Guidry v. Dretke

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.

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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

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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).

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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.

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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.

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 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

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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.

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