Guidry v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 14, 2005

Charles R. Fulbruge III
Clerk
No. 03-20991

HOWARD PAUL GUIDRY,

Petitioner-Appellee,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Howard Paul Guidry was convicted in Texas state court of

murder for remuneration in Harris County, Texas, and sentenced to

death. He was granted conditional federal habeas relief based on

the following two claims, involving evidence admitted for the State

at trial: his confession violated his Fifth Amendment right

against self-incrimination; and hearsay testimony against his

interest violated his Sixth Amendment confrontation right. The

Texas Court of Criminal Appeals had denied those claims on direct

appeal. Guidry v. State, 9 S.W.3d 133 (Tex.Crim.App. 1999), cert.

denied, 531 U.S. 837 (2000) (Guidry I). In denying Guidry’s Sixth

Amendment claim, the Court of Criminal Appeals had held: although
the hearsay testimony against Guidry’s interest had been admitted

erroneously, the error was harmless. Id. at 149-52.

The State contends the district court reversibly erred

because: (1) under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996),

the district court abused its discretion by conducting an

evidentiary hearing on the confession’s constitutionality, despite

the state trial court’s having done so for the same issue,

involving, according to the State, the same evidence; (2) the

district court’s non-acceptance of key state court findings of fact

and, therefore, of its conclusions of law, did not accord with

AEDPA’s deferential scheme; and (3) the district court’s findings

of fact and conclusions of law regarding the confession and hearsay

testimony (that their admission into evidence was erroneous and did

not constitute harmless error) are erroneous.

The district court properly granted conditional habeas relief,

pursuant to 28 U.S.C. § 2254(d) (state court decision was based on

unreasonable application of clearly established federal law or on

unreasonable determination of the facts). AFFIRMED.

I.

Farah Fratta was murdered on 9 November 1994; her husband,

Robert Fratta, had hired Joseph Prystash to kill her. (Each

received the death penalty.) During a custodial interrogation

approximately four months after Farah Fratta’s murder, Guidry

2
confessed to shooting Farah Fratta and leaving the scene with

Prystash. At Guidry’s trial, his confession, as well as hearsay

testimony against Guidry’s interest by Prystash’s girlfriend, Mary

Gipp, established that, for $1,000, Guidry agreed to help Prystash

kill Farah Fratta. The events surrounding this crucial evidence

follow.

Guidry was arrested on 1 March 1995 for bank robbery; in his

possession was the gun used for Farah Fratta’s murder in November

1994. Following a tip from Gipp, detectives investigating Farah

Fratta’s murder turned their investigation toward Guidry, who was

being held at the county jail on the robbery charge.

On 7 March 1995, Detectives Roberts and Hoffman transported

Guidry from the jail to the Sheriff’s office and questioned him

about Farah Fratta’s murder. As a result of this interrogation,

Guidry gave a statement confessing to it. (He initially confessed

to being only the driver, failed a polygraph test, and confessed to

being the shooter.) This statement was followed by more detailed,

videotaped confessions. (Guidry and the detectives offer sharply

contrasting versions of the interrogation leading to the

confession.)

Guidry was indicted for the murder of Farah Fratta “for

remuneration or the promise of remuneration”. TEX. PENAL CODE §

19.03(a)(3). After two pre-trial evidentiary hearings, the trial

court denied Guidry’s motion to suppress the confession. In March

3
1997, a jury found Guidry guilty of capital murder and, following

the punishment phase, answered Texas’ special issues in a manner

requiring imposition of a death sentence. For the two fact-

intensive claims on which conditional federal habeas relief was

granted, an extremely detailed description of the proceedings in

state and federal court is required.

A.

Central to Guidry’s claim that his confession was obtained in

violation of the Fifth Amendment are two events: Guidry’s 7 March

1995 interrogation and confession; and an in-chambers conversation

approximately a week later (15 March), involving, among others,

Detective Roberts and Guidry’s then-attorneys for the murder

charge. These events bear on the two key questions for the Fifth

Amendment claim: (1) whether Guidry asked to have his robbery-

charge-attorney present during the 7 March interrogation about

Farah Fratta’s murder; and (2) whether the detectives told Guidry,

untruthfully, that Guidry’s robbery-charge-attorney had authorized

Guidry’s cooperation without his attorney’s being present. The

detectives deny Guidry requested an attorney and deny that they

spoke with his robbery-charge-attorney; they claim Guidry confessed

voluntarily.

The trial court held a pre-trial hearing on 28 August 1996 on

Guidry’s motion to suppress the confession; it was continued when

it became apparent that Guidry’s two attorneys for the murder

charge would be required to testify about the 15 March 1995 in-

4
chambers conversation. A second pre-trial hearing was held on 20

February 1997, involving the same witnesses, but adding testimony

by Guidry and his two original/former attorneys for the murder

charge. Following this hearing, the trial court orally denied the

suppression motion; post-jury verdict, it entered written findings

of fact and conclusions of law on 27 March 1997. Those findings

and conclusions, as well as the testimony at the two pre-trial

hearings about the interrogation and in-chambers conversation,

follow.

1.

At the 1997 pre-trial hearing, Guidry testified about the 7

March 1995 interrogation. (As noted, he did not testify prior to

the initial hearing’s being continued in 1996.) According to

Guidry: his robbery-charge-attorney, Duer, instructed him not to

discuss anything with anyone (including officers and other

prisoners); Detectives Roberts and Hoffman removed him from the

county jail and transported him to their offices for interrogation;

Detective Hoffman questioned him initially, left the room, and

returned with Detective Roberts; Detectives Roberts and Hoffman

then confronted Guidry with pictures of Farah Fratta’s body; this

frightened Guidry; he requested his attorney; and Detective Hoffman

refused, while Detective Roberts remained silent.

Guidry testified further: the detectives left him alone for

around one and a half hours; then, Detective Hoffman returned,

5
saying he had a statement from Prystash implicating Guidry; the

detective gave the statement to Guidry to read and claimed he had

other evidence as well, but that they could work out a deal if

Guidry cooperated. Guidry testified:

And this is all while I was reading the
statement [by Prystash]. After I got through
reading the statement, I asked [Detective
Hoffman] again, I –– I really didn’t ask him,
I kind of demanded that I speak to my lawyer
that second time, because I was –– I was
really getting scared after the second time
....

And when I told him that, he told me he was
going to contact my attorney. At that point
in time, he picked up the statement and he
left ... the room.

(Emphasis added.) Guidry testified that Detective Hoffman

... asked me before he left ... the room ––
when I asked him for my attorney the second
time, he asked me who my lawyer was. And I
told him Mr. Layton Duer.

And he said: I’m going to contact your
attorney and we’re going to see what he says,
right. And he stayed in the room maybe a
minute getting paperwork together, and he left
... the room.

(Emphasis added.) According to Guidry, after some time passed,

Detectives Roberts and Hoffman returned, saying they had contacted

Guidry’s attorney.

Detective H[o]ffman ... told me he had
contacted my attorney.

He told me my attorney said it was all
right for me to answer the question, and don’t
worry about it, you know, it was no problem.

6
Following this claimed exchange, and in claimed reliance on the

alleged conveyed authorization from his attorney, Guidry gave his

initial confession.

At the 1996 (first) pre-trial hearing, Detective Roberts

offered conflicting testimony about knowledge of Guidry’s

representation.

Q. Were you aware of the fact that he, in
fact, had an attorney representing him out of
the bank robbery?

A. Somewhere, subsequent in the
conversation, I was advised that he did have
an attorney for the aggravated robbery.

(Emphasis added.) But later in the hearing, Detective Roberts

retreated from his Guidry-had-counsel acknowledgment.

A. ... I don’t know if he had an attorney or
not. I was, I assumed he, I don’t know, he
didn’t tell me. I don’t know how, whether he
had been in jail and had been appointed an
attorney [for the bank robbery charge], I
never did confirm if he had an attorney.

Q. So now you are going back to say you
didn’t even know he had an attorney?

A. Just because somebody’s lips move doesn’t
make it a prayer book. I never did confirm
whether there was an attorney or not.

Q. So when he told you he had an attorney,
you assumed he was lying, right, so it wasn’t
a prayer book?

A. I’m not aware of how I was made aware of
it, if he had an attorney or not.

(Emphasis added.)

7
 When asked whether he had contacted Guidry’s attorney at any

time for any purpose, Detective Roberts answered: “I don’t think

I did”. (Emphasis added.) He also denied that Guidry requested

either to speak with his attorney or to have him present.

At the 1997 (second) pre-trial hearing, Detective Roberts gave

the following testimony regarding his knowledge of Guidry’s

representation at the time of the 7 March 1995 interrogation:

Q. For the record, today, tell us what you
knew about who Howard Guidry’s attorney was or
what information you had at the time the
conversation took place between you and him on
March the 7, 1995?

A. I had no knowledge that he had an
attorney.

...

Q. At any time during your conversation
with... Mr. Guidry, either by Detective
Hoffman or anybody else in the interview room
that date on March 7, 1995, did you learn that
Howard Guidry did, in fact, have an attorney
on the Klein Bank robbery?

A. No, sir.

(Emphasis added.) Later in the hearing, however, Detective Roberts

contradicted this testimony, returning toward his original position

at the 1996 pre-trial hearing. This testimony was even more

favorable to Guidry because Detective Roberts admitted Guidry told

him that he (Guidry) had an attorney.

Q. Did [Guidry] ever tell you he had an
attorney?

A. Yes, sir.

8
 Q. But he never told you he wanted to talk
to that attorney?

A. That’s correct.

(Emphasis added.)

Detective Hoffman also testified at the 1996 and 1997

hearings: he read Guidry his Miranda rights several times,

beginning during the transport from the county jail; Guidry was

very cooperative and voluntarily waived his rights and confessed;

Detective Hoffman did not know for what offense Guidry had been

incarcerated in the county jail; he did not know that Guidry had an

attorney for that offense; Guidry never asked to have his attorney

present during the interrogation or confession; and neither he nor

Detective Roberts ever returned to the interrogation room saying

they had spoken with Guidry’s attorney and that he had authorized

Guidry’s cooperation.

Sergeant Dan Billingsley, the supervising detective on duty at

the Sheriff’s office the night of the interrogation, witnessed some

of the confession. He testified that, although he was sure he knew

Guidry had an attorney, he was not sure when he became aware of

that fact.

2.

At the 1996 (first) hearing, Gottlieb, a lawyer unaffiliated

with the Guidry case, gave the following testimony about a 15 March

1995 conversation in the chambers of a Texas state judge

(approximately a week after the interrogation/confession). The

9
judge was not present; the following persons were: Gottlieb;

Guidry’s two attorneys for the murder charge, Scott and Yarborough;

Assistant District Attorney Rizzo; and two Harris County Sheriff’s

detectives. During this conversation, one of the detectives

remarked that he had been involved in obtaining Guidry’s confession

for the investigation of Farah Fratta’s murder.

Scott and Yarborough, who had been appointed on or about that

very day to defend Guidry on the murder charge, asked about the

circumstances under which Guidry confessed. Gottlieb testified

about the detectives’ response.

Q. Was there any discussion [by the
detectives] about whether or not Howard Guidry
had an attorney?

...

A. ... I think I said something to the
effect that well, you know, he has an attorney
on the aggravated robbery. They said, Yes, we
talked to the attorney and got permission to
talk to Mr. Guidry before we took him out to
have his statement. ...

[W]e all looked at each other in total and
complete amazement ...

I mean we were shocked that that would
have occurred....

That the lawyer gave them permission to
talk to a man being accused of capital
murder... [that a] defense attorney would even
do that. I mean I specifically remember
elbowing ... Yarborough, going, Who is that
[lawyer?]

(Emphasis added.)

10
 Duer, Guidry’s robbery-charge-attorney, also testified at the

1996 hearing. According to his testimony: he told Guidry not to

talk to any officers; he was never contacted by any detectives or

by anyone else; and he never gave anyone permission to discuss any

matter with Guidry.

Detectives Hoffman and Roberts and Sergeant Billingsley

testified, as discussed supra, after Gottlieb and Duer at the 1996

hearing. At this point in the hearing, Guidry’s murder-charge

attorneys (Scott and Yarborough) realized that, because the

detectives had contradicted Gottlieb’s account of the 15 March in-

chambers conversation, they (Guidry’s murder-charge attorneys)

would be required to testify about that conversation as

participants in it. Therefore, they moved for a continuance so

they could withdraw and new counsel could be appointed to represent

Guidry. The motion was granted.

At the 1997 hearing, Gottlieb again testified regarding the 15

March in-chambers conversation. Scott and Yarborough also

testified about it.

Yarborough testified that, the day before her testimony at the

1997 hearing, she had checked and determined that the State’s case

against Prystash was on the docket on the day of the 15 March in-

chambers conversation (the reason for some or all of the persons

being in the chambers). During that in-chambers conversation,

according to Yarborough, Scott asked Detective Roberts why he

11
interrogated Guidry, obtaining a confession, when he knew Guidry

had a lawyer, and Detective Roberts responded: “I talked to his

lawyer, and his lawyer said it was okay to talk to him”.

Yarborough testified she was absolutely sure this is what Detective

Roberts said, and that she had reacted with shock.

Scott testified as follows

A. The response [from Detective Roberts and
the other detective] was that they knew
[Guidry] had an attorney at the time they took
the statement, but they had checked with that
attorney and got permission to go ahead and
talk to Howard Guidry.

Q. Now, just so that the record is clear.
Did the officer indicate to you that he talked
with the attorney on the aggravated robbery
case and got permission to take the confession
in the capital case?

A. Yes, sir. He said that he knew [Guidry]
had an attorney –– referring to the other
attorney and that ... they had called and
gotten permission from that attorney to talk
to Mr. Guidry before they took the statement
in the capital murder case.

The Dissent at 3 notes that Scott testified Detective Roberts might

have been joking at the in-chambers conversation. This is a

critical point. Indeed, Scott testified he had thought Roberts had

been joking then; his opinion changed totally at the 1996 hearing

when Roberts’ testimony constituted a total denial of any in-

chambers conversation, not that he had just been joking. Again,

this is what caused Scott and Yarborough to realize at the 1996

12
hearing that they would have to withdraw as Guidry’s counsel and

testify.

Scott and Yarborough testified further: they immediately

determined that Duer had been Guidry’s robbery-charge-attorney;

and, when they contacted him, he stated he had never had any such

conversation with the detectives. As he had in 1996, Duer

testified at the hearing in 1997 that “[n]o one has ever contacted

me about speaking to Mr. Guidry”.

Detective Roberts had testified at the start of the 1997

hearing. He was recalled after Scott and Yarborough testified. He

was then questioned about this 15 March in-chambers conversation.

Detective Roberts testified he had no recollection of its having

occurred.

3.

The pre-trial suppression motion was denied orally on 20

February 1997. Just before doing so, the state court stated that,

for purposes of ruling on the admissibility of Guidry’s confession,

the 15 March in-chambers “conversation was absolutely meaningless,

except as it relate[d] to credibility”. (Emphasis added.)

Concerning credibility, when the first lawyer (Gottlieb)

testified at the 1996 hearing, the trial judge asked counsel for

both sides if they waived her being sworn, noting that, although

she had “not [been] a long time member of the bar”, she was

“experienced”. After counsel agreed to the waiver, the trial court

13
stated: “Ms. Gottlieb, we trust you”. Thereafter, however, at the

1996 and 1997 pre-trial hearings and in the light of Gottlieb’s

testimony at the 1996 hearing about the 15 March 1995 in-chambers

conversation, the lawyers testified under oath.

In admitting Guidry’s confession at trial, the state court on

20 March 1997 summarized the testimony given by Gottlieb, Scott,

and Yarborough about the 15 March 1995 in-chambers conversation.

That summary reflected the critical nature of the testimony by

those lawyers, including the crucial credibility question presented

by the trial judge at the conclusion of the 20 February 1997 pre-

trial suppression hearing. In ruling that the admissibility of

Guidry’s confession was a question for the court, not the jury, the

state court did not comment, however, about the credibility of the

testimony by Gottlieb, Scott, or Yarborough.

Post-verdict, the trial court on 27 March 1997 entered written

findings of fact and conclusions of law concerning the confession,

including the following:

At all times Guidry advised [Detective] Tonry
[a third detective] in Hoffman’s presence that
Guidry understood what his rights [were],
never requested to have an attorney, never
asked to call his attorney, never desired his
attorney, never refused to discuss the case
without his attorney.

And, as a result, Guidry continued
voluntarily discussing his complicity in the
... murder for hire with Detectives Hoffman
and Tonry.

14
 ... [T]he statements were voluntarily made,
not induced by force, threats or coercion, nor
were any promises made, nor was anything done
to induce [Guidry] or cause [Guidry] to make
anything but a knowing and intentional waiver
of his rights and a free and voluntary
decision to confess.

(Emphasis added.)

These findings and conclusions, however, did not reconcile the

testimony of Detectives Roberts and Hoffman with that of lawyers

Duer, Gottlieb, Scott, and Yarborough. Indeed, notwithstanding the

state court’s above-discussed comments at the conclusion of the

1997 pre-trial suppression hearing and at trial, there was no

mention of the lawyers’ testimony from either of the two pre-trial

evidentiary hearings, including the 15 March 1995 in-chambers

conversation involving the detectives and the lawyers. With the

exception of Guidry’s testimony, the findings and conclusions did

not evaluate the credibility of any defense testimony.

In evaluating Guidry’s testimony, the trial court placed

emphasis on Guidry’s cooperation with law enforcement officers when

Guidry had been arrested for other offenses, including for one

offense for which he had claimed only to be the driver. (As noted

supra, he had also made that claim in his initial confession

concerning Farah Fratta’s murder.)

Guidry admitted to having made a confession to
the police regarding the Klein Bank robbery
prior to [the] March 7 [interrogation]
mentioned above. Guidry also testified that
as a 16 year old arrested for a number of
burglaries he also confessed[;] additionally,

15
 Guidry had admitted to having confessed to
certain other offenses (although not in
writing) and has admitted under oath to
habitually being cooperative with police ...
upon his arrest regarding his complicity in
offenses. Additionally, in another offense
Guidry also claimed to have been less culpable
in that he was the driver as opposed to not
being the trigger man (a factor that did not
go unnoticed by the trial Court in assisting
its determination as to Guidry’s credibility
and motive).

(Emphasis added.)

B.

Guidry’s direct appeal to the Texas Court of Criminal Appeals

raised 23 issues, including claims that: (1) the trial court’s

findings and conclusions failed to address conflicts in the

evidence concerning the voluntariness of his confession; (2) it was

obtained in violation of the Fifth Amendment because he invoked his

right to counsel; and (3) Gipp’s hearsay testimony was admitted in

violation of his Sixth Amendment confrontation right.

Concerning the absence of findings on either conflicting

testimony or inconsistencies in the testimony, the Court of

Criminal Appeals held that, although TEX. CODE CRIM. PROC. art. 38.22

§ 6 requires specific findings of fact when the voluntariness of a

confession is raised, see, e.g., Hester v. State, 535 S.W.2d 354,

356 (Tex.Crim.App. 1976), “the trial court’s findings were

sufficiently detailed”. Guidry I, 9 S.W.3d at 142. It reasoned

that the trial court is required to provide facts supporting its

conclusions but is not required by Texas law to outline testimony

16
that does not support those conclusions. Id. In this light, the

court rejected Guidry’s Fifth Amendment claim, holding: “There is

evidence in the record supporting these findings. Because the

trial court is in the best position to evaluate the credibility of

the witnesses and their testimony, we defer to the trial court’s

findings [that Guidry did not request his attorney]”. Id. at 143

(emphasis added).

Concerning Gipp’s testimony about Prystash’s statements

implicating Guidry in the murder, the Court of Criminal Appeals

rejected Guidry’s inadmissible-hearsay claim. Although it ruled

that some of Gipp’s hearsay testimony was admissible, the court

held that her testimony relating to Prystash’s statements against

Guidry’s interest was inadmissible. Id. at 149. Nevertheless, it

held the admission of that testimony was harmless error because,

given the strength of Guidry’s confession and the other evidence,

Guidry would have been convicted and sentenced in the same way,

even without Gipp’s inadmissible testimony. Id. at 152.

In May 2000, Guidry filed a habeas petition in state court

raising, inter alia, Fifth and Sixth Amendment claims. That July,

without an evidentiary hearing, the state habeas court adopted

verbatim the State’s proposed findings of fact and conclusions of

law and recommended denial of Guidry’s petition on all claims.

Unlike the trial court’s findings, the state habeas court’s

findings included reference to Gottlieb’s and Duer’s testimony at

17
the 1996 evidentiary hearing. But, although the findings observe

that the 1996 hearing was continued so that Scott and Yarborough

(Guidry’s then-counsel for the murder charge) could testify, they

omit all reference to the 1997 pre-trial evidentiary hearing.

Restated, there is no discussion of the testimony from the 1997

hearing, including by Scott and Yarborough. Moreover, there is no

attempt to reconcile conflicting testimony between Detectives

Roberts and Hoffman on the one hand and lawyers Duer, Gottlieb,

Scott and Yarborough, on the other. Indeed, the findings make no

credibility determinations; they do not weigh any witness’ version

of events against another’s.

The state habeas court concluded: “[Guidry’s] claims

concerning the voluntariness of his statements were raised and

rejected on direct appeal. As such, the issue need not be

considered in the instant writ proceeding or in any subsequent

proceedings”. In the alternative, it concluded that Guidry had

failed to show his confession violated his right against self-

incrimination.

In November 2000, based on its review of the record, the Court

of Criminal Appeals ruled that the habeas trial court’s findings

and conclusions were supported by the record. On that basis, it

denied habeas relief.

Guidry filed his federal habeas petition in November 2001,

raising four grounds for relief, including the Fifth and Sixth

18
Amendment claims at issue here. In his petition, Guidry requested

an evidentiary hearing.

In a joint answer and motion for summary judgment, the State

did not explicitly address Guidry’s request for an evidentiary

hearing. Instead, it provided, inter alia, a summary of AEDPA’s

standards for habeas relief as they related to Guidry’s claims,

including, pursuant to 28 U.S.C. § 2254(e)(1), the presumption of

correctness to be accorded state court determinations of fact,

unless rebutted by clear and convincing evidence, and how, pursuant

to 28 U.S.C. § 2254(e)(2), an evidentiary hearing can be barred.

In an extremely detailed and comprehensive opinion, the

district court denied the State’s summary judgment motion and

ordered an evidentiary hearing for the voluntariness vel non of

Guidry’s confession. Guidry v. Cockrell, No. H-01-CV-4140 at 9

(S.D.Tex. 11 Sept. 2002) (Guidry II). Concerning both why summary

judgment could not then be granted and why an evidentiary hearing

was required, the district court stated that the confession

issue comes before the Court under the
deferential review afforded state factual
findings. Such findings are entitled to a
presumption of correctness under 28 U.S.C. §
2254(e)(1). Guidry may rebut the presumption
of correctness by clear and convincing
evidence.

Having extensively reviewed the facts of
this case, this Court is unable to grant
Respondent’s summary judgment motion at this
time. Substantial factual questions persist
surrounding Guidry’s confessions. The state
courts made no attempt to evaluate the veracity

19
 of the attorney testimony or analyze its
implication in this case. The state courts
made no specific finding with respect to the
inconsistent and contradictory testimony by the
police officers. If the allegations in
Guidry’s petition, as corroborated by the
attorneys’ testimony, are true, the
reasonableness of the state court decision is
suspect. [See 28 U.S.C. § 2254(d), discussed
infra.] For this Court to fully evaluate the
circumstances surrounding this claim, further
factual development is appropriate. Factual
development would aid this Court in determining
whether clear and convincing evidence rebuts
the trial finding that Guidry did not request
counsel. Also, the factual development would
clarify the ultimate question of the
reasonableness of the state court’s
determination. See Valdez v. Cockrell, 274
F.3d 941, 952 (5th Cir. 2001) (“When a district
court elects, in instances not barred by §
2254(e)(2), to hold an evidentiary hearing, the
hearing may assist the district court in
ascertaining whether the state court reached an
unreasonable determination under either §
2254(d)(1) or (d)(2).”). To that end, the
Court will hold an evidentiary hearing limited
to the issue of Guidry’s Fifth Amendment claim.

Id. at 12-13 (emphasis added; footnote omitted). Concomitantly, the

district court ruled that an evidentiary hearing was not barred by

28 U.S.C. § 2254(e)(2), discussed infra. Id. at 13 n.12.

The State did not file a motion seeking to have the district

court reconsider its decision to conduct an evidentiary hearing.

Nor did it oppose Guidry’s motion for a continuance of that hearing

from 1 November 2002 to 13 December 2002.

At the hearing, Guidry and lawyers Duer, Gottlieb, Scott, and

Yarborough gave substantially the same testimony they had given in

20
the state pre-trial evidentiary hearings. Similarly, Detective

Hoffman gave the same testimony, adding that he had never been in

the chambers where the 15 March 1995 conversation took place.

Sergeant Billingsley also provided substantially the same testimony.

On the other hand, Detective Roberts’ testimony, although

similar in most respects to his previous testimony, included some

significant differences: at the time of Guidry’s interrogation on

7 March 1995, he did not know Guidry had an attorney; he did recall

the 15 March 1995 in-chambers conversation (a direct contradiction

of his 1997 pre-trial testimony); and he never told Scott in that

conversation that he had contacted Duer, Guidry’s robbery-charge

attorney. For the first time, Detective Roberts testified, on

direct examination, that, prior to questioning Guidry, he had

contacted an attorney — Assistant District Attorney Wilson — to ask

if he could question Guidry about the murder, because he knew that,

based on Guidry’s having been in jail several days on another

charge, he probably had an attorney.

Q Let me back up just a little bit. I am
sorry. Prior to interviewing Mr. Guidry, did
you contact any attorney?

A Yes, I did.

Q Who did you contact?

A I contacted Ted Wilson with the Harris
County District Attorney’s Office.

Q Why did you contact Mr. Wilson?

21
 A Just to ask him if there was a problem
with me talking to Howard Guidry concerning
this capital murder.

Q And why did you think there might be a
problem with talking to him?

A I knew he had been in jail for several
days; and usually after a suspect has been in
jail for two or three days, an attorney is
appointed to them in most cases.

Q So you knew it was possible that he might
have an attorney?

A It was possibly that he may have an
attorney, and I wanted to make sure there
wasn’t a conflict, there was no problem.

(Emphasis added.) Along this line, on cross-examination, Detective

Roberts testified that Guidry may have told him during the

interrogation that he did have an attorney.

In September 2003, the district court granted conditional

habeas relief on Guidry’s claims under the Fifth Amendment

(involuntary confession) and Sixth Amendment (improper hearsay

testimony). Guidry v. Dretke, No. H-01-CV-440 (26 Sept. 2003)

(Guidry III). In so doing, the district court stayed its judgment

pending appeal.

II.

At issue is whether the district court reversibly erred: (1)

by conducting an evidentiary hearing on Guidry’s confession, in the

light of the state court’s having held one for that issue and,

according to the State, for the same evidence and in order to

substitute its credibility determinations for those by the state

22
court; (2) by ruling on that confession issue that, pursuant to 28

U.S.C. § 2254(e)(1), Guidry, with the requisite clear and convincing

evidence, rebutted the presumption of correctness AEDPA accords to

state court determinations of fact; and (3) by ruling that the

admission of the confession and the hearsay testimony against

Guidry’s interest was not harmless error. We hold that the district

court applied AEDPA properly both in conducting the hearing and in

granting Guidry conditional habeas relief.

A.

“AEDPA’s purpose [is] to further the principles of comity,

finality, and federalism.” Michael Williams v. Taylor, 529 U.S.

420, 436 (2000). Toward that end, its enactment in 1996 effected

considerable limitations on federal habeas review. That change,

however, does not compel the narrow reading given AEDPA by the State

(and the dissent) in regard to the district court’s conducting an

evidentiary hearing and applying 28 U.S.C. § 2254(e)(1).

1.

The trial court held pre-trial evidentiary hearings in 1996 and

1997 on the voluntariness vel non of Guidry’s confession; the state

habeas court did not conduct a hearing; and the district court held

an evidentiary hearing on the same issue in 2002. The State does

not contend that AEDPA expressly bars the district court hearing;

23
instead, consistent with the abuse of discretion standard of review

for this issue, it contends that the district court abused its

discretion by conducting the hearing. See, e.g., Valdez v.

Cockrell, 274 F.3d 941, 948, 952 (5th Cir. 2001), cert. denied, 537

U.S. 883 (2002); Barrientes v. Johnson, 221 F.3d 741, 770 (5th Cir.

2000) (citing McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th Cir.

1998)).

a.

According to the State, the district court hearing permitted

the district court improperly to substitute its credibility

determinations for those by the state court, contravening AEDPA’s

policy goals. Citing Pondexter v. Dretke, 346 F.3d 142, 147-49 (5th

Cir. 2003), and Self v. Collins, 973 F.2d 1198 (5th Cir. 1992) (pre-

AEDPA), the State observes correctly (as does the dissent) that, in

reviewing a state court decision, a federal habeas court is

prohibited from substituting its credibility rulings for those by

the state court simply because the district court disagrees with

them.

Claiming erroneously that the same evidence was presented at

the district court hearing in 2002 as at the earlier state court

pre-trial hearings in 1996 and 1997 (the same witnesses providing

the same testimony), the State presents a narrow claim concerning

the district court’s discretion to conduct the evidentiary hearing:

where there will be no new evidence, and the federal habeas court

24
intends only to make new credibility rulings regarding existing

evidence, conducting an evidentiary hearing is an abuse of that

discretion. The State objects to the district court’s, in this

fashion, evading its deferential obligations and the constraints

placed on its discretion by AEDPA. See Villafuerte v. Stewart, 111

F.3d 616, 633 (9th Cir. 1997) (not abuse of discretion to deny an

evidentiary hearing where district court asked to hear “the same

evidence heard by the state court in the state habeas proceeding.

This is not a valid reason for an evidentiary hearing in district

court”).

The State offers no direct authority, however, for restricting

the district court’s discretion in this fashion. Instead, it

contends that the restriction is consistent with AEDPA’s purpose and

principles. In this regard, the State seems to claim that AEDPA

limits a federal habeas court’s discretion to conduct an evidentiary

hearing to those instances in which the facts were not fully

developed in state court.

i.

Based on our review of the record, it is arguable that the

State did not properly preserve this narrow issue in district court.

Guidry does not claim this issue is raised for the first time on

appeal. On the other hand, no authority need be cited for the rule

that we, not the parties, select the appropriate standard of review,

including whether an issue will even be addressed if not raised in

25
district court. See McLuckie v. Abbott, 337 F.3d 1193, 1200 n.3

(10th Cir. 2003) (refusing to address whether lack of evidentiary

hearing was proper when no objection to its absence at district

court habeas review).

Guidry’s habeas petition requested an evidentiary hearing, and

the district court ordered one in conjunction with denying the

State’s summary judgment motion. In neither instance did the State

object to an evidentiary hearing; it certainly did not present the

narrow hearing-is-prohibited issue it raises now. At most, an

implied objection is perhaps presented in its joint answer to

Guidry’s habeas petition and summary judgment motion, concerning:

pursuant to AEDPA, the deference due state court decisions and when

an evidentiary hearing is expressly barred; and its summary judgment

request.

Obviously, this issue should have been presented expressly and

fully to the district court, especially when, on denying summary

judgment, it ordered an evidentiary hearing. Had the issue been so

presented, the record would be far better developed for our review;

judicial efficiency and economy, far better served.

The State’s discussion, in its joint answer to Guidry’s habeas

petition and summary judgment motion, concerning the AEDPA-mandated

deference to state court decisions and when an evidentiary hearing

is expressly barred by AEDPA, falls short of presenting adequately

to the district court the narrow issue raised now concerning whether

26
the district court abused its discretion by conducting the

evidentiary hearing. Likewise, the summary judgment request is

silent on that question. On the other hand, it might be contended

that the narrow abuse of discretion issue was not fully developed

until the evidence was presented at the hearing and the district

court ruled. From this perspective, only then did the State have

all of the claimed components for the narrow issue it presents.

In any event, the issue’s not being fully preserved may have

been because, despite the petition’s requesting an evidentiary

hearing, the decision to conduct one appears to have been sua

sponte, consistent with AEDPA and Rule 8 of Rules Governing Section

2254 Cases in the United States District Courts, discussed infra.

In ordering the hearing, the district court did not mention Guidry’s

request for an evidentiary hearing. Nor did Guidry mention that

request in his opposition to summary judgment.

Along this line, no authority need be cited for the well-

established rule that, after conditional habeas relief was granted,

the State was not required to move the district court to reconsider

its having ordered the hearing in order for the State to preserve

this narrow issue for review. Accordingly, based on our review of

the record, and especially because the narrow issue arose for the

most part, if not totally, through the district court’s sua sponte

exercise of its discretion to conduct the evidentiary hearing, we

will consider it.

27
 ii.

As we understand the State’s narrow challenge to the

evidentiary hearing’s being held, it is premised in large part on

the same evidence being presented in that hearing that was presented

in the two pre-trial hearings in state court on the motion to

suppress Guidry’s confession. Had this narrow issue been presented

to the district court upon its ordering the hearing to be held, the

district court could have decided whether it had merit. (Likewise,

the Dissent at 1 maintains “the district court ... [held] an

evidentiary hearing to rehear the same testimony heard by the state

court”. This is not so.) In any event, although the same witnesses

testified in district court as in state court, there was no way, of

course, for the district court to know whether testimony at the

federal hearing would be identical to that at the state hearings,

even if the same witnesses were to be called. This is demonstrated

vividly by how Detective Roberts’ testimony changed.

Because of the belated manner in which the issue has been

raised (post grant of conditional habeas relief), a far different

scenario exists. As discussed, although the evidence at the

district court hearing was, in most respects, the same as at the

state hearing, there were some significant differences. For

example, Detective Roberts testified at the district court hearing

that: prior to questioning Guidry on 7 March 1995, he contacted an

assistant district attorney to ensure there would be no conflict in

28
his doing so because Detective Roberts knew that, for persons in

Guidry’s circumstances (in jail for several days on another charge

(bank robbery)), “usually ... an attorney is appointed [for] them”;

nevertheless, for the 7 March interrogation of Guidry, he did not

know Guidry had an attorney. As another example, Detective Roberts

did recall the 15 March 1995 in-chambers conversation.

Accordingly, the factual prong for the State’s narrow issue

fails: the evidence was not the same. Arguably, therefore, there

is no merit to this issue. On the other hand, the State may be

contending that, as a matter of law, the hearing should not have

been held because, when the district court ordered the hearing in

conjunction with denying the State’s summary judgment motion, the

district court knew the same witnesses would testify at that hearing

as had testified in state court; that, without more, the district

court was required to accept the state trial court’s implied

credibility rulings.

In Guidry II at 12-14, the district court explained in great

detail why, notwithstanding the AEDPA-mandated deference owed the

state court decision, it could not, pursuant to AEDPA, determine

whether that decision was unreasonable without first conducting an

evidentiary hearing to test the state court decision. In that

regard, in the light of the summary judgment record, the district

court made the following observations about the State’s summary

judgment motion and the state court suppression hearings:

29
 [The State] argues that the testimony from
the [15 March in-]chambers episode is not as
beneficial as anticipated by Guidry’s claim.
[The State] focuses on three main factors: (1)
the police denied making the [in-chambers]
statements; (2) if the episode in chambers
indeed occurred, the motive behind the [in-
chambers] statement is unclear; and (3) the
[in-chambers] statement does not prove that
Guidry invoked his right to counsel. These
factors, however, do not detract from the
strength of Guidry’s assertion. First, while
Detective Roberts testified that no one made
the [in-chambers] statement in question, three
members of the bar testified otherwise.
Detective Roberts’ testimony in that respect is
suspect. This is especially the case as
Detective Roberts gave contradictory and
inconsistent testimony on other grounds.
Second, the fact that the motive behind the
[in-chambers] statement is unclear highlights
the inadequacies of the state review.
Respondent’s attempt to characterize the [in-
chambers] statement as a joke is pure
speculation, accentuating the need for factual
development. It is especially difficult to
ascertain Detective Roberts’ motive from the
record because he emphatically denied making
any such statement in chambers. Tr. vol. 7 at
203. Finally, while the officer making the
[in-chambers] comment did not expressly say
that Guidry had invoked his right to counsel,
the Court cannot turn a blind eye to the fact
that the comment is based on the assumption
that Guidry asked to speak to counsel. The
police would have no need to concoct a story
about getting an attorney’s permission to speak
with a client if Guidry did not request
counsel’s assistance. The [in-chambers]
comment by the police does more than enhance
Guidry’s credibility and detract from their
own, it shows that the police potentially
ignored Guidry’s right to counsel.

Id. at 13-14 (emphasis added). (The above demonstrates vividly why

the district court felt a hearing necessary; obviously, it felt it

30
could offer far more than, in the dissent’s words, “little aid in

determining whether the trial court’s factual determination was

unreasonable in light of the evidence presented”. Dissent at 4.)

Accordingly, in the light of this record, we turn to the

district court’s authority to conduct the evidentiary hearing. The

State does not challenge a district court’s discretion to conduct

an evidentiary hearing, so long as it is not violative of the

constraints imposed by AEDPA. Instead, the State claims the

district court abused that discretion, especially concerning the

state court’s credibility determination.

iii.

In the light of the narrow issue presented by the State, it is

not necessary to discuss pre-AEDPA jurisprudence in detail in order

to understand AEDPA’s constraints on a federal habeas court’s

discretion to conduct an evidentiary hearing. Well in advance of

AEDPA’s enactment in 1996, Townsend v. Sain, 372 U.S. 293 (1963),

overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), had

delineated the boundaries of a federal habeas court’s authority and

obligation to conduct evidentiary hearings. The Court determined

the circumstances under which federal habeas courts had discretion

to do so, as well as when they were required to do so. It held a

federal habeas court must conduct an evidentiary hearing if

(1) the merits of the factual dispute were not
resolved in the state hearing; (2) the state
factual determination is not fairly supported
by the record as a whole; (3) the fact-finding

31
 procedure employed by the state court was not
adequate to afford a full and fair hearing; (4)
there is a substantial allegation of newly
discovered evidence; (5) the material facts
were not adequately developed at the state-
court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the
habeas applicant a full and fair fact hearing.

Id. at 313. The Court stated that a district court had discretion

to conduct an evidentiary hearing in any case, even when none of the

above circumstances was present. Id. at 318.

Former 28 U.S.C. § 2254(d) attempted to codify the dictates of

Townsend. See 28 U.S.C. § 2254(d)(1994); see also Miller-El v.

Cockrell, 537 U.S. 322, 358-59 (2003) (Thomas, J., dissenting);

Valdez, 274 F.3d at 948-50; Joyner v. King, 786 F.2d 1317, 1321-22

(5th Cir.), cert. denied, 479 U.S. 1010 (1986). In contrast to

former § 2254(d), AEDPA greatly curtailed federal habeas court

discretion to conduct evidentiary hearings. Express restrictions

are found at 28 U.S.C. § 2254(e)(2).

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 that —

(A) the claim relies on —

(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; and

32
 (B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable fact-finder would have found the
applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2) (emphasis added). Understandably, this

standard is almost identical to the one a petitioner must satisfy

to be permitted to file a second or successive habeas application

under § 2254. See 28 U.S.C. § 2244(b)(2). Subpart (e)(2) is

recognized as a “dramatic[] restric[tion]” on “the ability of

district courts to hold an evidentiary hearing”. Spreitzer v.

Schomig, 219 F.3d 639, 648 n.1 (7th Cir. 2000), cert. denied, 532

U.S. 925 (2001).

Pursuant to its plain language, subpart (e)(2)’s hearing-bar

applies, however, only if a habeas petitioner failed in state court

“to develop the factual basis” for his claim. Moreover, “[u]nder

the opening clause of [subpart](e)(2), a failure to develop the

factual basis of a claim is not established unless there is a lack

of diligence, or some greater fault, attributable to the prisoner

or the prisoner’s counsel”. Michael Williams, 529 U.S. at 432; see

also Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000).

Restated, if a petitioner develops a factual basis for a claim in

state court (or sufficiently attempts to do so), subpart (e)(2) does

not bar an evidentiary hearing in district court.

Guidry requested, and received, an evidentiary hearing in state

court and provided ample evidence, to say the least, for the factual

33
basis for his Fifth Amendment claim. Testimony at the pre-trial

hearings — Guidry’s and that of four lawyers — more than adequately

developed that factual basis. Therefore, subpart (e)(2) did not bar

the evidentiary hearing in district court. The State conceded this

at oral argument here.

As noted, the dissent maintains the district court abused its

discretion in holding an evidentiary hearing because it did not

intend to hear “new evidence”, Dissent at 4, so there was “no

justification” for its holding a new hearing, id. at 5. Where

subpart (e)(2)’s bar does not apply, Rule 8 of the Rules Governing

Section 2254 Cases in the United States District Courts grants

district courts the very discretion the dissent would proscribe.

The version of Rule 8 in effect when the hearing was granted

provided:

If the petition is not dismissed at a previous
stage in the proceeding, the judge, after the
answer and the transcript and record of state
court proceedings are filed, shall, upon a
review of those proceedings and of the expanded
record, if any, determine whether an
evidentiary hearing is required. If it appears
that an evidentiary hearing is not required,
the judge shall make such disposition of the
petition as justice shall require.

Rule 8(a) (emphasis added). The amendment to Rule 8(a), effective

1 December 2004, makes no substantive change. The amended Rule

provides:

If the petition is not dismissed, the judge
must review the answer, any transcripts and
records of state-court proceedings, and any

34
 materials submitted under Rule 7 [allowing
district judge to “direct the parties to expand
the record by submitting materials relating to
the petition”] to determine whether an
evidentiary hearing is warranted.

Post-AEDPA, Rule 8(a) has been interpreted to vest district courts

with discretion to conduct an evidentiary hearing if not barred by

subpart(e)(2). See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.),

cert. denied 531 U.S. 957 (2000); Clark v. Johnson, 202 F.3d 760,

765 (5th Cir.), cert. denied, 531 U.S. 831 (2000).

Our court has remanded to district court, with instructions to

conduct an evidentiary hearing, despite the state court’s having

held one. See Barrientes, 221 F.3d at 770 (agreeing with State that

district court abused its discretion by granting habeas relief

without conducting evidentiary hearing where it “lacked sufficient

undisputed facts to make an informed decision” (emphasis added)).

And, in at least one instance, the State has not challenged the

federal habeas court’s discretion to conduct an evidentiary hearing,

despite the state habeas court’s having held a hearing involving the

same issue and nearly identical evidence. See Valdez, 274 F.3d at

948, n.13 (in the light of Michael Williams, State abandoned its

initial contention that the district court abused its discretion in

conducting evidentiary hearing: “The Director asserts that ... the

district court had the discretion to hold an evidentiary

hearing....”).

35
 The restriction imposed by subpart (e)(2) evinced a

“Congress[ional] intent to avoid unneeded evidentiary hearings in

federal habeas corpus”. Michael Williams, 529 U.S. at 436.

Noticeably absent from AEDPA’s restrictions, however, is the one

proposed by the State for this case. Instead, read in conjunction

with Rule 8(a), subpart (e)(2) implies a federal habeas court has

discretion to conduct an evidentiary hearing where none of the bars

apply.

The State concedes that those bars did not apply to Guidry’s

claim. The district court decided an evidentiary hearing was

required because: (1) testimony by Guidry and four lawyers — three

of whom had served as assistant district attorneys — formed the

basis for a constitutional claim that, if true, might entitle Guidry

to relief; (2) gaps, inconsistencies, and conflicting testimony were

not explained, or even mentioned, in the trial court’s findings of

fact and conclusions of law; and (3) these omissions reflected the

trial court’s failure to make crucial credibility determinations.

These quite legitimate concerns about conflicting evidence permitted

the district court, within AEDPA’s boundaries, to investigate those

conflicts so that it could rule properly on the habeas petition.

b.

In deciding this issue, we do consider implied credibility

determinations by the state court, as discussed infra. The implied

determination here, however, is that four lawyers testified falsely.

36
This conclusion is too extraordinary to avoid development through

an evidentiary hearing in district court.

Alternatively, the trial court’s implicit finding may instead

be: for the 15 March in-chambers conversation, the four lawyers

told the truth but Detective Roberts lied; but, for the 7 March

confession, Detective Roberts told the truth, but Guidry lied. In

the light of this record, it is this type of speculation — made

necessary when findings on crucial issues are “implied” — that

demonstrates the need for explicit state court findings in this

case. The district court did not abuse its discretion in conducting

the evidentiary hearing.

2.

Under AEPDA, for a “claim that was adjudicated on the merits

in State court proceedings”, habeas relief will not be granted

unless the state court’s “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.

28 U.S.C. § 2254(d)(1) and (2)(emphasis added). Such “determination

of the facts” by the state court “shall be presumed to be correct”;

the habeas petitioner “shall have the burden of rebutting the

37
presumption of correctness by clear and convincing evidence”. 28

U.S.C. § 2254(e)(1).

The State claims: the district court erroneously applied §

2254’s subpart (e)(1) (presumption of correctness to be accorded a

state court’s “determination of a factual issue” unless “rebutt[ed]

... by clear and convincing evidence”) in not accpeting the trial

court’s determinations of the facts; and this caused the district

court not to accord the deference required by AEDPA under § 2254’s

subpart (d)(2) (whether the state court’s decision “was based on an

unreasonable determination of the facts”). (The State does not

claim, in the alternative, that, even if the district court’s

subpart (e)(1) ruling is correct, its subpart (d)(2) ruling was

incorrect. Therefore, that question is not before us.)

Pursuant to subpart (e)(1), the district court found the

presumption of correctness rebutted by clear and convincing evidence

(did not accept) for at least the following two trial court findings

concerning the 7 March 1995 interrogation: that Guidry did not ask

for his attorney; and that the detectives did not inform Guidry that

his attorney gave Guidry permission to discuss the case with them.

These non-accepted state court findings necessarily rest on several

credibility determinations. In its findings and conclusions, the

trial court found Guidry was not credible but the detectives were.

But, again, the trial court was silent with respect to the testimony

by the four lawyers who testified on Guidry’s behalf. The State

38
characterizes this silence, viewed in the context of the trial

court’s findings and conclusions as a whole, as “implied”

credibility determinations against those lawyers. Citing Galvan v.

Cockrell, 293 F.3d 760, 764 (5th Cir. 2002) (holding federal court

defers to trier of fact for credibility determinations), the State

claims AEDPA proscribes the district court’s non-acceptance of the

trial court’s express and implied credibility determinations and of

other trial court findings of fact.

The State maintains: contrary to subpart (e)(1), the district

court erred in not according the state trial court’s findings the

requisite presumption of correctness to which they were entitled

because the four lawyers’ testimony cannot be the requisite clear

and convincing evidence for rebutting that presumption. The State

bases this on its assertion that the evidence found clear and

convincing by the district court is, according to the State,

essentially the same evidence that was provided — unsuccessfully —

in state court. Therefore, again according to the State, the

district court effectively substituted its credibility

determinations for those of the state trial court. As discussed,

a federal habeas court is prohibited from doing this simply because

it disagrees with the state court’s determinations. See Pondexter,

346 F.3d at 148. (The Dissent at 4-5 errs in suggesting we do not

employ this rule.) Before considering the findings by the state

39
trial court, explanation is required for why we do not consider

those by the state habeas court.

a.

In July 2000, in adopting verbatim the State’s proposed

findings of fact and conclusions of law, the state habeas court made

alternative findings of fact and conclusions of law concerning the

confession’s admissibility. Neither the State nor Guidry analyzes

these alternative findings of fact and conclusions of law, nor does

the district court mention them in its opinion. Instead, the focus

is on the trial court’s March 1997 written findings and conclusions.

Possibly, this is because we can ignore the state habeas court’s

findings on the confession issue; as that court ruled, state law

barred it from considering the issue because it had been addressed

on direct appeal. “The general doctrine ... forbids an application

for a writ of habeas corpus after direct appeal has addressed an

issue.” Gill v. State, 111 S.W.3d 211, 214 n.1 (Tex.App. –

Texarkana 2003) (holding this general rule does not apply to

ineffective assistance of counsel claim).

In any event, the state habeas court’s findings did not

conflict with the state trial court’s. Although the state habeas

court’s findings added a summary of Gottlieb’s and Duer’s testimony

at the 1996 hearing, they included no evaluation of that testimony,

no credibility determinations, and no mention of the testimony at

the 1997 hearing. Because the state habeas court’s findings were

40
in the alternative, and because that court reached the same legal

conclusion as did the state trial court and did not make any

conflicting findings or determinations, the state trial court’s

findings of fact control. Cf. Walbey v. Dretke, 100 Fed. Appx. 232,

235 (5th Cir. 2004) (unpublished) (holding state habeas court’s

“factual findings did not survive [state habeas] appellate review,

so that the district court did not err when it failed to defer to

those findings in denying habeas relief”, where the state habeas

appellate court (1) failed to adopt the habeas court’s findings and

(2) those findings were directly inconsistent with the appellate

court’s). Therefore, the district court was correct to focus on the

state trial court’s determinations of fact.

b.

When a district court considers whether to accept a state

court’s determinations of fact, including credibility

determinations, it must act, of course, in accordance with “the

respect due state courts in our federal system”. Miller-El, 537

U.S. at 340. For state court determinations of fact, this deference

is embodied in subparts (d)(2) and (e)(1). The State’s challenge

is to the district court’s application of subpart (e)(1) (state

court determinations of fact presumed correct unless rebutted by

clear and convincing evidence). Under subpart (d)(2), a state court

decision may be overturned on factual grounds only if its

determinations of fact are “objectively unreasonable in the light

41
of the evidence presented in the state-court proceeding”. Miller-

El, 537 U.S. at 340 (citing Terry Williams v. Taylor, 529 U.S. 362,

399 (2000) (opinion of O’Connor, J.)).

Again, the dissent mistakenly views our position as being

contrary to the well-established rule that the district court may

not substitute its own credibility determinations for those of the

state court simply because it disagrees with the state court’s

findings. Notwithstanding AEDPA’s requiring substantial deference

for state court determinations of fact, such

deference does not imply abandonment or
abdication of judicial review. Deference does
not by definition preclude relief. A federal
court can disagree with a state court’s
credibility determination and, when guided by
AEDPA, conclude [under subpart (d)(2)] the
decision was unreasonable or that [under
subpart (e)(1)] the factual premise was
incorrect by clear and convincing evidence.

Id. (emphasis added). Consistent with this scheme, and pursuant to

subpart (e)(1), the district court did not accept the state court’s

determinations of fact because the trial court made no findings on

considerable evidence critical to Guidry’s claim. Guidry III at 12-

15. Consequently, under subpart (d)(2), the district court

concluded the trial court’s decision “was based on an unreasonable

determination of the facts”. Id. at 15 (citing Wiggins v. Smith,

539 U.S. 510, 528 (2003)).

Guidry has challenged the state court’s failure, through

express determinations of fact, including credibility

42
determinations, to resolve evidentiary conflicts that are crucial

to his claim. According to the dissent, the district court must

defer to trial court factual determinations, even when they are

presented without explanation concerning extremely important and

conflicting evidence. On the contrary, certainly on this record,

such absence suggests an unreasonable determination; the district

court was required to review the underlying facts, even though they

were adduced at a full and fair hearing. Contrary to the dissent,

we certainly do not suggest “that a habeas petitioner can satisfy

his burden under subpart (e)(1), and thereby discredit the state

court’s factual finding, merely by pointing to a failure by the

trial court to make explicit credibility findings regarding

particular witnesses”. Dissent at 1-2.

Again, in its written findings, the trial court weighed

Guidry’s testimony against the testimony of Detectives Roberts and

Hoffman and Sergeant Billingsley; but, it omitted the testimony of

four lawyers — Duer, Gottlieb Scott, and Yarborough — that

corroborated Guidry’s. The lawyers’ testimony is crucial for

determining whether Guidry asked for his attorney and whether the

detectives stated falsely that they had spoken with that attorney

and he had stated Guidry could talk with them. The district court

did not err in its application of subpart (e)(1).

The state trial court’s omission, without explanation, of

findings on evidence crucial to Guidry’s habeas claim, where the

43
witnesses are apparently credible, brought into question whether,

under subpart (d)(2), its “decision ... was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding”. After reviewing the demeanor of Detectives

Roberts and Hoffman at the 2002 hearing, and finding them not

credible, while observing the credible testimony of the four lawyers

and Guidry, the district court, pursuant to subpart (e)(1), was in

an even better position not to accept the trial court’s findings.

B.

The district court’s findings of fact are reviewed only for

clear error; its conclusions of law and rulings on mixed issues of

law and fact, de novo. E.g., Valdez, 274 F.3d at 946. Again, the

district court granted two of Guidry’s claims: (1) his confession

was obtained in violation of his Fifth Amendment right against self-

incrimination; and (2) Gipp’s hearsay testimony against Guidry’s

interest violated his Sixth Amendment confrontation right.

1.

The district court found: Guidry invoked his right to counsel

during his interrogation by Detectives Roberts and Hoffman; and the

detectives induced Guidry’s confession by telling him, falsely, that

they had spoken to his robbery-charge-attorney, Duer, and that Duer

had authorized Guidry’s cooperation without Duer’s being present.

Guidry III at 14-15. The State contends these findings are clearly

44
erroneous because they rely on identification testimony from the

lawyer witnesses that is ambiguous at best.

There were discrepancies in the lawyers’ testimony regarding

the identity of the detectives participating in the 15 March 1995

in-chambers conversation. At the 1996 pre-trial hearing, Gottlieb

stated that, before 15 March, she had never seen the detectives

present during that in-chambers conversation and did not know their

names. And, when Detectives Roberts and Hoffman were brought into

the courtroom during that hearing in 1996, she identified the

“bigger of the two”, Detective Hoffman, as the person making the in-

chambers comments about Guidry’s interrogation. (Detective Hoffman

testified at the district court hearing in 2002 that he had never

been in those chambers.) Gottlieb testified differently at the 1997

pre-trial hearing, stating that she did not remember which detective

made the in-chambers comments, but that she thought it was the

“short one” (Detective Roberts). Moreover, at that hearing, Scott

and Yarborough identified Roberts as the detective involved in the

conversation. Yet, the State points out, neither knew Detective

Roberts’ name at the time of the conversation and identified him

only after he was singly brought into the courtroom. Further, the

witnesses were unsure about the identity of the other detective

present during the in-chambers conversation.

45
 a.

Although the 1996 and 1997 pre-trial hearings provided the

factual basis for Guidry’s claim (preventing subpart (e)(2) from

barring the 2002 district court evidentiary hearing), the district

court’s credibility determinations were made on the basis of the

2002 testimony, after the court had the opportunity to observe and

evaluate witness demeanor and credibility. Guidry III at 13-14.

The district court noted numerous contradictions in Detective

Roberts’ testimony during the 2002 hearing and conflicts between

testimony from different hearings. For example, Detective Roberts

testified at the 1997 pre-trial hearing that he had not been present

at the 15 March in-chambers conversation; at the 2002 hearing,

however, he acknowledged being present, but claimed he could not

remember the conversation. Detective Roberts offered conflicting

testimony at each hearing regarding when, and whether, he knew

Guidry had an attorney for the robbery charge. And, as noted, at

the district court hearing, he testified for the first time about

contacting an assistant district attorney, prior to questioning

Guidry, because he realized, based on Guidry’s having been in jail

for several days, that he probably had a lawyer.

After reviewing the record and the witnesses’ testimony

(“particularly their demeanor”), the district court ruled that the

detectives were not credible, but the lawyer witnesses and Guidry

were. It was well aware of the conflicts in the testimony noted by

46
the dissent. The court found that Guidry had invoked his right to

counsel, and that the detectives had told him, untruthfully, that

they had contacted his attorney, who had approved Guidry’s

cooperation. Again, the court was aware of ambiguities in the

lawyers’ testimony identifying Detective Roberts as the detective

present for the in-chambers conversation; but, these ambiguities

were resolved when, at the district court hearing, Detective Roberts

admitted to being present in those chambers. These findings are not

clearly erroneous.

b.

Edwards v. Arizona, 451 U.S. 477, 484 (1981), provides the

bright-line rule for applying the Fifth Amendment to the confession

claim: when an accused expresses his desire to speak to police only

through counsel, he is not subject to further interrogation until

counsel is made available to him, unless the accused initiates

further communications with the police. In reviewing whether a

waiver of this Fifth Amendment right is knowing and voluntary, a

court must assess whether: it was the product of intimidation,

coercion, or deception; and it was made with full awareness of one’s

constitutional rights. See Moran v. Burbine, 475 U.S. 412, 421

(1986).

The district court ruled that Guidry invoked his Fifth

Amendment right by asking, twice, to speak to his attorney. And,

as the district court noted, although Guidry later signed and

47
initialed a waiver of his rights, and received a recitation of his

Miranda rights in a subsequent videotaped walk-through of the crime

scene,

those events occurred after Guidry invoked his
right to counsel, and, according to his
credible testimony, only because Guidry
believed counsel had advised him to speak
freely with police. The police deception
caused Guidry to waive his rights under a
misapprehension of the full circumstances
surrounding that waiver.

Guidry III at 16 (emphasis in original).

The district court concluded correctly that, under these

circumstances, Guidry’s confession was not voluntary and that the

state trial court erred by not suppressing it. Therefore, pursuant

to 28 U.S.C. § 2254(d)(2), the district court concluded properly

that the state court’s adjudication of the claim was based on an

unreasonable determination of the facts. (The State contends that,

even if the confession should have been excluded, its admission was

harmless error. We disagree, as discussed infra.)

2.

On direct appeal, the State conceded that Gipp’s testimony

included hearsay (statements by Prystash) but urged it was

admissible. Guidry I, 9 S.W. 3d at 147. Part of Gipp’s hearsay

testimony concerned the following statements by Prystash against

Guidry’s interest: Prystash was going to take Guidry to the

Frattas’ home on the night of the murder; Prystash and Guidry killed

Farah Fratta; Guidry shot her in the head as she exited her vehicle;

48
after the murder, Prystash picked Guidry up in Prystash’s

automobile; after the murder, Guidry was to receive $1000 for the

murder; and, on the night of the murder, Prystash was to obtain that

$1000 for Guidry from Robert Fratta.

The district court granted habeas relief on Guidry’s claim that

Gipp’s repeating these statements by Prystash violated Guidry’s

Sixth Amendment confrontation right. Guidry III at 20. “In all

criminal prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him.” U.S. CONST. amend. VI.

Admission of hearsay statements of the type at issue violates this

clause unless the witness is unavailable and the defendant had prior

opportunity to cross examine him. Crawford v. Washington, 124 S.

Ct. 1354, 1365-66 (2004).

a.

On direct appeal, the Court of Criminal Appeals held that

Prystash’s statements against Guidry’s interest, admitted through

Gipp, were not admissible. Guidry I, 9 S.W. 3d at 149. It held:

those statements did not fall within a hearsay exception; and it was

“doubtful [they] possessed ‘particularized guarantees of

trustworthiness’ sufficient to overcome the presumption of hearsay

unreliability”. Id. at 151.

The district court agreed with this holding by the Court of

Criminal Appeals: Prystash had “every reason” to attempt to spread

the blame for Farah Fratta’s death and inculpate Guidry in the

49
murder-for-hire. Guidry III at 22. The district court concluded:

Importantly, the record gives no particular
basis upon which to gauge Prystash’s
credibility when he made those statements.
This Court will not upset the holding of the
Court of Criminal Appeals that Gipp’s hearsay-
laden testimony inculpating Guidry in the
murder violated the Confrontation Clause.

Id. Particularly in the light of the Supreme Court’s recent

decision in Crawford, the district court’s conclusion regarding the

inadmissibility of Prystash’s challenged statements was correct.

b.

Unlike the Court of Criminal Appeals, however, the district

court held admission of this hearsay testimony by Gipp was not

harmless error. Guidry’s confession having been excluded by the

district court, there was scant evidence to support his conviction,

other than Prystash’s statements admitted through Gipp. And, other

than those statements, there was no evidence showing Guidry killed

Farah Fratta for remuneration — the capital offense for which Guidry

was convicted. Id. The district court concluded: because the

hearsay testimony “served as an indispensable piece of evidence to

convict Guidry of capital murder”, it “had both a substantial and

an injurious effect in determining the jury’s verdict”. Id. (citing

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

The State contends the admission of both the hearsay testimony

and the confession was harmless error, claiming the remaining

evidence is sufficient to establish Guidry’s role in the murder:

50
two neighbors testified that they saw a black male (Guidry is black)

dressed in black clothing in the Frattas’ garage just after the

shooting; one neighbor testified that this person left the scene in

a vehicle matching the description of Prystash’s automobile; when

Guidry was arrested in early 1995, the murder weapon was in his

possession; and, when the police searched Robert Fratta’s vehicle,

they discovered an address book with Gipp’s telephone number and an

unmarked envelope containing $1050.

Along this line, in her admissible testimony, Gipp testified:

Guidry lived in an apartment next to hers, and they shared a

staircase and landing; Prystash was her boyfriend; Guidry and

Prystash talked often, with increasing frequency before the murder;

and Prystash said he was planning the murder and explained the date

selected would provide Robert Fratta with the alibi of being at

church with his children. Concerning the day of the murder, Gipp’s

admissible testimony was: she returned to her apartment between

4:00 and 4:30 p.m. to find Guidry on the staircase landing, and he

stated he was waiting for Prystash; Prystash arrived 30 minutes

later, changed his clothes, and left; she observed both Guidry and

Prystash wearing black; Prystash returned to her apartment at around

8:30 p.m., and Guidry entered his apartment around that time;

Prystash went into the bedroom and unloaded a gun which he said he

had obtained from Robert Fratta; leaving the gun in the apartment,

Prystash left an hour later, saying he had to meet Robert Fratta to

51
receive $1000; and Gipp recovered bullet casings from the trash and

recorded the name and make of the gun.

As the district court observed, however, without the confession

or Prystash’s statements implicating Guidry, there is little

evidence of Guidry’s participation in the murder. Although the

neighbors testified they observed a black male at the scene, they

could not positively identify Guidry and told police they thought

the assailant could be white. And, although Guidry had the murder

weapon in his possession when he was arrested in early 1995, this

was four months after the murder, when the gun was used in the

commission of a robbery.

Moreover, there is no evidence tying Guidry to the charged

capital offense of murder for remuneration. Under Texas law, proof

of murder for remuneration or promise of remuneration requires a

“focus ... on the actor’s intent or state of mind: Did the actor

kill in the expectation of receiving some benefit or compensation”?

Urbano v. State, 837 S.W. 2d 114, 116 (Tex.Crim.App. 1992). Of

course, this state of mind element must be proved beyond a

reasonable doubt; “[i]f the evidence at trial raises only a

suspicion of guilt, even a strong one, then that evidence is

insufficient”. Id. Although $1050 was found in Robert Fratta’s

vehicle, there is no admissible evidence tying Guidry to it.

The district court’s conclusions were correct. Without the

confession and challenged hearsay, there is insufficient evidence

52
to convict Guidry of murder for remuneration or promise of

remuneration. Because of the substantial prejudice of permitting

this contested evidence before the jury, its erroneous admission was

not harmless error. Accordingly, the district court properly

granted conditional habeas relief, pursuant to 28 U.S.C. § 2254(d).

III.

For the foregoing reasons, the judgment is

AFFIRMED.

53
 EMILIO M. GARZA, Circuit Judge, dissenting:

The majority holds that (1) the district court did not err in

its application of sections 2254(d)(2) and 2254(e)(1) of AEDPA when

it disregarded the state trial court’s finding that Howard Guidry

did not ask to speak to an attorney before confessing to murdering

Farah Fratta and (2) that the district court did not abuse its

discretion in holding an evidentiary hearing to rehear the same

testimony heard by the state court. Given the conflicting testimony

and ample evidentiary record in the state proceeding, these holdings

fail to afford to the state court’s decision the deference mandated

by AEDPA.

The majority states, with apparent approval, that “pursuant to

[28 U.S.C. § 2254(e)(1)], the district court did not accept the

state court’s determinations of fact because the trial court made

no findings on considerable evidence critical to Guidry’s claims.”

(first emphasis added). It then notes that the state trial court

“omitted the testimony of four lawyers))Duer, Gottlieb, Scott, and

Yarborough. . .” in its written findings, states that this testimony

“is crucial for determining whether Guidry asked for his attorney”

and, without further explication, concludes that “[t]he district

court did not err in its application of subpart (e)(1).” Thus,

under the majority’s analysis, the trial court’s failure to

explicitly address the attorneys’ testimony in its findings of fact

apparently permitted the district court to disregard the presumption

of correctness that would otherwise have attached to the state

court’s conclusion that Guidry did not ask to speak to his attorney.
 Section 2254(e)(1) provides that “a determination of a factual

issue by a state court shall be presumed to be correct” and that the

petitioner “has the burden of rebutting the presumption of

correctness by clear and convincing evidence.” I find nothing in

this language to support the proposition, seemingly endorsed by the

majority, that a habeas petitioner can satisfy his burden under

subpart (e)(1), and thereby discredit the state court’s factual

finding, merely by pointing to a failure by the trial court to make

explicit credibility findings regarding particular witnesses.1 The

question before this Court is not whether the state court adequately

addressed all of the testimony it heard in its findings of fact, but

whether Guidry overcame by clear and convincing evidence the

statutorily-mandated presumption that the state court’s

finding))that Guidry did not ask to speak to his attorney before

confessing to the murder of Fratta))was correct.

The majority notes that Roberts’ testimony before the state

court contained contradictory testimony about whether he knew Guidry

had counsel2 and that the testimony of the three attorneys about

1
This court has previously held that the presumption of correctness that attaches to state
court findings of fact under AEDPA applies even in cases where the habeas petitioner was denied
a full and fair hearing in state court. Valdez v. Cockrell, 274 F.3d 941, 942 (5th Cir. 2001). It
seems to me inconsistent to now suggest that the AEDPA-mandated presumption of correctness
is nevertheless inapplicable where the petitioner shows that, while he was granted a full and fair
hearing and the state court explicitly made the factual finding now being contested, the state court
failed to articulate credibility findings regarding witness testimony that the federal court found
sufficiently troubling.
2
Both detectives, however, consistently maintained that Guidry never asked to speak to
his lawyer.

-55-
Roberts’ subsequent in-chambers statement, if believed, supports

Guidry’s version of events and undermines Roberts’ credibility. But

the three attorneys’ testimony suffered from its own weaknesses.

In the first state evidentiary hearing, Gottlieb testified that she

stated to two police officers that Guidry had an attorney and that

the officers replied that they had “talked to the attorney and

gotten permission to talk to Mr. Guidry before [they] took him out

to save his statement, make a statement and to give [them] a tour

of the scene of the crime.” Gottlieb identified Hoffman (the

“bigger of the two”) as the one who made the statement. At the

second state evidentiary hearing, however, Gottlieb testified that

Scott, not she, was the one who asked about the confession and

identified Roberts (“the short one”) rather than Hoffman as the

officer who claimed that they had received permission from Guidry’s

attorney. Scott, in turn, testified that supervisor Danny

Billingsly, not Hoffman, was the second officer present during the

conversation. Scott also testified that Roberts might have been

joking or “smarting off” when he made the statement.3

Whether Guidry asked to speak to his attorney necessarily turns

on whose version of events the fact finder finds credible))Guidry

or the detectives who questioned him. The credibility of the

detectives’ testimony, in turn, depends in part on the credibility

of the three attorneys’ recollection of the alleged in-chambers

3
The state court also noted that Guidry admitted to “habitually being cooperative” with
police.

-56-
conversation. If Roberts told the three attorneys that he had

obtained permission for Guidry’s attorney before questioning Guidry

and if he intended that statement to be believed, then those facts

strongly support Guidry’s version of the events preceding his

confession. On the record before us, however, those factual

conclusions are not compelled in light of the inconsistent testimony

of witnesses on both sides. See Schlesinger v. Herzog, 2 F.3d 135,

139 (5th Cir. 1993) (“[W]here the court’s finding is based on its

decision to credit the testimony of one witness over that of

another, that finding, if not internally inconsistent, can virtually

never be clear error.”); Miller v. Fenton, 474 U.S. 104, 114 (1985)

(“When. . .the issue involves the credibility of witnesses and

therefore turns largely on an evaluation of demeanor, there are

compelling and familiar justifications for. . .according [the trial

court’s] determinations presumptive weight.”). Accordingly, Guidry

has not shown by clear and convincing evidence that the trial

court’s determination that he did not ask to speak to his lawyer was

incorrect and there is therefore no legal basis to hold that the

trial court’s decision was based upon an unreasonable determination

of the facts in light of the evidence presented.

Again focusing on the trial court’s failure to make explicit

credibility determinations regarding the attorneys’ testimony, the

majority concludes that the implied credibility determinations of

the trial court are “too extraordinary to avoid development through

-57-
an evidentiary hearing in district court” and therefore holds that

the district court did not abuse its discretion in ordering such a

hearing. I disagree. The district court had before it an ample

record with which to determine whether the trial court’s decision

was based on an unreasonable determination of the facts in light of

the evidence presented. As the majority acknowledges, “Guidry

requested, and received, an evidentiary hearing in state court and

provided ample evidence, to say the least, for the factual basis of

his Fifth Amendment claim. Testimony at the pre-trial

hearings. . .more than adequately developed that factual basis.”

In other words, the state court allowed Guidry every opportunity to

develop his version of the events surrounding his confession and

there is no suggestion that Guidry was prevented from introducing

any evidence helpful to his claim. Given the extensive development

of the evidence in state court and the apparent contradictions in

the testimony of many of the witnesses, an additional evidentiary

hearing could offer little aid in determining whether the trial

court’s factual determination was unreasonable in light of the

evidence presented.

To the contrary, the record supports a holding that the

evidentiary hearing was an abuse of discretion because it appears

that the district court used the proceeding not to hear new evidence

but instead to substitute impermissibly its own credibility

determinations for those of the state court. After the hearing, the

district court explained “I need to be able to make some credibility

-58-
determination on my own and figure out what’s going on. Now that

I have heard the evidence, I guess it’s time for me to look at

basically the same issues again but with a little more knowledge.”

The district court later rejected the State’s argument that it had

to defer to the state court’s credibility determinations so long as

they were supported by the record because “[e]ach of the cases cited

by the [State concerned] a district court’s inability to reconsider

a state court’s credibility determination on the basis of the record

alone.” Here, the court noted, its “credibility evaluation focuses

not on the cold record, but on the same live witnesses, and

presumptively the same demeanor, as was presumably considered by the

trial court. This Court’s evaluation of the witnesses’ credibility,

therefore, extends beyond a mere review of whether the record

supports the state court determination.”

A district court may, in an appropriate case, reject the

factual findings and credibility determinations of a state court.

See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). But the court

may not substitute its own credibility determinations for those of

the state court simply because it disagrees with the state court’s

findings. See Pondexter v. Dretke, 346 F.3d 142, 147-49 (5th Cir.

2003) (finding that the district court “failed to afford the state

court’s factual findings proper deference” by “rejecting the state

court’s credibility determinations and substituting its own views

of the credibility of witnesses”). In this case, the trial court’s

factual conclusion turned on credibility determinations. There were

-59-
weaknesses in the testimony of witnesses on both sides, and the

trial court’s factual determination made clear that it credited the

detectives testimony that Guidry had not asked to speak to an

attorney. Because the evidentiary record was more than adequate,

and because there was insufficient justification for rejecting the

factual finding and accompanying implied credibility determinations

of the district court, there was no justification for the district

court’s sua sponte decision to conduct its own evidentiary hearing.

Accordingly, I would hold that the district court abused its

discretion. See Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir.

1997) (holding that the district court did not abuse its discretion

in denying a request for an evidentiary hearing to hear the same

evidence heard in the state habeas proceeding and stating that

“[t]his is not a valid reason for an evidentiary hearing in district

court”); Guerra v. Johnson, 90 F.3d 1075, 1078 (5th Cir. 1996).

For the above stated reasons, I respectfully dissent.4

4
Because I conclude that admission of Guidry’s confession did not violate his Fifth
Amendment right, and because his confession along with other evidence establishes that Guidry
murdered Fratta in exchange for a promise of $1,000, I would find that admission of Mary Gipp’s
testimony did not have a substantial and injurious effect in determining the jury’s verdict. See
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

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