REVISED, May 15, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-20023
_______________
SIDNEY ANDRE MCDONALD,
Plaintiff-Appellant,
VERSUS
GARY L. JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
May 11, 1998
Before GARWOOD, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Sidney McDonald appeals the denial of an evidentiary hearing
and dismissal of his petition for writ of habeas corpus. We
affirm.
I.
McDonald pleaded guilty in state court to delivery of cocaine.
Pursuant to a plea bargain, the state recommended fifteen years'
imprisonment. The court accepted McDonald's guilty plea and
sentenced him to the suggested term. No direct appeal was taken.
McDonald filed a habeas petition in state court, challenging
his conviction and sentence. He alleged, inter alia, ineffective
assistance of counsel, claiming that his trial counsel had failed
to inform him of his right to appeal.1 He was denied an
evidentiary hearing. The Texas Court of Criminal Appeals then
denied his application without a written order.
McDonald filed a second habeas petition in state court,
raising largely the same arguments. The state court denied his
claim as procedurally barred. It determined that “there are no
controverted, previously unresolved facts material to the legality
of the Applicant's confinement which require an evidentiary
hearing.” Accordingly, the court did not render specific factual
findings. The Texas Court of Criminal Appeals again denied
McDonald's application without a written order.
McDonald proceeded to federal court, seeking relief under
28 U.S.C. § 2254(d). The state moved for summary judgment,
introducing an affidavit from McDonald's court-appointed trial
counsel. In the affidavit, counsel stated that he had fully
informed McDonald that McDonald could not appeal without the trial
court's permission. The state attached court records suggesting
that the trial court also had warned McDonald of his conditional
1
See United States v. Gipson, 985 F.2d 212, 215 (5th Cir. 1993) (“If a
petitioner can prove that the ineffective assistance of counsel denied him the
right to appeal, then he need not further establishSSas a prerequisite to habeas
reliefSSthat he had some chance of success on appeal.”). As discussed below,
under Texas law, McDonald had only a conditional right to appeal; he needed the
trial court's permission to do so. Because the state does not contest that
McDonald's lawyer was required to inform him of this right, we assume arguendo
that McDonald has stated a claim for ineffective assistance of counsel.
2
right to appeal, although there is no transcript of the sentencing
proceedings.2
McDonald countered with an affidavit claiming that neither the
trial court nor his lawyer had explained to him his right to
appeal. He did not proffer any other evidence. The district court
denied his request for an evidentiary hearing and dismissed his
petition as frivolous pursuant to 28 U.S.C. § 1915(d), adding that
portions of his affidavit “border[ed] on perjury.” McDonald
appealed, and we granted a certificate of appealability on the
issue of whether counsel had advised him of his right to appeal.
II.
Denials of an evidentiary hearing are reviewed for abuse of
discretion. United States v. Cervantes, 132 F.3d 1106, 1110 (5th
Cir. 1998). We review dismissals pursuant to § 1915(d) under the
same standard. Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996).
A.
Because McDonald filed his federal habeas petition on May 7,
1996, his claims are governed by the Antiterrorism and Effective
2
Under TEX. CODE CRIM. P. Art. 26.13(a)(3), before accepting a guilty plea,
the trial court must inform the defendant of
the fact that if the punishment assessed does not exceed the
punishment recommended by the prosecutor and agreed to by the
defendant and his attorney, the trial court must give its permission
to the defendant before he may prosecute an appeal on any matter in
the case except for those matters raised by written motions filed
prior to trial . . . .
McDonald claims that the trial court also failed to inform him of his right to
appeal.
3
Death Penalty Act (“AEDPA”). Accordingly, his request for an
evidentiary hearing must be evaluated under 28 U.S.C. § 2254(e)(2),
which provides, in relevant part:
If the applicant has failed to develop the factual basis
of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows thatSS
(A) the claim relies onSS
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence . . . .
Because McDonald does not allege that his ineffective assistance
claim relies on a new rule of constitutional law or a hidden
factual predicate, he cannot secure an evidentiary hearing if he
failed to develop a factual basis for his claim in the state court
proceedings.
It is undisputed that no factual basis was developed in the
state courts; they found McDonald's claim procedurally barred and
thus did not hold an evidentiary hearing. The more difficult
question is whether, for purposes of § 2254(e)(2), McDonald
“failed” to develop the factual basis.
Two circuits have understood the phrase “failed to develop” in
§ 2254(e)(2) as requiring some sort of omission by the petitioner;
in other words, he cannot be deemed to have failed to develop a
factual basis for his claim if the basis was left undeveloped
through no fault of his own. In Love v. Morton, 112 F.3d 131 (3d
4
Cir. 1997), the court held that the petitioner could not be said to
have failed to develop the factual record when the trial judge's
abrupt declaration of a mistrial prevented him from doing so. The
court concluded that “factors other than the defendant's action
prevented a factual record from being developed,” and therefore the
petitioner was entitled to an evidentiary hearing. Id. at 136.
Similarly, in Burris v. Parke, 116 F.3d 256, 258 (7th Cir.),
cert. denied, 118 S. Ct. 462 (1997), the court remarked:
“'Failure' implies omissionSSa decision not to introduce evidence
when there was an opportunity, or a decision not to seek an
opportunity.” It concluded that “the word 'fail' cannot bear a
strict-liability reading under which a federal court would
disregard the reason for the shortcomings of the record.” Id. at
259.
Whether a petitioner who, without any default on his part, was
procedurally barred from developing a factual basis for his claim
can be said to have “failed” to do so is a question of first
impression in this circuit. We join the Third and Seventh Circuits
in concluding that, for purposes of 28 U.S.C. § 2254(e)(2), a
petitioner cannot be said to have “failed to develop” a factual
basis for his claim unless the undeveloped record is a result of
his own decision or omission. Accordingly, McDonald's claim is not
precluded under 28 U.S.C. § 2254(e)(2). If it were, “a state could
insulate its decisions from collateral attack in federal court by
refusing to grant evidentiary hearings in its own courts.” Burris,
116 F.3d at 259.
5
B.
This conclusion does not end the analysis, however, for even
if McDonald's claim is not precluded by § 2254(e)(2), that does not
mean he is entitled to an evidentiary hearingSSonly that he may be.
Consistent with AEDPA's goal of streamlining the habeas process,
§ 2254(e)(2) specifies the situations where evidentiary hearings
are allowed, not where they are required. Thus, if a petitioner
seeking a hearing clears this initial hurdle, he must still
persuade the district court. This subsequent determination is
committed to the district court's discretion pursuant to Rule 8 of
the Rules Governing § 2254 Cases. In determining whether an
evidentiary hearing is proper, the district court may expand the
record and consider affidavits, exhibits, or other materials that
cast light on the merits of the petition.
The district court did not hold an evidentiary hearing, but
considered McDonald's affidavit along with an affidavit from his
trial counsel, who stated that he had informed McDonald of his
conditional right to appeal. The court also considered the records
from McDonald's sentencing hearing, which indicated that the state
court had fulfilled its legal duty to inform McDonald of this right
before accepting his guilty plea.
We agree with the district court that an evidentiary hearing
was unnecessary under these circumstances. Given that the court
had before it affidavits from the two central partiesSSMcDonald and
his trial counselSSit is uncertain what additional evidence could
have been introduced. “[A] petitioner need not receive an
6
evidentiary hearing if it would not develop material facts relevant
to the constitutionality of his conviction.” Young v. Herring,
938 F.2d 543, 560 n.12 (5th Cir. 1991) (on remand).3 The district
court had sufficient facts before it to make an informed decision
on the merits of McDonald's claim and, accordingly, did not abuse
its discretion in refusing to hold an evidentiary hearing.
III.
The district court dismissed McDonald's petition under
28 U.S.C. § 1915(d). That section, now codified at 28 U.S.C.
§ 1915(e)(2)(B), permits the district court to dismiss the claim of
a petitioner proceeding in forma pauperis if the court determines
that the action is frivolous. A complaint is frivolous if it lacks
an arguable basis in law or fact. McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997).
The court did not abuse its discretion in finding that
McDonald's claim lacked an arguable basis in fact. The court
considered the affidavits of both sides as well as documents from
the sentencing proceeding, and noted the internal contradictions in
McDonald's affidavitSSraising the possibility of perjurySSand
observed the absence of supporting evidence other than the
petitioner's own self-serving allegations.
Specifically, the court considered the affidavit of McDonald's
3
See also Young, 938 F.2d at 560, quoting Blackledge v. Allison, 431 U.S.
63, 74 (1977): “A petitioner is not entitled to an evidentiary hearing . . . if
his claims are merely 'conclusory allegations unsupported by specifics' or
'contentions that in the face of the record are wholly incredible.'”
7
trial counsel stating that he had fully advised his client of his
limited right to appeal under Texas law. The court also considered
McDonald's own signed statement that he had fully discussed the
case with his attorney. Finally, the court considered the signed
declaration of the trial judge stating that, before accepting
McDonald's guilty plea, he too had advised McDonald of his right to
appeal. The court then concluded that McDonald had failed to
introduce evidence establishing an arguable factual basis for his
allegation that both his lawyer and the trial judge had failed to
inform him of his rights.
Given the district court's careful consideration of the
pleadings and the expanded record, we cannot say that it abused its
discretion in dismissing McDonald's claim under § 1915(d). The
judgment, accordingly, is AFFIRMED.
8