IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-40722
__________________________
COREY BURRELL BROWN,
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
______________________________________________________
August 21, 2000
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant Corey Brown appeals the district court’s
denial of his petition for habeas relief. We affirm the district
court’s judgment with respect to the dismissal of Brown’s first,
second, fifth and sixth federal claims. Concluding that the
district court erred in dismissing the remaining three of Brown’s
claims without first conducting an evidentiary hearing, however, we
reverse the district court’s judgment dismissing Brown’s third,
fourth, and seventh federal claims and remand them to the district
court to conduct an evidentiary hearing before adjudicating them on
their merits.
I
FACTS AND PROCEEDINGS
A Texas state court jury found that Brown and another man beat
Bryan Shane Fulmer to death outside of a Denison, Texas nightclub
in a dispute over a $30 crack cocaine debt. Brown was convicted of
murder and sentenced to 30 years imprisonment. He did not appeal
his conviction.
Brown filed two state-court habeas corpus petitions. In the
first petition, Brown argued that he was denied the right to appeal
because his lawyer misled him by supplying false information
regarding his eligibility for parole. Specifically, Brown averred
that his lawyer advised him that he would be eligible for parole
within 18 to 22 months, before his appeal could be considered, and
that in reliance on this misinformation he decided not to file a
direct appeal. The state court denied Brown’s first petition
without conducting a hearing.
In his second state habeas corpus petition, Brown asserted six
grounds for habeas relief, five of which support the claim that his
lawyer’s assistance was constitutionally deficient. Specifically,
Brown averred that his lawyer failed to: (1) subpoena his
codefendant, Michael Jackson, who Brown claimed would have
testified that Brown attempted to stop the assault; (2) subpoena
the bartender of the nightclub where the assault occurred, who
Brown claimed would have testified that Brown told him to call for
2
medical assistance for the victim of the attack; (3) investigate
whether there had been another assault on the victim after the one
in which Brown participated, an assault that Brown claims was the
real cause of death (the “second assault defense”); (4) interview
potential witnesses, who Brown claims would have corroborated facts
supporting his second assault defense; and (5) review reports and
prior statements by witnesses, rendering his impeachment of the
witnesses at trial less effective than it could have been. The
sixth ground for relief that Brown asserted in his second state
habeas petition contends that he was denied due process by the
state trial court’s assumption of jurisdiction over his case
because his indictment was not signed by the district attorney.
The state trial court denied Brown’s second petition without
conducting a hearing, but the Texas Court of Criminal Appeals
vacated and remanded with instructions that the trial court obtain
an affidavit from Brown’s trial counsel and enter findings of fact
and conclusions of law with the benefit of the affidavit. At the
hearing, Brown’s trial counsel submitted an affidavit and Brown
responded by reiterating his allegations of constitutionally
deficient representation. Together with his response, Brown
proffered an affidavit from his mother in which she stated that she
was present when Brown demanded that his lawyer subpoena specific
witnesses whose testimony would have supported his second assault
defense. The trial court considered all of the affidavits, made
findings of fact, and entered a written order concluding that
3
Brown’s lawyer’s representation was not constitutionally deficient.
Brown then sought habeas relief in federal court under 28
U.S.C. § 2254. The claims made in Brown’s federal petition are
essentially identical to the claims he made in his state court
petitions. He asserts that his lawyer rendered constitutionally
deficient assistance by: (1) refusing to call his codefendant as a
witness; (2) failing to interview the bartender to corroborate
Brown’s assertion that he had asked the bartender to call for
medical assistance for the victim of the assault; (3) & (4) failing
to interview witnesses whose testimony would have added credibility
to the second assault defense; and (5) failing to prepare
adequately for trial, thereby missing opportunities to impeach
witnesses called by the prosecution. Brown further claims that (6)
he was denied due process of law because his indictment was not
signed by the District Attorney; and (7) he was denied the right to
appeal because his lawyer erroneously informed him that he would be
eligible for parole before any appeal he might file could be
decided by an appellate court. The state filed an answer arguing
that Brown’s petition should be denied as being wholly without
merit.
The district court referred the case to a magistrate judge,
who in turn directed the state to submit a statement of facts from
the state criminal trial together with any further responses that
it deemed necessary to clarify the facts surrounding Brown’s
second-assault defense. The magistrate judge’s request was made
4
pursuant to Rule 7 of the Rules Governing Habeas Corpus Cases Under
§ 2254 (“Rule 7").
In August 1996, the state responded to the magistrate judge’s
request by filing a supplemental answer, which included a ten-page
affidavit from Brown’s trial attorney. The affidavit responded not
only to Brown’s claims concerning the allegedly inadequate
investigation of his second assault defense, but —— exceeding the
magistrate judge’s invitation —— also responded exhaustively and in
great detail to each of Brown’s other five federal claims. Almost
five months later, in January 1997, the magistrate judge issued a
report and recommendation concluding that the district court should
deny Brown’s petition.
Brown filed objections to the magistrate judge’s report and
attached four affidavits. Each affidavit contained evidence that
had never been presented to the state courts but which was directly
responsive to the factual assertions made by Brown’s trial attorney
in the expansive affidavit submitted by the state in response to
the magistrate judge’s Rule 7 request. The magistrate judge
ordered the state to reply to Brown’s affidavits and to advise the
court whether “a brief evidentiary hearing needs to be conducted on
[Brown’s] claim that he was denied the right to appeal.” The state
asserted in reply that (1) Brown’s submission of affidavits
addressing evidence not presented to the state courts in either of
his state habeas petitions rendered his claims procedurally barred;
and (2) even if the claims were not procedurally barred, Brown’s
5
petition must be dismissed for failure to exhaust under 28 U.S.C.
§ 2254(b) and (c). In the alternative, the state asserted that
Brown had not been denied effective assistance of counsel because
all of the errors alleged by Brown could be attributed to his
lawyer’s reasonable trial strategy.
The district court overruled Brown’s objections and adopted
the magistrate judge’s report and recommendation. The court held
that the state trial court’s findings of fact were not unreasonable
in light of the evidence presented and accordingly denied Brown’s
petition in its entirety. The court further held that the new
affidavits submitted by Brown “consist[] of unexhausted issues
before the state courts....This court cannot consider unexhausted
claims unless an exception is present.” Concluding that none of
the exceptions to the exhaustion requirement were applicable to
Brown’s late-filed affidavits, the district court adopted the
magistrate judge’s report and recommendation without considering
any of the new evidence proffered by Brown. This appeal followed.1
II
ANALYSIS
1
In granting Brown’s request for a Certificate of Probable
Cause (CPC), we directed the parties to brief whether, in light of
Rule 7(c) of the Rules Governing Habeas Corpus Cases Under Section
2254 and Vasquez v. Hillery, 474 U.S. 254, 257-60 (1984), the
district court erred by refusing to consider Brown’s responsive
affidavits on the ground that they were procedurally barred. Our
resolution of the case precludes consideration of those issues,
however, as our decision turns instead on Brown’s right to some
form of federal evidentiary hearing under the Supreme Court’s
decision in Townsend v. Sain, 372 U.S. 293 (1963).
6
A. Jurisdiction & Standard of Review
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We
review the district court’s findings of fact for clear error;
issues of law are reviewed de novo.2
B. Categorizing Brown’s Habeas Claims
We begin our analysis by separating Brown’s several habeas
claims into different categories based on their procedural history.
28 U.S.C. § 2254 requires that a federal court considering the
merits of a state prisoner’s habeas corpus petition afford a
presumption of correctness to findings of fact made by state courts
in prior state habeas proceedings.3 Where no findings of fact have
been made by the state courts with respect to a particular habeas
claim, however, a federal habeas petitioner is entitled to some
form of federal evidentiary hearing so long as his “allegations, if
proved, would establish the right to habeas relief.”4
As noted, Brown filed two state habeas petitions. His first
petition, in which he alleged that his lawyer’s ineffective
2
Vanderbilt v. Collins, 994 F.2d 189, 196 (1993).
3
In Lindh v. Murphy, 521 U.S. 320 (1997), the Court held that
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
which was signed into law on April 24, 1996, does not apply in
noncapital cases to habeas corpus petitions that were pending when
the act was passed. Brown filed his petition prior to the
effective date of the AEDPA; therefore, the pre-AEDPA version of
§2254(d) determines the appropriate deference to be afforded state-
court fact finding.
4
Young v. Herring, 938 F.2d 543, 559 (5th Cir. 1991), citing
Townsend v. Sain, 372 U.S. 293, 307 (1963).
7
assistance of counsel denied him the right to appeal, was summarily
dismissed by the state courts without a hearing. His second
petition, in which he asserted five new claims of ineffective
assistance of counsel as well as a claim that he was deprived of
due process by the district attorney’s failure to sign his
indictment, was denied by the state courts after an evidentiary
hearing was conducted on remand. Although in his federal habeas
petition Brown has re-alleged all of the claims from both of his
state petitions, we must evaluate the claims from the two state
petitions separately because of the different treatment given them
by the state courts.
C. Claim Raised in First State Petition —— Denial of Right to
Appeal
As the state courts did not hold an evidentiary hearing with
respect to Brown’s claim that he was denied the right to appeal
(“Brown’s seventh federal claim”), there are no findings of fact
regarding that claim to which we must defer under Section 2254.
Thus, the only question we must answer with respect to that claim
is whether “the alleged facts, if true, would entitle petitioner to
relief.”5 If we conclude that Brown could be entitled to relief,
he must be accorded some form of federal evidentiary hearing
regarding the claim.6
5
Joyner v. King, 786 F.2d 1317, 1321 (5th Cir. 1986); see also
Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996).
6
See Townsend, 372 U.S. at 313-15; Blackledge v. Allison, 431
U.S. 63, 82-83 (1977).
8
The essence of Brown’s claim is that his attorney’s
ineffective assistance deprived him of the opportunity to appeal
his conviction. Specifically, Brown alleges that when he informed
his attorney that he wanted to appeal his conviction, his attorney
erroneously advised him not to appeal because he would be eligible
for parole in 18 to 22 months, long before his appeal could be
considered or ruled on. Brown was subsequently sentenced to 30
years in prison, and he will not be eligible for parole for several
years.
If Brown can prove that the facts he alleges are true, he will
be entitled to habeas relief. For a habeas petitioner to
demonstrate that his counsel’s performance was constitutionally
deficient, the Supreme Court’s decision in Strickland v. Washington
requires him to show that (1) his counsel’s representation “fell
below an objective standard of reasonableness”7 and (2) he was
prejudiced by his counsel’s deficient performance.8 With respect
to the first prong of the Strickland test, we hold that it is
objectively unreasonable for an attorney to advise a criminal
defendant incorrectly that he will be eligible for parole before
any appeal that he might file can be decided when in fact the
defendant faces a maximum sentence that could render him ineligible
for parole for many years to come. To demonstrate prejudice under
7
466 U.S. 668, 688 (1984).
8
Id. at 694.
9
the second prong of the Strickland test, a criminal defendant
alleging that his counsel’s deficient performance deprived him of
the right to appeal merely needs to show that “there is a
reasonable probability that, but for counsel’s deficient failure to
consult with him about an appeal, he would have timely appealed.”9
It is Brown’s contention that he told his attorney that he wanted
to appeal his conviction, but that his attorney persuaded him not
to appeal by giving him erroneous advice regarding his eligibility
for parole. Brown’s account, if true, is sufficient to demonstrate
that he was prejudiced by his attorney’s deficient performance.10
As Brown’s pleadings make out a facially adequate claim of
ineffective assistance of counsel, and as the state courts failed
to make any findings of fact with respect to the claim, he is
entitled to some form of evidentiary hearing in the federal courts.
In denying Brown’s seventh federal claim, the district court
relied heavily on the affidavit of Brown’s attorney, Jack McGowan.
The state submitted the affidavit in response to a Rule 7 request
made by the magistrate judge to whom the case was referred. The
magistrate judge did not request that the state submit any
supplementary evidence with respect to the claim here at issue;
however, the affidavit submitted by McGowan exhaustively responded
9
Roe v. Flores-Ortega, __ U.S. __, 120 S.Ct. 1029, 1038
(2000).
10
See, for example, Martin v. Texas, 694 F.2d 423, 425-26 (5th
Cir. 1982).
10
to all of Brown’s claims despite the fact that the magistrate judge
only requested additional information pertaining to Brown’s second
assault defense.
Under these circumstances, the district court erred in relying
on McGowan’s affidavit to deny Brown’s seventh federal claim. As
has been noted, because the state courts failed to make any
findings of fact with respect to that claim, Brown is entitled to
some form of federal evidentiary hearing. The Supreme Court has
specified that such hearings need not be “full-fledged”; district
courts have a number of tools at their disposal, including Rule 7,
which can be used to expand the record and “dispose of some habeas
petitions not dismissed on the pleadings...without the time and
expense required for [a full-fledged] evidentiary hearing.”11 If
a district court decides to forgo a full-blown hearing with plenary
presentation of evidence, however, it must “seek as a minimum to
obtain affidavits from all persons likely to have firsthand
knowledge” of the facts relevant to the claim under consideration.12
In other words, a district court must at a minimum make an
independent determination concerning what evidence is required to
resolve the defendant’s claim, and must solicit the best evidence,
short of live testimony of witnesses, that each of the parties is
11
Blackledge, 431 U.S. at 81-82; see also McDonald v. Johnson,
139 F.3d 1056, 1060 (1998) (“the district court may expand the
record and consider affidavits, exhibits, or other materials that
cast light on the merits of the petition”).
12
Blackledge, 431 U.S. at 1633 n.25.
11
capable of producing.
In the instant case, the district court made no independent
determination concerning what evidence it required to resolve
Brown’s seventh federal claim. The court’s fortuitous and
unsolicited receipt of evidence pertaining to that claim in the
form of McGowan’s expansive affidavit does not constitute an
adequate substitute for the balanced-evidence hearing to which
Brown is constitutionally entitled. Even if the district court had
specifically requested that the state submit evidence regarding the
claim, the court’s failure to solicit any evidence whatsoever from
Brown before ruling on it satisfactorily demonstrates that the
procedures employed by the court were inadequate to satisfy the
dictates of Townsend.
As the district court’s reliance on McGowan’s affidavit does
not satisfy Brown’s right to an evidentiary hearing, we reverse the
district court’s denial of Brown’s seventh federal claim and remand
that claim to the district court with instructions that it conduct
some form of evidentiary hearing regarding the claim, consistent
with the guidelines laid out in this opinion. Precisely what form
the evidentiary hearing should take is a matter for the district
court to decide. We do note, however, that the proceedings need
not amount to a “wide-ranging fishing expedition”;13 the district
court is required only to gather sufficient evidence to adjudicate
13
See Goodwin v. Johnson, 132 F.3d 162, 185 (5th Cir. 1998).
12
Brown’s claim fully and fairly.
D. Claims Raised in Brown’s Second State Petition
Brown asserted six grounds for habeas relief in his second
state habeas petition, all of which he raises again in his federal
petition. On remand from the Court of Criminal Appeals, the state
trial court conducted an evidentiary hearing and entered written
findings of fact respecting three of the six claims. Section 2254
requires that we defer to those findings of fact in ruling on
Brown’s federal habeas petition.
In his first federal claim, Brown asserts that he received
ineffective assistance of counsel because McGowan failed to
subpoena Brown’s co-defendant, Michael Jackson, to testify on his
behalf. The state court found that (1) McGowan had a bench warrant
issued to produce Jackson from prison to testify at trial; (2)
McGowan reviewed the testimony given by Jackson in other related
trials and concluded that his testimony would hurt rather than help
Brown’s case; and (3) McGowan related his concerns to Brown,
telling him that he (McGowan) was disinclined to call Jackson to
testify but would do so if Brown insisted. In light of these
findings of fact, the district court did not err in ruling that
McGowan’s conduct was objectively reasonable and that Brown did not
receive ineffective assistance of counsel with respect to his first
federal claim.
In his second federal claim, Brown asserts that he received
ineffective assistance of counsel because McGowan failed to
13
subpoena Bob Presley, who was a bartender at the nightclub that was
the scene of the crime and who, according to Brown, would have
testified that Brown asked him to call for medical assistance for
the victim of the assault. The state court found that McGowan did
in fact interview Presley and that Presley told McGowan that Brown
never asked him to call for medical assistance. In light of these
findings of fact, the district court did not err in ruling that
McGowan’s failure to subpoena Presley was objectively reasonable
and that Brown did not receive ineffective assistance of counsel
with respect to his second federal claim.
In his fifth federal claim, Brown asserts that he received
ineffective assistance of counsel because McGowan failed to review
prior reports and statements made by various trial witnesses which
would have enabled him to impeach their testimony more effectively.
The state trial court found that McGowan (1) interviewed potential
witnesses before trial; (2) was prepared at trial with written
statements and records of prior sworn testimony; and (3) did in
fact impeach witnesses with prior inconsistent statements during
the trial. In light of these findings of fact, the district court
did not err in ruling that McGowan’s conduct was objectively
reasonable and that Brown did not receive ineffective assistance of
counsel with respect to his fifth federal claim.
The state courts did not make any findings of fact respecting
Brown’s third, fourth, and sixth federal claims. Thus, Brown is
entitled to some form of federal evidentiary hearing with respect
14
to any of those claims that allege facts which, if proved true,
would entitle him to habeas relief.14
In Brown’s sixth federal claim, he asserts that he was
deprived of due process of law because the state trial court
assumed jurisdiction over the case against him despite the district
attorney’s failure to sign Brown’s indictment. The district court
correctly concluded that no evidentiary hearing is necessary with
respect to this claim. Even assuming that Brown’s allegation that
the district attorney failed to sign his indictment is true, that
omission would not have deprived the state trial court of
jurisdiction under Texas law.15 Thus, the district court did not
err in dismissing Brown’s sixth federal claim without conducting an
evidentiary hearing.
In his third and fourth federal claims, Brown asserts that he
received ineffective assistance of counsel because McGowan failed
adequately to investigate Brown’s second assault defense. As the
state courts failed to make any findings of fact with respect to
Brown’s second assault defense, the magistrate judge to whom
Brown’s case was referred expanded the record by using Rule 7 to
gather the evidence necessary to resolve the claims. Specifically,
the magistrate judge directed the state to submit “any further
responses deemed necessary” to the adjudication of Brown’s second
14
Joyner, 786 F.2d at 1321; see also Perillo, 79 F.3d at 444.
15
See McKay v. Collins, 12 F.3d 66 (5th Cir. 1994).
15
assault defense claims. Accordingly, the state submitted an
affidavit prepared by McGowan which responded in detail not only to
Brown’s claims regarding his second assault defense, but also to
those claims about which the magistrate judge had not requested any
additional information. Noting that “Mr. McGowan refutes each
claim made by petitioner and Mr. McGowan’s affidavit is supported
by his work product contained in the supplemental record,” the
magistrate judge recommended that the district court deny Brown’s
claims pertaining to the second assault defense. The district
court subsequently adopted the magistrate judge’s findings of fact
and conclusions of law and dismissed all of Brown’s claims.
As failure to investigate a potentially sound defense can,
under some circumstances, constitute ineffective assistance of
counsel that entitles a petitioner to relief,16 Brown should have
been accorded some form of federal evidentiary hearing before his
third and fourth federal claims were adjudicated by the district
court. Therefore, we must decide whether the magistrate judge’s
purposeful expansion of the record pursuant to Rule 7 by inviting
the state to submit additional evidence regarding the second
assault defense satisfies Brown’s right to an evidentiary hearing.
We conclude that it does not. It is true that under some
circumstances a “paper hearing” involving the consideration of
affidavits only can be sufficient to satisfy a petitioner’s right
16
See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985).
16
to an evidentiary hearing.17 No matter what form of hearing a
district court elects to conduct, however, a habeas petitioner must
be accorded “careful consideration and plenary processing of his
claim, including full opportunity for presentation of the relevant
facts.”18 The failure of the magistrate judge and the district
court to solicit any evidence whatsoever from Brown with respect to
his second assault defense claims deprived him of his right under
Townsend to an evidentiary hearing. We therefore reverse the
district court’s denial of Brown’s third and fourth federal claims
and remand them to the district court with instructions to conduct
an evidentiary hearing consistent with the guidelines laid out in
this opinion. We note again that the precise form that the
evidentiary hearing should take is a matter for the district court
to decide, and that the court is required only to gather sufficient
evidence to adjudicate Brown’s claim fully and fairly.
III
Conclusion
The district court’s judgment with respect to Brown’s first,
second, fifth and sixth federal habeas claims is affirmed. The
district court’s judgment with respect to Brown’s third, fourth,
and seventh federal habeas claims is reversed, and these claims are
17
See Blackledge, 431 U.S. at 81 (“the district judge (or a
magistrate to whom the case may be referred) may employ a variety
of measures in an effort to avoid the need for an evidentiary
hearing”).
18
Id. at 82-83 (punctuation and citation omitted).
17
remanded to the district court with instructions to conduct an
evidentiary hearing with respect to those claims before
adjudicating them on their merits.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART, with instructions.
18