had submitted. The record contains no evidence that the district court reviewed the
transcript of Colon’s trial.
In the absence of an adequate record, we cannot meaningfully review the
merits of Colon’s appeal. We express no opinion about whether Colon is entitled
to prevail on the merits of his petition.
We VACATE the denial of Colon’s petition for a writ of habeas corpus to
the extent that it presents issues about the admission of victim impact evidence,
whether the jury instruction constructively amended Colon’s indictment, and
whether Colon’s trial counsel was ineffective in cross-examining the detective
about the victims’ statements, and we REMAND for further proceedings
consistent with this opinion.
VACATED AND REMANDED.
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