United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 25, 2005
Charles R. Fulbruge III
Clerk
No. 03-20991
HOWARD PAUL GUIDRY,
Petitioner-Appellee,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
ON PETITION FOR REHEARING EN BANC
(Opinion 1/14/05, 5th Cir., Guidry v. Dretke, 397 F.3d 306)
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of its members, and
a majority of the judges who are in active service not having voted
in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for
Rehearing En Banc is DENIED.
The author of the underlying majority opinion, RHESA HAWKINS
BARKSDALE, Circuit Judge, offers the following comments regarding
the Dissent to the Denial of Petition for Rehearing En Banc
(Dissent to Denial).
Howard Guidry was convicted in Texas state court of murder for
remuneration and given the death penalty (death-penalty
conviction). The district court granted conditional habeas relief
pursuant to the Antiterrorism and Effective Death Penalty Act of
1996, 28 U.S.C. § 2254 (AEDPA); our divided panel affirmed. The
majority opinion and dissent from that opinion go into great detail
regarding the numerous factual and legal issues surrounding AEDPA’s
application, including whether the district court abused its
discretion in holding an evidentiary hearing. Guidry v. Dretke,
397 F.3d 306 (5th Cir. 2005); id. at 331 (Garza, J., dissenting).
Usually, no response is required to a dissent from the denial
of en banc review; the underlying panel opinion is answer enough.
This is an exception because the Dissent to Denial is wide of the
mark. The most glaring instance is its reliance on an AEDPA issue
that was never raised by the State in contesting the conditional
habeas relief: the interplay of the properly-held evidentiary
hearing and 28 U.S.C. § 2254(d)(2) (federal habeas relief to be
granted if the state court “decision ... was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding” (emphasis added)).
2
I.
For his death-penalty conviction, Guidry was granted
conditional federal habeas relief on his Fifth and Sixth Amendment
claims. Guidry, 397 F.3d at 309. The Dissent to Denial challenges
only the majority’s holdings on the Fifth Amendment (confession)
claim. To understand why en banc review is not compelled for this
extremely fact-specific appeal, a far more detailed recitation of
the facts is required than is provided by the Dissent to Denial.
Of course, the most complete recitation is found in the underlying
opinion. See id. at 309-18. Although the following recitation is
far more complete than that offered by the Dissent to Denial, it
only scratches the surface.
On 1 March 1995, Guidry was arrested for bank robbery; in his
possession was the gun used to murder Farah Fratta on 9 November
1994. Id. at 310. On 7 March 1995, while Guidry was being held on
the bank-robbery charge, Detectives Roberts and Hoffman questioned
him about Farah Fratta’s murder, resulting in his confession. Id.
The testimony at the pre-trial hearing on Guidry’s motion to
suppress the confession provided “sharply contrasting versions of
the interrogation leading to the confession”. Id. Guidry claimed:
his robbery-charge attorney had instructed him not to discuss
anything with anyone; therefore, when interrogated about Farah
Fratta’s murder, Guidry requested his attorney; after his second
request, Detectives Roberts and Hoffman left the room; on
3
returning, they advised Guidry they had contacted his attorney, who
had given Guidry permission to answer their questions; and, in
reliance on such alleged permission, Guidry confessed. Id. at 311.
Guidry’s suppression motion claimed his confession was
violative of his Fifth Amendment rights. Id. at 310. At the 1996
(first) pre-trial hearing on the motion, Gottlieb, an attorney
unaffiliated with the Guidry case, testified about a 15 March 1995
conversation in the chambers of a Texas state judge, who was not
present. Id. at 312-13. Those present for the in-chambers
conversation were Gottlieb, Guidry’s two attorneys for his murder
charge, an assistant district attorney, Detective Roberts, and
another detective. Id. at 313. According to Gottlieb, while
discussing the circumstances under which Guidry had confessed
approximately a week earlier, Detective Roberts and the other
detective stated that they had talked to Guidry’s attorney and
obtained his permission for them to talk to Guidry before they took
his statement. Id. at 313. Gottlieb testified that she and other
in-chambers attorneys were shocked that such permission would have
been given to a person suspected of capital murder. Id.
Detective Roberts, on the other hand, gave inconsistent
testimony at the 1996 (first) pre-trial hearing, ultimately
testifying that he did not know whether Guidry had an attorney, and
that he “never did confirm if he had an attorney”. Id. at 311-12
(emphasis in original). As discussed infra, a second hearing was
4
held after Guidry’s attorneys at the first hearing were allowed to
withdraw so they could testify about the in-chambers conversation.
As he had done at the first hearing, Detective Roberts gave
inconsistent testimony at the 1997 (second) pre-trial hearing.
First, he testified that he had “no knowledge that [Guidry] had an
attorney”; later, he testified that Guidry had told him he had an
attorney but never asked to speak with him. Id. at 312 (emphasis
in original). He also testified that he had no recollection of the
15 March in-chambers conversation. Id. at 314.
Duerr, Guidry’s robbery-charge attorney, testified at the 1996
(first) hearing that he never gave permission for anyone to discuss
such matters with Guidry. Id. at 313. At this point in the
hearing, Guidry’s two murder-charge attorneys, who had been present
at the in-chambers conversation, moved to withdraw as Guidry’s
counsel so that they could testify about that conversation; the
motion was granted. Id. (stating that both attorneys, in addition
to Gottlieb, testified at the subsequent 1997 hearing).
The suppression motion was denied orally prior to trial.
“Just before doing so, the state court stated that, for purposes of
ruling on the admissibility of Guidry’s confession, the 15 March
in-chambers ‘conversation was absolutely meaningless, except as it
relate[d] to credibility.’” Id. at 314 (alteration and emphasis in
original). On 27 March 1997, the trial court entered post-verdict
written findings of fact and conclusions of law regarding its pre-
5
trial denial of Guidry’s suppression motion, but did not mention
the attorneys’ testimony at the two pre-trial evidentiary hearings
regarding the in-chambers conversation. Id. at 314-15.
On direct appeal, the Texas Court of Criminal Appeals
rejected, inter alia, Guidry’s Fifth Amendment claim, holding “the
trial court’s findings were sufficiently detailed”. Id. at 315
(quoting Guidry v. State, 9 S.W.3d 133, 142 (Tex. Crim. App. 1999),
cert. denied, 531 U.S. 837 (2000)) (internal quotations omitted).
In May 2000, Guidry filed a state habeas petition raising,
inter alia, his Fifth Amendment claim. Id. at 316. Two months
later, without an evidentiary hearing, the state habeas trial court
adopted verbatim the State’s proposed findings of fact and
conclusions of law. Id. In November 2000, the Texas Court of
Criminal Appeals denied habeas relief, ruling that the habeas trial
court’s findings and conclusions were supported by the record. Id.
Guidry filed his federal habeas petition in November 2001,
raising, inter alia, his Fifth Amendment claim and requesting an
evidentiary hearing. Id. The district court “denied the State’s
summary judgment motion and ordered an evidentiary hearing for the
voluntariness vel non of Guidry’s confession”. Id. at 316-17
(detailing the district court’s concern about the substantial
factual questions pertaining to Guidry’s confession, including the
state court’s failure to evaluate the veracity of the attorneys’
testimony as well as the detectives’ inconsistent and contradictory
6
testimony). In district court, the State never objected to the
evidentiary hearing’s being held. Id. at 317.
At the district court evidentiary hearing, Guidry and the
attorneys gave “substantially the same testimony” as at the two
state pre-trial hearings. Id. On the other hand, Detective
Roberts’ testimony contained several substantial differences from
his state-court testimony. Id. For example, he testified for the
first time that, prior to questioning Guidry, he had contacted an
assistant district attorney to seek permission to do so because,
based on the length of time Guidry had been in jail on the robbery
charge, Roberts thought Guidry probably had an attorney. Id. at
317-18. As another example, Roberts testified, again for the first
time, that he recalled the in-chambers conversation; and that, in
the conversation, he never told Guidry’s then murder-charge
attorneys that, during Guidry’s interrogation, he had contacted
Guidry’s robbery-charge attorney. Id. at 317.
Based on the evidentiary hearing, the district court ruled
that, “pursuant to 28 U.S.C. § 2254(e)(1), Guidry, with the
requisite clear and convincing evidence, rebutted the presumption
of correctness AEDPA accords to state court determinations of
fact”. Id. at 318. Accordingly, in September 2003, the district
court granted conditional habeas relief on, inter alia, Guidry’s
Fifth Amendment claim. Id. On appeal, our divided panel held,
inter alia, that the district court: had not abused its discretion
7
by conducting an evidentiary hearing; and had properly granted
conditional habeas relief. Id.
II.
As is often the case, and understandably so, sharply differing
views are offered for AEDPA’s proper application to a state death-
penalty conviction. In this instance, the differences are even
more pronounced because the Dissent to Denial paints a picture
greatly at odds with what has transpired, including during the
appeal for which en banc review has been denied. The Dissent to
Denial’s most serious defect is its reliance upon an issue, never
raised by the State, concerning the interplay of the district court
evidentiary hearing and the strictures of 28 U.S.C. § 2254(d)(2)
(federal habeas relief proper when the state court “decision ...
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding”).
A.
The Dissent to Denial at 2 n.3 acknowledges that it presents
“[o]nly a thumbnail sketch” of these complicated facts.
Nevertheless, the following five clarifications must be made to
that all too brief recitation.
1.
Concerning Guidry’s confession, the Dissent to Denial’s block
quote at 3 from the state trial court’s factual findings is
confusing because the Dissent to Denial does not explain that the
8
events described in that quotation came after Guidry claims he was
misled by Detectives Roberts and Hoffman. Thus, the Dissent to
Denial fails to describe properly the role Detective Roberts played
throughout Guidry’s interrogation and subsequent confession. See
Guidry, 397 F.3d at 311 (setting forth Detective Roberts’
involvement, according to Guidry).
2.
The Dissent to Denial at 2 states that, after the
interrogation at issue, the crucial in-chambers conversation took
place “at a later date”. That “later date” was a mere eight days
after Guidry’s interrogation and confession. Guidry, 397 F.3d at
310. This short interval between the two events is pertinent,
because it reflects that the claimed in-chambers comments by
Detective Roberts were made soon after Guidry’s interrogation.
3.
According to the Dissent to Denial at 2, the in-chambers
conversation “could have left the impression that Detective Roberts
may have lied about his contacts with Guidry’s [bank-robbery]
attorney”. If the attorneys testified truthfully, then Detective
Roberts did indeed lie. Guidry, 397 F.3d at 313-14. (On the other
hand, to conclude that the attorneys lied is to find that they
concocted Guidry’s version of the interrogation before he testified
at the first evidentiary hearing, when two of the attorneys who had
9
participated in the in-chambers conversation were his murder-charge
counsel for that subsequent hearing. Id.)
4.
The Dissent to Denial at 3 maintains the state habeas court
“held that Guidry failed to demonstrate a violation of his Fifth
Amendment rights”. As the state habeas court ruled, because
Guidry’s confession claim had been raised on direct appeal, the
state habeas court was precluded from considering the issue and,
thus, made only alternative rulings concerning the confession’s
admissibility. Guidry, 397 F.3d at 316, 325-26; Gill v. State, 111
S.W.3d 211, 214 n.1 (Tex.App.-Texarkana 2003) (“The general
doctrine ... forbids an application for a writ of habeas corpus
after direct appeal has addressed an issue”.).
5.
In listing differences between Detective Roberts’ testimony at
the 1996 and 1997 pre-trial suppression hearings and at the 2002
district court evidentiary hearing, the Dissent to Denial at 4
fails to note two of the most, if not the most, important changes
in that testimony. First, in state court, Detective Roberts
testified that he did not know that Guidry had an attorney; in
district court, however, Detective Roberts testified that, prior to
questioning Guidry, he had contacted an assistant district attorney
to seek permission to question Guidry because, based on Guidry’s
having been in jail for several days for the bank-robbery charge,
10
Detective Roberts knew Guidry probably had an attorney. Guidry,
397 F.3d 311-12, 317-18. Second, when testifying at the district
court evidentiary hearing, Detective Roberts stated, for the first
time, that he did recall the 15 March 1995 in-chambers
conversation. Id. at 317.
B.
In addition to the above factual corrections, the Dissent to
Denial’s following five erroneous contentions about AEDPA’s
application must be addressed. Again, the most significant error
is a claim never raised by the State: that § 2254(d)(2) limits the
evidence that may be considered by the district court to that
presented in state court, even if, as here, the district court did
not abuse its discretion in holding an evidentiary hearing. That
issue is not present in this appeal and, accordingly, was not
considered.
1.
The Dissent to Denial at 1 charges the majority opinion with
“send[ing] confusing signals” to district courts and state courts
about AEDPA. Instead, a clear signal is transmitted: the
deferential review mandated by AEDPA does not automatically equate
with affirmance when the state court fails to make crucial findings
to support its ruling. See Miller-El v. Dretke, 537 U.S. 322, 340
(2003) (“Even in the context of federal habeas, deference does not
imply abandonment or abdication of judicial review.”).
11
2.
Contrary to the assertion by the Dissent to Denial at 1, the
district court did not conduct an evidentiary hearing “solely to
reassess the state court’s credibility choices”. Rather, as
described in the majority opinion, the hearing was held for several
reasons. Guidry, 397 F.3d at 321-22, 324 (explaining that the
district court’s decision to hold an evidentiary hearing was based
on: testimony of Guidry and four attorneys forming the basis of
a constitutional claim that, “if true, might entitle Guidry to
relief”; unexplained and unmentioned “gaps, inconsistencies, and
conflicting testimony” in the trial court’s factual findings and
legal conclusions; and omissions of key credibility
determinations).
Along those lines, the majority opinion does not, as the
Dissent to Denial suggests, “overturn[] the [state court] findings
relating to the voluntariness of Guidry’s confession” because of
the above-referenced gaps, omissions, and unexplained testimony.
Dsnt. to Denial at 7 (emphasis added). Rather, the majority
affirms the district court’s finding that, pursuant to 28 U.S.C. §
2254(e)(1), the presumption of correctness accorded those state
court findings was overcome by the requisite clear and convincing
evidence.
12
3.
The Dissent to Denial at 5 maintains the district court abused
its discretion by holding an evidentiary hearing. The decision to
hold that hearing was made after the district court had considered
the State’s summary judgment motion and ruled, within its
discretion, that a hearing was required. Guidry, 397 F.3d at 316-
17, 322 (noting that, in general, the State did not contest a
district court’s having discretion under AEDPA to conduct an
evidentiary hearing; instead, it claimed an abuse of that
discretion).
With certain exceptions, 28 U.S.C. § 2254(e)(2) bars an
evidentiary hearing if the factual basis of a claim was not
presented in state court. Section 2254(e)(2), however, was not at
issue here; at issue was § 2254(e)(1) (presumption of correctness
to be accorded state court factual findings may be overcome by
clear and convincing evidence). Indeed, as the State conceded, §
2254(e)(2) did not bar an evidentiary hearing; the factual basis
was more than adequately presented in state court. Guidry, 397
F.3d at 323.
The district court’s holding the hearing was consistent with
our precedent. In other words, as held by the majority opinion,
the district court did not abuse its discretion. Id. at 318-24.
“Where a district court elects, in instances not barred by §
2254(e)(2), to hold an evidentiary hearing, the hearing may assist
13
the district court in ascertaining whether the state court reached
an unreasonable determination under either § 2254(d)(1)
[(unreasonable application of law)] or (d)(2) [(unreasonable
determination of the facts)].” Valdez v. Cockrell, 274 F.3d 941,
952 (5th Cir. 2001), cert. denied, 537 U.S. 883 (2002); see Murphy
v. Johnson, 205 F.3d 809, 815 (5th Cir.), cert. denied, 531 U.S.
957 (2000) (holding that Rule 8 of the Rules Governing Section 2254
Cases in the United States District Court vests district courts
with discretion to conduct an evidentiary hearing, so long as it is
not barred by § 2254(e)(2)); Clark v. Johnson, 202 F.3d 760, 765
(5th Cir.), cert. denied, 531 U.S. 831 (2000) (same).
Rather than citing to our court’s precedent, the Dissent to
Denial cites a decision from another circuit to support its abuse-
of-discretion contention. Dsnt. to Denial at 6 (citing Villafuerte
v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997), cert. denied, 522
U.S. 1079 (1998)). The Dissent to Denial fails to note, however,
a more recent decision from that circuit: Taylor v. Maddox, 366
F.3d 992 (9th Cir.), cert. denied, 125 S. Ct. 809 (2004). Taylor
held a state court’s failing to make findings on critical evidence
negated the § 2254(e)(1) presumption of correctness and caused the
fact finding to be unreasonable; because petitioner relied only on
the state court record, the circuit court engaged in its own fact
finding. Id. at 1007-09.
14
4.
Undeterred by the State’s concession that the evidentiary
hearing was not barred by § 2254(e)(2), the Dissent to Denial at 7
opines that the majority opinion “appears to broach the ‘new
evidence’ prong of AEDPA Section 2254(e)(2)”. This charge rests on
Detective Roberts’ changed testimony between the state and federal
hearings. Id.; Guidry, 397 F.3d at 311-12, 317-18.
Again, except in limited circumstances, consideration of new
factual claims is barred where “the applicant has failed to develop
the factual basis of a claim in State court proceedings”. 28
U.S.C. § 2254(e)(2). Detective Roberts was one of the State’s key
witnesses on the Fifth Amendment claim. His changing his state-
court testimony at the federal evidentiary hearing does not fall
within § 2254(e)(2)’s proscription. On this record, it is a
stretch indeed to suggest § 2254(e)(2) might bar considering
Detective Roberts’ testimony at the district court evidentiary
hearing because he changed his testimony from that given in state
court when questioned on the same points.
5.
Finally, the Dissent to Denial’s most serious error is
maintaining the majority opinion violated § 2254(d)(2). Section
2254(e)(1), not § 2254(d)(2), was at issue in this appeal. Section
§ 2254(d)(2) provides that habeas relief shall not be granted for
any claim adjudicated on the merits in state court unless the
15
adjudication “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”. 28 U.S.C. § 2254(d)(2)
(emphasis added). Its counterpart, § 2254(d)(1), provides that
habeas relief shall not be granted for any claim adjudicated on the
merits in state court unless the adjudication “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law”. 28 U.S.C. §
2254(d)(1).
In claiming only the state court record could be considered,
notwithstanding the district court evidentiary hearing, the Dissent
to Denial at 5 relies on the “evidence presented in the State court
proceeding” language of § 2254(d)(2). In support, it cites Holland
v. Jackson, 124 S. Ct. 2736, 2737-38 (2004), which held that, after
the district court granted the State’s summary judgment motion, the
circuit court erred under § 2254(d)(1) in deciding that the state
court’s application of Supreme Court ineffective-assistance-of-
counsel precedent was unreasonable because the circuit court relied
on “evidence not properly before the state court”. In Holland,
however, there was no evidentiary hearing in district court and §
2254(d)(1), not § 2254(d)(2), was at issue. Id. (“Under the habeas
statute, [a] statement [relied upon by petitioner and first
presented in state court after habeas relief was denied] could have
16
been the subject of an evidentiary hearing by the District Court
... if the conditions prescribed by § 2254(e)(2) were met.”).
More to the question at hand, the State did not raise this
issue on appeal. Guidry, 397 F.3d at 325. Therefore, unless the
issue is jurisdictional, it cannot be the basis for granting en
banc review. This rule is so well established that citation to
authority should not be necessary. See, e.g., United States v.
Southland Mgmt. Corp., 326 F.3d 669, 677 (5th Cir. 2003) (en banc)
(Jones, J., concurring) (regarding an issue presented for the first
time to the en banc court in a court-ordered supplemental brief:
“[W]e review only those issues presented to us; we do not craft new
issues or search for them in the record .... In short, it is not
for us to decide which issues should be presented, or to otherwise
try the case for the parties”. (quoting United States v. Brace, 145
F.3d 247, 255-56 (5th Cir.) (en banc), cert. denied, 525 U.S. 973
(1998))).
Because the State relied only on § 2254(e)(1), the scope and
limitations of § 2254(d)(2) were not at issue on appeal. Indeed,
the State’s not raising a § 2254(d)(2) claim was noted in the
majority opinion: “The State does not claim, in the alternative,
that, even if the district court’s [§ 2254](e)(1) ruling is
correct, its [§2254](d)(2) ruling was incorrect. Therefore, that
question is not before us”. Guidry, 397 F.3d at 325 (emphasis
17
added). In its Petition for Rehearing En Banc, the State does not
challenge this conclusion.
As noted, the only exception that would allow our court sua
sponte to consider the newly claimed strictures of § 2254(d)(2)
would be if they were jurisdictional. In Miller-El v. Dretke, 125
S. Ct. 2317 (2005), evidence added to the record after the federal
habeas petition was filed (the State did not object; no evidentiary
hearing was held) played a key role in habeas relief being granted
by the Supreme Court. Id. at 2335 n.15. In challenging
consideration of this supplemental evidence as being outside the
state court record, and, therefore, claiming this violated the
strictures of § 2254(d)(2), Justice Thomas maintained that those
“strictures ... are not discretionary or waivable. Through AEDPA,
Congress sought to ensure that federal courts would defer to the
judgments of state courts, not the wishes of litigants”. Id. at
2349 (Thomas, J., dissenting). In taking this position, Justice
Thomas suggested that those strictures may be jurisdictional. Id.
This position was not, however, adopted by the Court. Id. at 2335
n.15.
In any event, the Dissent to Denial does not make a
jurisdictional claim concerning § 2254(d)(2). In short, its
assertions about that section and its interplay with evidence
developed in a district court evidentiary hearing must await
18
another appeal. The majority opinion takes no position on this
issue.
III.
A majority of our court has decided that this extremely fact-
intensive matter will not receive en banc review. The Dissent to
Denial offers various reasons for granting such review, but they
are simply inconsistent with the record for this proceeding,
including the majority opinion’s precedent-supported holdings.
AEDPA’s application to state death-penalty convictions is
complicated and subject to differing views. In this instance,
however, the differences stated by the Dissent to Denial fall far
short of demonstrating why our court should conduct en banc review,
especially for the § 2254(d)(2) issue never raised by the State.
19
EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH, GARZA,
DEMOSS, CLEMENT and OWEN, Circuit Judges, dissenting from the
denial of rehearing en banc:
With due respect to the panel majority’s diligence, we
dissent from the court’s denial of rehearing en banc in this case.
The majority opinion sends confusing signals to the district courts
and, equally unfortunately, to our brethren in the state courts as
to the acceptable standards and procedures for federal habeas
review. The majority opinion also stands in tension with
Congress’s goal, enacted through AEDPA, of enforcing comity and
deference toward state court judgments of conviction.
The legal mischief in the panel’s decision lies in
(a) its approval of the district court’s holding an evidentiary
hearing solely to reassess the state court’s credibility choices,1
and (b) its refusal to credit the state courts’ decisions based on
the outcome of that federal hearing.2
1
The panel concisely summarizes the reasons for the district court’s decision to conduct an evidentiary
hearing:
(1) testimony by Guidry and four lawyers — three of whom had served as assistant district attorneys
— formed the basis for a constitutional claim that, if true, might entitle Guidry to relief; (2) gaps,
inconsistencies, and conflicting testimony were not explained, or even mentioned, in the trial court’s
findings of fact and conclusions of law; and (3) these omissions reflected the trial court’s failure to
make crucial credibility assessments.
Guidry v. Dretke, 397 F.3d 306, 324 (5th Cir. 2005). The panel then approvingly states that “[t]hese quite legitimate
concerns about conflicting evidence permitted the district court, within AEDPA’s boundaries, to investigate those
conflicts so that it could rule properly on the habeas petition.” Id.
2
The panel states with approval that, pursuant to 28 U.S.C. § 2254(e)(1), “the district court did not
accept the state court’s determinations of fact because the trial court made no findings on considerable evidence critical
to Guidry’s claim.” Guidry, 397 F.3d at 326.
20
BACKGROUND
The state courts were required to decide whether capital
murder defendant Guidry requested advice of counsel during his
interrogation, and whether the detectives told him, untruthfully,
that his attorney said he should talk to them.3 (Guidry confessed
to murder for hire at the end of the questioning.) The state trial
court held two pretrial hearings to ferret out the truth. Guidry
and the detectives differed on what was said during the
interrogation. Four attorneys testified concerning unofficial
conversations with two of the detectives at a later date (the
“in-chambers testimony”), which conversations could have left the
impression that Detective Roberts may have lied about his contacts
with Guidry’s attorney.
The state trial court denied Guidry’s motion to suppress
the confession, stating in open court that the “[in-chambers]
conversation was meaningless, except as it relate[d] to
credibility.” Guidry v. Dretke, 397 F.3d 306, 314 (5th Cir. 2005).
The state court admitted Guidry’s confession, in addition to
substantial circumstantial evidence. After Guidry’s conviction,
the trial court wrote that:
At all times Guidry advised [Detective] Tonry in
Hoffman’s presence that Guidry understood what his rights
[were], never requested to have an attorney, never asked
to call his attorney, never desired his attorney, never
refused to discuss the case without his attorney. And,
3
A painstaking recitation of the facts appears in the majority opinion. Only a thumbnail sketch
appears here.
21
as a result, Guidry continued voluntarily discussing his
complicity in the . . . murder for hire with Detectives
Hoffman and Tonry. . . . [T]he statements were
voluntarily made, not induced by force, threats or
coercion, nor were any promises made, nor was anything
done to induce [Guidry] or cause [Guidry] to make
anything but a knowing and intentional waiver of his
rights and a free and voluntary decision to confess.
(quoting the state trial court’s findings of fact and conclusions
of law). Id. at 314-15. The court made no written findings
regarding the lawyers’ testimony about the in-chambers
conversation. Finding the trial court’s express and implicit
findings supported by the record and consistent with its
determination that Guidry had not requested an attorney, the Texas
Court of Criminal Appeals (“TCCA”) affirmed the state court’s
suppression ruling.
The state habeas court, without an evidentiary hearing,
held that Guidry failed to demonstrate a violation of his Fifth
Amendment rights. The habeas court cited the 1996 hearing
(specifically referencing the testimony of attorneys Gottlieb and
Duer) but not the 1997 hearing at which attorneys Scott and
Yarborough testified. The TCCA made no express findings
reconciling the conflicting testimony or balancing the credibility
of the witnesses. The TCCA affirmed the denial of habeas relief.
In response to Guidry’s federal habeas petition, the
district court conducted an evidentiary hearing after concluding
that “[t]he state courts made no attempt to evaluate the veracity
of the attorney testimony or analyze its implication in this case.
22
The state courts made no specific finding with respect to the
inconsistent and contradictory testimony by the police officers.”
Guidry, 397 F.3d at 317. At the 2002 evidentiary hearing, all of
the witnesses gave substantially the same, if not identical,
testimony to that given at the state court hearings. However, a
portion of Detective Roberts’s 2002 testimony was different from
his 1996 and 1997 testimony. In 2002, he testified, inter alia,
that Guidry may have had an attorney, given the number of days he
had been in jail, and that Guidry may have told him he had an
attorney. Guidry, 397 F.3d at 317-18. Roberts continued to deny
the ultimate contentions: that Guidry requested a consultation
with counsel during his interrogation, Guidry, 397 F.3d at 332, n.2
(Garza, J., dissenting); and that Roberts lied to Guidry that his
attorney advised Guidry to answer the questions.
The district court then reevaluated the witnesses’
credibility de novo, found that the detectives violated Guidry’s
Fifth Amendment rights, and granted him habeas relief on that
claim. The panel affirmed the district court.
1. Granting a duplicative hearing.
Contrary to the panel majority, we would hold that the
district court abused its discretion in ordering a de novo
evidentiary hearing solely to reassess the credibility of the
witnesses to the suppression issues who had already testified in at
least one of the two state court evidentiary hearings. The panel
23
majority’s approval of this redundant hearing cannot be reconciled
with AEDPA’s requirement that the reasonableness of state court
factfindings must be assessed “in light of the evidence presented
in the state court proceedings.” 28 U.S.C. 2254(d)(2).4 See also
Holland v. Jackson, __ U.S. __, 124 S. Ct. 2736, 2737-38 (2004)
(“whether a state court’s decision was unreasonable must be
assessed in light of the record the court had before it”) (citing
cases) (emphasis added). The majority relies heavily on the
federal court’s discretion to conduct hearings, conferred by
Federal Rule 8 of the Rules Governing Habeas Proceedings, but that
rule must be subservient to AEDPA and Supreme Court caselaw.
If the majority is right, then a federal court could, in
its discretion, order an entire case retried in order to decide
whether the evidence was constitutionally sufficient to support the
defendant’s guilt, or it could retry the evidence on a Brady claim
to judge the police officers’ credibility for itself. Any number
of other examples could be advanced, but in all such cases, the
federal court would be displaying the opposite of the deference to
state court procedures and decisions from that mandated by AEDPA.
Even before AEDPA was passed, where a state habeas petitioner
“wanted the district court to hear the same evidence heard by the
state court,” it was held that, “[t]his is not a valid reason for
4
See Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029 (2003) (Section 2254(d)(2) means that
a decision “adjudicated on the merits in a state court and based on a factual determination will not be overturned on
factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding”)
(emphasis added).
24
an evidentiary hearing in federal court.” Villafuerte v. Stewart,
111 F.3d 616, 633 (9th Cir. 1997) (pre-AEDPA case, citing Keeney v.
Tamayo-Reyes, 504 U.S. 1, 11-12, 112 S. Ct. 1715, 1721 (1992)).
Deference does not, of course, require the federal court
always to approve state court credibility choices. Miller-El, 537
U.S. at 229, 123 S. Ct. at 1041. But a federal court has no
warrant in AEDPA to retry historical facts simply to reassess
witness credibility.5 The tension with AEDPA is heightened in this
case by the majority’s reliance on the circumstance that Detective
Roberts actually changed his testimony in the federal district
court hearing. The panel thus appears to broach the “new evidence”
prong of AEDPA Section 2254(e)(2),6 even though Guidry failed to
satisfy the demanding predicate for admission of new evidence in
the federal proceeding.
2. Rejecting the State Court Factfindings.
Pursuant to AEDPA, the factfindings of state courts are
entitled to a presumption of correctness unless they are proven
incorrect by clear and convincing evidence. 28 U.S.C. § 2254(e)(l).
Here, the majority overturns the findings relating to the volun-
tariness of Guidry’s confession because it finds gaps in the
5
Here the federal district judge explicitly stated, “I need to be able to make some credibility
determinations on my own and figure out what’s going on. Now that I heard the evidence, I guess it’s time for me to
look at basically the same issues again but with a little more knowledge.” Guidry, 397 F.3d at 333 (Garza, J.,
dissenting) (quoting the federal district court record) (emphasis added).
6
28 U.S.C. § 2254(e)(2) sets stringent limits on the factual development of a new claim in federal
habeas.
25
witnesses’ testimony and it believes that the state courts failed
to recite, explicitly reconcile, and measure the relative credi-
bility of all conflicting testimony. The majority holds that the
district court need not accept the state court’s findings “because
the trial court made no findings on considerable evidence critical
to Guidry’s claim.” 397 F.3d at 326. To the majority, these sins
of omission — especially concerning the lawyers’ testimony —
apparently constitute clear and convincing evidence. The majority
also holds that the state trial court’s unexplained omission of
findings “on evidence crucial to Guidry’s claim, where the
witnesses are apparently credible” brought into question whether
the state courts reached a reasonable decision “in light of the
evidence presented in the state court proceeding.” 28 U.S.C.
§ 2254(d)(2).
This is a close case on which reasonable federal judges
can differ in result. But the majority’s reasoning misses the
mark. Our evaluation under AEDPA is not of the quality of the
state courts’ reasoning process, but of the reasonableness of the
relevant factual determinations. If the state court’s findings
that Guidry did not express a desire to speak to his attorney and
that he was not misled by the detectives are unreasonable in light
of the attorneys’ testimony, then so be it, but the state courts’
failure to address the attorney testimony does not alone make the
findings unreasonable.
26
The panel majority state over and over that their
decision is fact-bound, and we hope it is regarded as such. The
decisive importance attached by the majority to the state courts’
sins of omission can hardly be reconciled with the precedent of
this court and the Supreme Court. Adhering to principles of
finality, comity and federalism, we have held that the presumption
of correctness applies to explicit factual findings, Valdez v.
Cockrell, 274 F.3d 941, 947 & n.11 (5th Cir. 2001), and “to those
unarticulated findings which are necessary to the state court’s
conclusions of mixed law and fact.” Pondexter, 346 F.3d at 148.
Under AEDPA, federal courts review only the state courts’ ultimate
decision, “not every jot of its reasoning.” Santellan v. Cockrell,
271 F.3d l90, l93-94 (5th Cir. 2001). The “parsing of the state
habeas court’s findings does not conform to the spirit or letter of
AEDPA’s [§ 2254(e)(1)] deferential standards.” Pondexter, 346 F.3d
at 142. Finally, the en banc court has held that “[i]t seems clear
to us that a federal habeas court is authorized by Section 2254(d)
to review only a state court’s decision, and not the written
opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230,
246 (5th Cir. 2002) (en banc).
Granting deference to state courts’ implicit and explicit
historical factfindings predates AEDPA, moreover, and is in fact a
bedrock principle of federal habeas jurisprudence. See, e.g.,
Marshall v. Lonberger, 459 U.S. 422, 433, 103 S. Ct. 843, 850
(1983) (Sixth Circuit’s reassessment of respondent’s state trial
27
court testimony was improper, whether undertaken because of state
court’s failure expressly to find credibility or out of federal
court’s desire to make a de novo review of the weight of the
evidence); Lavallee v. Delle Rose, 410 U.S. 690, 93 S. Ct. 1203
(l973) (because it was clear that the trial court would have
granted relief had it believed the defendant’s testimony, its
failure to do so was tantamount to an express finding against
credibility).
Viewed in light of this guiding precedent, the panel
majority’s result may be justifiable, but the majority countenances
an untenable district court procedure that unjustifiably undermines
the letter and spirit of AEDPA. It is unsurprising, then, that the
majority’s analytical reasoning is anomalous. We respectfully
dissent.
28