IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50375
Summary Calendar
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RAY LYNN GERALDON,
Petitioner-Appellant,
versus
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 94-CV-320
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January 10, 1996
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Ray Lynn Geraldon appeals from the district court's order
denying his petition for a writ of habeas corpus. He argues that
he received ineffective assistance of counsel at his state-court
trial.
We have reviewed the record and the district court's order
and find no reversible error regarding Geraldon's contentions
that counsel was ineffective because he failed to cross-examine a
witness about whether he had offered Geraldon an opportunity to
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
No. 95-50375
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take a blood test, because he failed to impeach a witnesses's
testimony that he had obtained information from Geraldon's
driver's license, and because he denied Geraldon the right to
appeal. Accordingly, the district court's judgment regarding
those claims is AFFIRMED.
Regarding Geraldon's other contentions, the rules governing
habeas corpus cases provide that the respondent carries the
burden of indicating what proceedings have been transcribed and
may be furnished and what proceedings have been recorded but not
transcribed. The respondent also carries the burden of providing
transcripts of proceedings that are relevant to the habeas
petition. The district court may order production or
transcription of any proceedings it deems relevant. RULES
GOVERNING SECTION 2254 CASES IN THE U.S. DISTRICT COURTS, Rule 5; see
Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).
Additionally, "[a] federal habeas court must hold an
evidentiary hearing if there are disputed facts and the
petitioner did not receive a full and fair hearing in a state
court, either at trial or in a collateral proceeding." Wiley v.
Puckett, 969 F.2d 86, 98 (5th Cir. 1992). However, "[i]f the
record is adequate to dispose of the claim, the federal court
need not hold an evidentiary hearing." Id.
Geraldon contends that counsel was ineffective for failing
to subpoena a videotape of his arrest and use it to impeach
testimony regarding his arrest and call into question the
accuracy of his sobriety test. It is conceivable that counsel
was ineffective for failing to use the videotape to impeach
No. 95-50375
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testimony about Geraldon's sobriety tests, if such a tape indeed
exists. If the videotape revealed that the test occurred under
unfavorable conditions and was conducted in cursory fashion, that
conceivably could call into doubt the results of the test. On
the record currently before this court, it is impossible to
determine whether the outcome of Geraldon's trial might have been
different had counsel been able to impeach the sobriety test.
Additionally, the record contains no evidence regarding counsel's
reasons for not using the videotape.
Geraldon also contends that counsel was ineffective for
failing to object to the prosecutor's reference during closing
arguments to a remark allegedly made by Geraldon that had been
excluded from evidence before trial, because the statement was
made before Geraldon was given his Miranda warnings. If the
prosecutor referred to evidence that had been excluded, then
Geraldon's right to a fair trial might have been violated. See
United States v. Neal, 27 F.3d 1035, 1051 (5th Cir.), cert.
denied, 115 S. Ct. 530 (1994), and cert. denied, 115 S. Ct. 1165
(1995). Counsel might have been ineffective for failing to
object to such a reference. This court cannot review Geraldon's
contention on the record currently before it.
Accordingly, we VACATE and REMAND the denial of Geraldon's
petition regarding his contentions that counsel was ineffective
because he failed to subpoena and use the alleged videotape and
because he failed to object to the prosecutor's alleged remark.
We direct the district court to order the transcription of the
statement of facts of Geraldon's trial, the closing arguments at
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the trial, if they are available for transcription, and any
suppression hearing in Geraldon's case. If transcripts are not
available, the district court should order the parties to produce
a narrative summary of those proceedings. See RULES GOVERNING
SECTION 2254 CASES IN THE U.S. DISTRICT COURTS, Rule 5. After
obtaining the transcript or narrative summary, the district court
should consider whether a hearing is necessary on Geraldon's
contentions.
AFFIRMED in part; VACATED and REMANDED in part.