Sherman v. Scott

United States Court of Appeals,

Fifth Circuit.

No. 94-20907.

Sandy E. SHERMAN, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

Aug. 30, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before KING, HIGGINBOTHAM and PARKER, Circuit Judges.

KING, Circuit Judge:

Sandy Sherman was convicted in Texas state court for delivery

of a controlled substance and was sentenced to sixty years of

imprisonment. After the Texas Court of Appeals affirmed his

conviction, Sherman did not seek review in the Texas Court of

Criminal Appeals. Instead, Sherman filed a state application for

habeas relief which was denied by the Texas Court of Criminal

Appeals. Sherman then sought habeas relief in federal district

court, but the district court dismissed his petition with

prejudice. Sherman filed a notice of appeal and sought a

certificate of probable cause and appointment of counsel. The

district court denied Sherman's request for counsel and granted a

CPC on only one issue. Sherman, proceeding pro se, now appeals,

arguing, inter alia, that this court has jurisdiction over all of

his claims because a CPC may not be limited to a single issue.

While we agree that the issuance of a CPC on any issue gives us

1
jurisdiction over the appeal from the entire judgment entered by

the district court, we nevertheless find that Sherman's claims are

without merit, and we affirm the district court's dismissal of his

petition.

I. BACKGROUND

In his federal habeas petition, Sherman argued that: (1)

insufficient evidence to sustain his conviction was presented; (2)

testimony from a chemist whom he was not allowed to cross-examine

was admitted in violation of the confrontation clause; (3) a

photocopy of money used in the drug transaction was improperly

admitted into evidence; and (4) effective assistance of counsel at

trial and on appeal was denied. The respondent moved for summary

judgment. The district court, after carefully and thoroughly

examining Sherman's claims, found that Sherman "ha[d] failed to

demonstrate that Texas is holding him in custody in violation of

the Constitution or a law or treaty of the United States" and

granted the respondent's motion for summary judgment. Accordingly,

the district court entered a final judgment, dismissing Sherman's

petition with prejudice.

Sherman then filed a notice of appeal along with an

application for a CPC. The district court determined that only

Sherman's claim "concerning the admission of a laboratory tests

report without the testimony of the police chemists who performed

the tests" merited further review. Thus, the district court

granted Sherman's motion "to the extent that it seeks a certificate

of probable cause to appeal [the district] court's conclusion that

2
Sherman's conviction was obtained at the expense of his right to

confront the chemists who performed the tests identifying a

controlled substance."

Sherman appeals, reasserting the constitutional claims he

raised in the district court. Additionally, Sherman contends that

his right to appeal was impinged because the district court limited

its grant of the CPC to one issue.

II. DISCUSSION

A. Scope of the CPC

The law governing habeas procedure provides that:

An appeal may not be taken to the court of appeals from the
final order in a habeas corpus proceeding where the detention
arises out of the process issued by a State court, unless the
justice or judge who rendered the order or a circuit justice
or judge issues a certificate of probable cause.

28 U.S.C. § 2253; see also Drew v. Scott, 28 F.3d 460, 462 (5th

Cir.) (noting that "[w]e have no jurisdiction to address the merits

of [an] appeal from the district court's denial of habeas relief

unless we grant a CPC"), cert. denied, --- U.S. ----, 115 S.Ct. 5,

129 L.Ed.2d 906 (1994). Additionally, the Supreme Court has noted

that a CPC "requires [a] petitioner to make a substantial showing

of the denial of [a] federal right." Barefoot v. Estelle, 463 U.S.

880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal

quotation omitted) (alteration in original); accord Jacobs v.

Scott, 31 F.3d 1319, 1323 (5th Cir.1994), cert. denied, --- U.S. --

--, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995). That is, a petitioner

"must demonstrate that the issues are debatable among jurists of

reason; that a court could resolve the issues [in a different

3
manner]; or that the questions are adequate to deserve

encouragement to proceed further." Barefoot, 463 U.S. at 893 n. 4,

103 S.Ct. at 3394 n. 4 (citations omitted) (internal quotations

omitted); accord Jacobs, 31 F.3d at 1323.

In the instant case, the district court granted a CPC on only

one issue, apparently in an attempt to preclude Sherman from

raising his other claims in this appeal. While the effort of the

district court to highlight the only issue that it considered

debatable is laudable, the partial grant of CPC was improper to the

extent that it was designed to limit the jurisdiction of this court

to that issue. The language of § 2253 gives courts of appeal

jurisdiction over "the final order in a habeas corpus proceeding"

after a CPC is granted. 28 U.S.C. § 2253 (emphasis added). Yet,

as the majority of circuit courts addressing this issue have noted,

"[n]othing in the language or legislative history of 28 U.S.C. §

2253 suggests that Congress intended this provision to permit a

judge to limit the issues on appeal." Van Pilon v. Reed, 799 F.2d

1332, 1335 (9th Cir.1986); accord Smith v. Chrans, 836 F.2d 1076,

1079 (7th Cir.1988); Houston v. Mintzes, 722 F.2d 290, 293 (6th

Cir.1983); United States ex rel. Hickey v. Jeffes, 571 F.2d 762,

765-66 (3d Cir.1978).1

1
The Second Circuit alone has reached a different conclusion
and allows a CPC to limit the issues to be heard on appeal. That
court found that the "absence of explicit authority in § 2253
[was not] dispositive." Vicaretti v. Henderson, 645 F.2d 100,
101 (2d Cir.1980), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70
L.Ed.2d 171 (1981). Accordingly, the court allowed a limitation
of CPCs, but also allowed a panel "to broaden the scope of the
appeal if persuaded that such further consideration would be just
under the circumstances." id. at 102; accord Barber v. Scully,

4
 A construction of § 2253 that permitted a CPC that was limited

to certain issues to limit the jurisdiction of the court of appeals

to those issues is "[in]consistent with the general rule that

appeals lie from final judgments or orders, not from determinations

of legal issues." Van Pilon, 799 F.2d at 1335; accord Smith, 836

F.2d at 1079; Hickey, 571 F.2d at 765; see also Houston, 722 F.2d

at 293 (rejecting limited CPCs and noting that petitioners "appeal[

] not from issues decided by the district court, but from the final

order[s] of the district court").

Additionally, "the purpose of requiring the petitioner to

obtain a certificate of probable cause is to screen frivolous

appeals." Smith, 836 F.2d at 1079. The instant case demonstrates

that "[t]o the extent that limited certificates of probable cause

represent an effort to eliminate frivolous issues from

consideration on appeal, they have little practical effect." Van

Pilon, 799 F.2d at 1336; accord Smith, 836 F.2d at 1079-80

(discussing Van Pilon ). As the Van Pilon and Smith courts

recognized:

Because we construe a habeas petitioner's notice of appeal as
an application for a certificate of probable cause, those
petitioners who are issued limited certificates will
nevertheless obtain further consideration of the entire
petition by this court. It appears likely that petitioners
will also continue to argue the merits of excluded claims in
the appeal for which a certificate was granted in the hopes of
having those claims considered.

Smith, 836 F.2d at 1079-80; accord Van Pilon, 799 F.2d at 1336.

Finally, these courts' construction of the rule is

731 F.2d 1073, 1075 (2d Cir.1984).

5
jurisprudentially sound, because allowing limited CPCs would allow

"a single district judge, a single circuit judge, or even a panel

of the Court of Appeals to prescribe the issues which another panel

may consider in support of, or in opposition to, a judgment."

Hickey, 571 F.2d at 766; accord Houston, 722 F.2d at 293. Such a

rule might lead to a situation where:

the application of a settled principle of constitutional law
would justify the reversal of a denial of habeas corpus
relief, but the pro se applicant in applying for a certificate
of probable cause did not articulate the settled ground with
sufficient clarity. If a limited certificate could preclude
consideration of the settled ground, it could force a panel of
necessity to decide a novel or unsettled issue of
constitutional law unnecessary.

Hickey, 571 F.2d at 766; see also Houston, 722 F.2d at 293 (noting

this potential problem).

Accordingly, as the Third, Sixth, Seventh, and Ninth Circuits

have held, a grant of CPC gives this court jurisdiction over the

entire judgment entered by the district court disposing of all the

claims asserted by the petitioner in the district court. We are,

however, benefitted when district courts identify, as the district

court has done here, those issues (if any) that they consider

"debatable among jurists of reason."

B. Confrontation Clause Issues

Sherman contends that his Confrontation Clause rights were

violated because a drug analysis report was admitted through the

testimony of a laboratory supervisor instead of through the

testimony of the chemists who prepared the report. We disagree.

The Confrontation Clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right ... to be

6
confronted with the witnesses against him." U.S. Const., amend.

VI. The Supreme Court has noted that:

[T]he Clause envisions a personal examination and
cross-examination of the witness in which the accused has an
opportunity, not only of testing the recollection and sifting
the conscience of the witness, but of compelling him to stand
face to face with the jury in order that they may look at him
and judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of belief.

Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 65

L.Ed.2d 597 (1980) (internal quotation omitted). The Court,

however, has also noted that "competing interests, if closely

examined, may warrant dispensing with confrontation at trial." Id.

(internal quotation omitted) (citation omitted). Accordingly, the

Court repeatedly has found that "[w]hile a literal interpretation

of the Confrontation Clause could bar the use of any out-of-court

statements when the declarant is unavailable ... that view [is]

unintended and too extreme." Idaho v. Wright, 497 U.S. 805, 814,

110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990) (internal quotation

omitted). Thus, there can be little doubt that "the

[Confrontation] Clause does not necessarily prohibit the admission

of hearsay statements against a criminal defendant, even though the

admission of such statements might be thought to violate the

literal terms of the Clause." Id. at 813, 110 S.Ct. at 3145.

In interpreting the relationship between the Confrontation

Clause and the hearsay rules, the Supreme Court has instructed

that:

when a hearsay declarant is not present for cross-examination
at trial, the Confrontation Clause normally requires a showing
that he is unavailable. Even then, his statement is
admissible only if it bears adequate "indicia of reliability."

7
 Reliability can be inferred without more in a case where the
evidence falls within a firmly rooted hearsay exception. In
other cases, the evidence must be excluded, at least absent a
showing of particularized guarantees of trustworthiness.

Roberts, 448 U.S. at 66, 110 S.Ct. at 2539. In Roberts, the Court

noted that "[a] demonstration of unavailability ... is not always

required," id. at 65 n. 7, 110 S.Ct. at 2538 n. 7, and the Court

later clarified that "Roberts stands for the proposition that

unavailability analysis is a necessary part of the Confrontation

Clause inquiry only when the challenged out-of-court statements

were made in the course of a prior judicial proceeding." White v.

Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 741, 116 L.Ed.2d 848

(1992).

Thus, when determining whether an out-of-court statement

admitted in a criminal trial violates the Confrontation Clause, we

must examine whether the evidence contains particularized

guarantees of trustworthiness. As the Supreme Court has stated,

these "particularized guarantees of trustworthiness required for

admission under the Confrontation Clause must ... be drawn from the

totality of circumstances that surround the making of the statement

and that render the declarant particularly worthy of belief."

Wright, 497 U.S. at 820, 110 S.Ct. at 3149 (internal quotation

omitted). Further, Roberts and other cases make clear that

"statements admitted under a firmly rooted hearsay exception are so

trustworthy that adversarial testing would add little to their

reliability." Id. at 821, 110 S.Ct. at 3149 (internal quotation

omitted). As to these other statements, the Supreme Court teaches

that "evidence possessing particularized guarantees of

8
trustworthiness must be at least as reliable as evidence admitted

under a firmly rooted hearsay exception ... [and] must similarly be

so trustworthy that adversarial testing would add little to its

reliability." Finally, "[i]f the declarant's truthfulness is so

clear from the surrounding circumstances that the test of

cross-examination would be of marginal utility, then the hearsay

rule [and the Confrontation Clause] do[ ] not bar admission of the

statement at trial." Id. at 820, 110 S.Ct. at 3149.2

In applying this rule to laboratory reports, other circuit

courts have determined that such reports contain the particularized

guarantees of trustworthiness to keep them from violating a

defendant's rights under the Confrontation Clause. See Minner v.

Kerby, 30 F.3d 1311 (10th Cir.1994); United States v. Baker, 855

F.2d 1353, 1360 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109

S.Ct. 2072, 104 L.Ed.2d 636 (1989); Reardon v. Manson, 806 F.2d 39

(2d.Cir.1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95

L.Ed.2d 509 (1987). In Baker, on a direct appeal, the Eighth

Circuit determined that "[w]hen made on a routine basis, laboratory

analyses of controlled substances are admissible as business

records under Federal Rule of Evidence 803(6)."3 Baker, 855 F.2d

2
The Supreme Court also made clear that the indicia of
reliability cannot come from corroboration with other evidence at
trial, noting that "[t]o be admissible under the Confrontation
Clause, hearsay evidence used to convict a defendant must possess
indicia of reliability by virtue of its inherent trustworthiness,
not by reference to other evidence at trial." Wright, 497 U.S.
at 822, 110 S.Ct. at 3150.
3
The Federal Rules of Evidence provide that certain evidence
is "not excluded by the hearsay rule even though the declarant is
unavailable as a witness." Fed.R.Evid. 803. Included among such

9
at 1359. Because the reports were admitted as a business record,

the Eighth Circuit found that "the district court acted under a

firmly rooted exception" to the hearsay rule and therefore did not

violate the Confrontation Clause. Id. at 1360.

In Minner, a habeas petitioner claimed that the admission of

a police chemist's notes through the testimony of the chemist's

supervisor violated the Confrontation Clause. The Minner court

rejected this claim, finding that the notes had "sufficient

particularized indicia of reliability" to satisfy the Clause. The

court found the notes reliable because they "concern[ed]

mechanically objective tests and were taken contemporaneously with

the performance of the tests." Minner, 30 F.3d at 1314-15. The

court also found the police chemist's notes trustworthy because the

supervisor checked the computations of the chemist, and the results

were verified by tests conducted by a second chemist. Id. at 1314-

15. Additionally, the court noted that the supervisor "testified

as to standard lab procedures and testified that [the chemist's]

notes indicat[ed] that he followed those procedures in testing the

evidence is:

A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or
diagnoses, made at or near the time by ... a person
with knowledge, if kept in the course of a regularly
conducted business activity, and if it was the regular
practice of that business activity to make the
memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other
qualified witness, unless the source of the information
or the method or circumstances of preparation indicate
lack of trustworthiness.

Fed.R.Evid. 803(6).

10
substance at issue." Id. Consequently, the Minner court concluded

that "[t]he admission of [the chemist's] laboratory notes into

evidence was proper under the Confrontation Clause." Id.

Finally, in Reardon, the Second Circuit found that a chemist's

report admitted through the testimony of a supervisor did not

violate the Confrontation Clause. Reardon, 806 F.2d at 41. Noting

that the chemists who prepared the report analyzed thousands of

compounds each year and were not likely to independently remember

any particular test, the court concluded that "there would have

been little potential utility in requiring the State to produce the

... chemists for cross-examination." Id. Accordingly, the Reardon

court found that the evidence possessed sufficient indicia of

reliability and did not offend the Confrontation Clause.

This court has not had occasion to address whether a

laboratory report admitted through testimony by someone other than

the individual who prepared that report violates the Confrontation

Clause. Although in the present case the lab report was admitted

as a business record, without objection, we need not address

whether such reports qualify for a recognized exception to the

hearsay rule4 because we find that the report in question had the

4
Rule 803's exceptions to the hearsay rule state that
certain public records are not excluded even though the declarant
is unavailable. Specifically the Rule allows admission of:

"Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting forth
(A) the activity of the office or agency, or (B)
matters observed pursuant to a duty imposed by law as
to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police
officers and other law enforcement personnel...."

11
"particularized guarantees of trustworthiness" required by the

Confrontation Clause.

Specifically, the laboratory analysis in the instant case was

admitted through the testimony of the supervisor of the two

chemists who prepared the report. The supervisor testified about

his own qualifications and experience as well as the qualifications

and experience of the two chemists who performed the tests.

Additionally, the supervisor recounted the standard analytical

procedures used to determine the composition of unknown substances.

Finally, the supervisor testified that the report indicated that

the chemists reached their results after performing these tests and

following standard testing procedures. There seems little question

that these routine procedures, performed and recorded also under

standard laboratory procedures, were trustworthy. See Minner, 30

F.3d at 1314-15; Reardon, 806 F.2d at 41; cf. United States v.

McCormick, 54 F.3d 214, 223-224 (5th Cir.1995) (noting, in the

context of a parole revocation hearing, that laboratory report,

Fed.R.Evid. 803(8) (emphasis added). Additionally the Rule
provides that:

A statement not specifically covered by any of the ...
exceptions but having equivalent guarantees of
trustworthiness, [are admissible even if the declarant
is unavailable], if the court determines that (A) the
statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for
which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and
(C) the general purposes of the[ ] rules and the
interests of justice will be served by admission of the
statement into evidence.

Fed.R.Evid. 803(24).

12
although "not so inherently reliable to be automatically admissible

in any revocation hearing," was shown by the chain of custody,

step-by-step testing processes, and quality control procedures to

be reliable).

Furthermore, like the majority of other circuits that have

addressed this issue, we fail to see what benefit Sherman would

have gained by cross-examining the chemists who prepared the

report. As several courts have echoed, "production of the chemist

who performed the test "rarely leads to any admissions helpful to

the party.' " Reardon, 806 F.2d at 42 (quoting United States v.

Bell, 785 F.2d 640, 643 (8th Cir.1986)); accord Minner, 30 F.3d at

1315; cf. McCormick, 54 F.3d at 224 (in parole revocation case,

commenting that "[w]e cannot fathom what additional, enlightening

information the district court could have gleaned had [the parolee]

been permitted to cross-examine the laboratory technicians").

Because the testimony of the supervisor demonstrated that the

report had particularized guarantees of trustworthiness and because

cross-examination of the chemists who prepared the report would

have been of little use to Sherman, we find that the admission of

the report did not violate the Confrontation Clause.5 See Wright,

5
The Second Circuit's decision in United States v. Oates,
560 F.2d 45 (2d Cir.1977), concerned the admissibility of a
laboratory report under the Federal Rules of Evidence, an issue
that we do not reach in this case. Our conclusion is based on
Confrontation Clause analysis set out by the Supreme Court; that
is, the particularized guarantees of trustworthiness found in the
report and the fact that cross-examination of the chemists would
have been of little utility. See Reardon, 806 F.2d at 42 ("Oates
was not decided on constitutional grounds but on an
interpretation of the Federal Rules of Evidence....").

13
497 U.S. at 820, 110 S.Ct. at 3149 ("If the declarant's

truthfulness is so clear from the surrounding circumstances that

the test of cross-examination would be of marginal utility, then

the hearsay rule [and the Confrontation Clause] do[ ] not bar

admission of the statement at trial.").6

6
We are further persuaded that habeas relief is not proper
on this issue because even if the laboratory report lacked the
"particularized guarantees if trustworthiness" required by the
Constitution, any error stemming from admission of the report was
harmless. We have stated that "[t]he erroneous admission of
prejudicial testimony justifies habeas corpus relief only when it
is material in the sense of [being a] crucial, critical, highly
significant factor." Andrade v. McCotter, 805 F.2d 1190, 1193
(5th Cir.1986) (internal quotations omitted) (second alteration
in original); see also Delaware v. Van Arsdall, 475 U.S. 673,
679-84, 106 S.Ct. 1431, 1435-38, 89 L.Ed.2d 674 (1986) (noting
that "Confrontation Clause errors [are] subject to ... harmless
error analysis"). Additionally, the Supreme Court has stated
that:

Whether such an [evidentiary] error is harmless in a
particular case depends upon a host of factors, all
readily accessible to reviewing courts. These factors
include the importance of the witness'[s] testimony in
the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of
cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution's case.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; accord
Cupit v. Whitley, 28 F.3d 532, 536-47 (5th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 1128, 130 L.Ed.2d 1091
(1995); Johnson v. Blackburn, 778 F.2d 1044, 1051 (5th
Cir.1985).

In the instant case, the laboratory report was not the
only evidence that the material in question was cocaine. An
undercover police officer testified that he purchased a
substance that all parties to the transaction treated as
cocaine. Additionally, that officer testified that a field
test of the substance also indicated that it contained
cocaine. Accordingly, because the evidence of the
laboratory report was cumulative, it was not material in the
sense of being a crucial, critical, highly significant

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C. Other Claims

Sherman makes several additional claims, all of which we have

considered and find to be without merit.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district's denial of

Sherman's application for habeas relief.

factor; thus, even if the admission of the laboratory
report had violated the Confrontation Clause, which it did
not, it would not warrant habeas relief.

15