Reed v. Scott

United States Court of Appeals,

Fifth Circuit.

No. 95-10078.

Ronald P. REED, Petitioner-Appellant,

v.

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

Dec. 18, 1995.

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

Before POLITZ, Chief Judge, and HILL* and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

Ronald P. Reed appeals the denial of his petition for the writ

of habeas corpus. For the reasons assigned we reverse and remand.

BACKGROUND

In 1986 Ronald P. Reed was convicted in Texas state court of

aggravated sexual assault and sentenced to life in prison. Reed's

conviction was affirmed on direct appeal.1 In affirming his

conviction the court of appeals declined to reach the merits of his

Batson2 claim because Reed failed to provide a complete transcript

of the voir dire examination.3 The court of appeals based its

*
Circuit Judge for the Eleventh Circuit, sitting by
designation.
1
Reed v. State, 751 S.W.2d 607 (Tex.App.—Dallas 1988, no
pet.).
2
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986).
3
Reed.

1
conclusion on the "well settled [rule] that complaints as to voir

dire error cannot be reviewed in the absence of a transcription of

the complete voir dire examination."4 A complete transcription of

the voir dire examination does not exist because Reed's counsel

informed the trial court that he did not desire the court reporter

to make such a record.5 The questioning of some panel members,

however, was recorded and there is a transcript of the Batson

hearing.

Reed did not file a petition for discretionary review by the

Court of Criminal Appeals but, rather, filed a state petition for

the writ of habeas corpus in accordance with Tex.Code

Crim.Proc.Ann. art. 11.07, alleging the Batson claim. The Court of

Criminal Appeals denied the petition without written order. Having

fully exhausted his state remedies, Reed filed the instant petition

4
Id. at 610.
5
Tex.Code Crim.Proc.Ann. art. 40.09, § 4 (West 1979)
(repealed) states, in relevant part, "[a]t the request of either
party the court reporter shall take short-hand notes of all trial
proceedings, including voir dire examination...." This provision
of the Texas Code of Criminal Procedure has been repealed and
replaced, effective September 1, 1986, by Tex.R.App.Proc. 50.
Emery v. State, 800 S.W.2d 530 (Tex.Cr.App.1990) (en banc).
Nevertheless it applies to the defendant's obligation to request
the court reporter to take short-hand notes of voir dire because
the trial was completed before the effective date of
Tex.R.App.Proc. 50. Id. However, Tex.R.App.Proc. 50(d), which
states "[t]he burden is on the appellant ... to see that a
sufficient record is presented to show error requiring reversal,"
applies to the filing of the statement of facts, which were filed
on September 12, 1986, and the transcript, which was filed on
October 20, 1986. Id. at 531 & n. 2 (internal quotations
omitted) ("[A]ppellate procedures and steps completed or required
to have been completed on or after September 1, 1986, shall be
governed by the procedural requirements of the Texas Rules of
Appellate Procedures in criminal cases, regardless of when notice
of appeal was given.").

2
for the writ of habeas corpus advancing the Batson claim. The

petition was referred to a magistrate judge who issued a report and

recommendation concluding that the petition should be denied

because Reed procedurally defaulted on the Batson claim. The

district court adopted the report and recommendation and denied the

petition. Reed filed a motion for CPC which we granted.

ANALYSIS

A federal court will not review a question of federal law

decided by a state court if its decision rests on a state ground,

either substantive or procedural, that is independent of the merits

of the federal claim and is adequate to support the judgment.6 A

state ground is "independent" if the last reasoned state court

opinion7 clearly and expressly indicates that its judgment is

independent of federal law.8 A state procedural rule is adequate

only if it was firmly established at the time it was applied.9

Moreover, it must be "strictly or regularly followed by the

cognizant state court ... [and] strictly or regularly applied

evenhandedly to the vast majority of similar claims."10

The issue presented in this case is whether the state

procedural rule relied on by the court of appeals in Reed is

6
Amos v. Scott, 61 F.3d 333 (5th Cir.1995).
7
Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115
L.Ed.2d 706 (1991).
8
Amos.
9
Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d
935 (1991).
10
Amos, 61 F.3d at 339 (emphasis in original).

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adequate.11 This is a question of law that we review de novo.12

Respondent maintains that Texas courts regularly refuse to reach

alleged voir dire errors where the defendant fails to provide a

complete voir dire transcript. Respondent cites four Court of

Criminal Appeals cases to support his position.13 In each of these

cases, the Court of Criminal Appeals held that the appellant's

argument concerning voir dire error must fail because he did not

supply a complete transcript of voir dire. A close examination of

these cases, as well as Payton v. State,14 reveals that Texas law

precludes review of an alleged voir dire error if the defendant

fails to provide a sufficient record from which the court may

discern such error rather than absolutely precluding review of an

alleged voir dire error absent a complete transcription of the voir

11
The court of appeals in Reed clearly and expressly
indicated that its judgment is independent of federal law. See
Reed.
12
Amos.
13
See e.g., Burkett v. State, 516 S.W.2d 147
(Tex.Crim.App.1974) (restriction of voir dire questioning
unreviewable absent entire record of voir dire); Graves v.
State, 513 S.W.2d 57 (Tex.Crim.App.1974) (prosecutor's improper
remarks unreviewable absent entire voir dire record); Magee v.
State, 504 S.W.2d 849 (Tex.Crim.App.1974) (court cannot determine
whether a juror improperly concealed bias in absence of complete
record of voir dire); Guerrero v. State, 487 S.W.2d 729
(Tex.Crim.App.1972) (whether court erred by refusing to excuse
members of venire for bias may not be determined without complete
voir dire transcript).
14
572 S.W.2d 677 (Tex.Crim.App.1978). In Payton, the court
stated "when the issue concerns denial of a challenge for cause
or exclusion of a qualified venireman, only the examination of
the individual venireman need be in the record." Id. at 680.
The court also distinguished Burkett and other cases which
require a complete voir dire transcript to reach an alleged voir
dire error. Id.

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dire examination.15

The cases relied upon by respondent do not control the

resolution of this matter because we must focus on the application

of the bar in the context of a Batson claim. This narrow focus is

mandated by the claim specific nature of the procedural bar and our

statement in Amos that in order to determine the adequacy of a

procedural bar we must emphasize the application of the bar to the

specific constitutional claim at issue.16

Reed is the first reported decision in which a Texas appellate

court refused to reach a Batson claim because the defendant failed

to provide a complete voir dire transcript. As such, the court of

appeals' refusal to reach Reed's Batson claim due to his failure to

provide a complete voir dire transcript "does not even remotely

satisfy the requirement ... that an adequate and independent state

procedural bar to the entertainment of constitutional claims must

have been "firmly established and regularly followed' by the time"

15
See Tex.R.App.Proc. 50(d) (appellant must provide a
sufficient record from which to discern error); see also
Tex.Code Crim.Proc.Ann. art 40.09 (West 1979) (repealed).
Despite its broad statement concerning the "well settled rule"
that a court may not reach a voir dire error without a complete
voir dire transcript, the court in Reed implicitly recognized the
claim specific nature of the procedural bar by reaching the
merits of Reed's point of error concerning a challenge for cause
despite the lack of a complete transcription of voir dire.
16
Amos. See also Andrews v. Deland, 943 F.2d 1162, 1190
(10th Cir.1991) ("The test ... is whether the [state] courts'
actual application of the procedural default rule to all similar
claims has been evenhanded in the vast majority of cases."),
cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451
(1992); Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103
L.Ed.2d 435 (1989) (concluding that state court faithfully
applied its procedural bar to vast majority of cases raising same
type of constitutional claim).

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it was applied.17 Moreover, the authority cited by the respondent

indicating that Reed's application of the procedural bar has been

followed by other courts of appeal18 is inapposite because the

subsequent application of a bar does not support the conclusion

that it was firmly established at the time Reed was decided.

The judgment appealed is REVERSED and the matter is REMANDED

for further proceedings consistent herewith.

17
Ford, 498 U.S. at 424, 111 S.Ct. at 857-58.
18
Only one reported decision, Guilder v. State, 794 S.W.2d
765 (Tex.App.—Dallas 1990, no pet.), similarly refuses to reach a
Batson claim in the absence of a complete voir dire transcript.
Several unpublished opinions (which have no precedential value)
have applied this bar. See e.g., Sturkie v. State, 1995 WL
496619 (Tex.App.—Houston [1st Dist.] 1995, no pet.); Smith v.
State, 1995 WL 26805 (Tex.App.—Dallas 1995, pet. ref'd); Black
v. State, 1993 WL 95856 (Tex.App.—Dallas 1993, no pet.); Jones
v. State, 1992 WL 296934 (Tex.App.—Houston [14th Dist.] 1992, no
pet.); Brown v. State, 1992 WL 76538 (Tex.App.—Dallas 1992),
aff'd on other grounds, 856 S.W.2d 177 (1993); Taylor v. State,
1991 WL 284473 (Tex.App.—Dallas 1991, no pet.); Wyatt v. State,
1991 WL 134602 (Tex.App.—Dallas 1991, no pet.). Texas courts
have not been universal in refusing to reach a Batson claim in
the absence of a complete transcript. In Allen v. State, 753
S.W.2d 792 (Tex.App.—Beaumont 1988, no pet.), a Texas appeals
court decided the merits of the defendant's Batson claim after
noting the lack of a complete transcript. Similarly in Gator v.
State, 1992 WL 33163 (Tex.App.—Dallas 1992, pet. ref'd), an
unpublished case, a Texas appeals court decided the merits of the
defendant's Batson claim despite the his failure to provide a
complete transcript of voir dire.

6