REVISED, June 28, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41557
NATHANIEL KEITH SINGLETON,
Petitioner- Appellant
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
June 22, 1999
Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges:
DUHÉ, Circuit Judge:
We granted a certificate of appealability (“COA”) to consider:
(1) whether there are any state-court findings regarding counsel’s
knowledge of the Petitioner’s desire to appeal which should be
afforded the presumption of correctness and (2) whether, if there
are no findings to which the presumption of correctness applies,
the district court should have conducted a de novo evidentiary
hearing. Concluding that there are no findings to which the
presumption of correctness applies, we remand for a de novo
evidentiary hearing.
BACKGROUND
Nathaniel Keith Singleton (“Petitioner”) pled guilty to
aggravated assault and was sentenced to eight years of deferred
adjudication. The State of Texas (the “State”) later moved to
revoke the Petitioner’s unadjudicated probation, arguing that he
had violated several conditions of his probation. The Petitioner
pled “true” to the motion to revoke and the trial court sentenced
him to ten years of imprisonment.
The Petitioner applied for writ of habeas corpus in state
court, arguing that counsel was ineffective in failing to file and
pursue a direct appeal of the revocation proceeding on his behalf.
In support of his petition, the Petitioner attached a copy of a
letter he received from his retained counsel for the probation
revocation proceedings, Robert Smith (“Smith”), in which Smith
opined that a direct appeal would not be successful but detailed
the steps for pursuing an appeal pro se. The Petitioner maintained
that the letter proved that Smith was aware of his desire to appeal
and yet did nothing.
Concluding that Smith’s letter demonstrated that the
Petitioner was properly advised of his appellate rights, the state
habeas trial court recommended that the Petitioner’s habeas
application be denied. The Texas Court of Criminal Appeals
determined that the trial court’s conclusion was not supported by
the record. It found that additional facts needed to be developed
concerning whether the Petitioner requested Smith to file an appeal
and, if so, whether Smith took any action in compliance with the
Petitioner’s wishes. The Court of Criminal appeals ordered the
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trial court to obtain an affidavit from Smith regarding those
issues.
On remand, the trial court obtained the requested affidavit,
which read in pertinent part:
My name is Robert Joseph Smith. I reside in the County
of Jefferson, State of Texas, and I came forth to make
the following statement: I provided Legal counsel and
representation to Nathaniel K. Singleton pursuant to a
Motion to Revoke Probation for offense of [sic]
Aggravated Assault. I deny that Nathaniel K. Singleton
requested me to pursue an appeal of his conviction for
the offense of aggravated assault. Mr. Singleton did
request that I look into issues related to the probation
revocation process. In addition, it should be noted that
at the time of his revocation sentencing, Mr. Singleton
was wholly in default of his legal fee payments. Which
may explain why Mr. Singleton asked me to detail for him
the steps of a pro se appeal versus asking me to pursue
his appeal.
The trial court found that the affidavit demonstrated that Smith
was aware of the Petitioner’s desire to appeal and, therefore, had
an obligation to request permission from the sentencing court to
appeal the case. The trial court determined that habeas relief
should be granted in part. The Court of Criminal Appeals
apparently disagreed and denied the habeas petition without written
order.
The Petitioner filed a second state habeas petition, arguing,
inter alia, that ineffective assistance of counsel rendered his
guilty plea involuntary. The state habeas trial court concluded
that the Petitioner’s ineffective assistance claim was procedurally
barred and the Court of Criminal Appeals denied the habeas
application without written order. In November 1996, the
Petitioner filed a habeas petition in federal district court,
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contending that his guilty plea was involuntary because he received
ineffective assistance of counsel. He alleged that Smith was
ineffective in failing to file a direct appeal despite his request
that Smith do so and in advising him to plead “true” to the charges
in the motion to revoke. Recommending that the Petitioner’s
application be denied, the magistrate judge found that the record
indicated that the Petitioner had not requested that Smith file an
appeal. The district court adopted the magistrate’s
recommendations over the Petitioner’s objection and denied habeas
relief.
The Petitioner appealed and requested a COA, which the
district court denied. The Petitioner then sought a COA in this
court, arguing that the state habeas trial court’s finding that
Smith was aware of the Petitioner’s desire to appeal is entitled to
a presumption of correctness because the Court of Criminal Appeals
did not issue independent findings of fact or indicate whether it
adopted or rejected the trial court’s findings. We granted COA on
the following issues: (1) whether there are any state-court
findings regarding Smith’s knowledge of the Petitioner’s desire to
appeal which should be afforded the presumption of correctness and
(2) whether, if there are no findings to which the presumption of
correctness applies, the district court should have conducted a de
novo evidentiary hearing.
DISCUSSION
28 U.S.C.A. § 2254(d) (West Supp. 1999) provides the standard
of review governing collateral federal review of state-court
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convictions as follows:
An application for writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of,
clearly established federal law, as determined
by the Supreme Court of the United States; or
(2) 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.
The Petitioner argues that the standard of review in § 2254(d)
does not apply to his habeas petition because the state trial court
was the only state-court adjudication on the merits, and its
decision was not adverse to him. We disagree. Where, as here,
there is no clear state decision, we determine, on a case by case
basis, whether the adjudication was on the merits. See Preston v.
Maggio, 705 F.2d 113, 116 (5th Cir. 1983). We consider three
factors in making that determination: (1) what the state courts
have done in similar cases; (2) whether the history of the case
suggests that the state court was aware of any ground for not
adjudicating the case on the merits; and (3) whether the state
courts’ opinions suggest reliance upon procedural grounds rather
than a determination on the merits. See id. In the case at bar,
the first factor suggests an adjudication on the merits. In Texas
writ jurisprudence, usually a denial of relief rather than a
“dismissal” of the claim by the Court of Criminal Appeals disposes
of the merits of a claim. See Jackson v. Johnson, 150 F.3d 520,
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524 (5th Cir. 1998); Ex Parte Torres, 943 S.W.2d 469, 472
(Tex.Crim.App. 1997). The second factor also indicates an
adjudication on the merits because the State did not raise any
procedural grounds for denying relief on the Petitioner’s
ineffective assistance claim. The third factor is inconclusive in
this case. Although the state trial court dealt favorably with the
Petitioner’s claim on the merits, the Court of Criminal appeals
silently denied relief. Based on the first and second factors, we
conclude that the Court of Criminal Appeals’ denial of relief
constituted an adjudication on the merits.
I. Presumption of Correctness
The Petitioner maintains that the state trial court’s finding
that counsel was aware of his desire to appeal should be afforded
a presumption of correctness. This argument is meritless. We
rejected a similar argument in Micheaux v. Collins, 944 F.2d 231,
232 (5th Cir. 1991) (en banc). In its proposed findings, the
Micheaux state habeas trial court found that if the petitioner had
been informed of a fifteen year minimum sentence, he would not have
pled guilty and would have insisted on going to trial. See id.
The Texas Court of Criminal Appeals denied the petitioner’s habeas
petition without written order, however.1 In his federal habeas
petition, the petitioner argued that we were bound to accept the
state habeas trial court’s proposed findings. Rejecting the
petitioner’s argument we stated:
Not only were the “proposed findings” not adopted nor
1
See Micheaux v. Collins, 911 F.2d 1083, 1085 (5th Cir. 1990).
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incorporated in the action of the Texas Court of Criminal
Appeals, they are directly inconsistent with that court’s
peremptory denial of relief. We conclude that those
proposed findings did not survive scrutiny by the Texas
Court of Criminal Appeals, the final decisionmaker in
Texas habeas cases.
Id. For the same reasons, we conclude that the state trial court’s
findings did not survive the Court of Criminal Appeals’ denial of
relief.
II. De Novo Evidentiary Hearing
Alternatively, the Petitioner argues that if there are no
findings to which the presumption of correctness applies, the
district court should have conducted a de novo evidentiary hearing.
We agree. The Petitioner is entitled to a full and fair
evidentiary hearing on the issue of whether his attorney was aware
of the Petitioner’s desire to file an appeal and, therefore, had an
obligation to do so. See Goodwin v. Johnson, 132 F.3d 162, 182
(5th Cir. 1998) (concluding that the petitioner was entitled to an
evidentiary hearing because the state did not afford him a full and
fair evidentiary hearing on a disputed factual issue). “There
cannot even be the semblance of a full and fair hearing unless the
state court actually reached and decided the issues of fact
tendered by the defendant.” Id. (citations omitted). Noting that
the habeas trial court’s proposed findings did not survive the
Court of Criminal Appeals’ denial, we stated in Micheaux that “[i]n
these circumstances, it was proper for the federal court to conduct
a hearing de novo on the voluntariness of [the petitioner’s] guilty
plea.” Micheaux, 944 F.2d at 232. In Micheaux, we reversed the
district court’s initial denial of the petitioner’s habeas petition
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and remanded for an evidentiary hearing. See Micheaux v. Collins,
911 F.2d 1083, 1085 (5th Cir. 1990).
CONCLUSION
Remanded for a de novo evidentiary hearing.
REMANDED.
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