REVISED July 14, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30958

ALBERT WOODFOX,

Petitioner-Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

Before KING, STEWART, and SOUTHWICK, Circuit Judges.

KING, Circuit Judge:

In this appeal from the district court’s grant of a writ of habeas corpus, we

are confronted by a crime that is now nearly forty years old and the problems

that arise when a defendant is re-tried decades after an initial conviction.

Petitioner-Appellee Albert Woodfox, an inmate in the Louisiana State

Penitentiary at Angola, Louisiana, was originally convicted in 1973 for the

murder of prison guard Brent Miller. His conviction was eventually overturned

in state court post-conviction proceedings, but the State re-indicted him and

proceeded to a second trial in 1998. By that time many of the witnesses had died

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2010

Lyle W. Cayce

Clerk
No. 08-30958

2

and physical evidence had been lost. The State and the defense were both forced

to present the prior recorded testimony of witnesses from the first trial. 

Not surprisingly, the jury was presented with two portrayals of Woodfox,

one as a hardened offender who advocated racial violence and force against the

prison officials, and a second as a protector of weaker inmates and an advocate

for prison reform who was targeted and framed for the crime due to his political

activism. Although presented both with witnesses who swore that Woodfox was

the killer and other witnesses who swore he had an alibi, the jury resolved the

matter in favor of the State and again convicted Woodfox of murder. That

conviction is the subject of the instant federal habeas proceeding.

The district court held that Woodfox’s 1998 trial counsel rendered

ineffective assistance in several respects. It held that counsel should have

objected on confrontation grounds to the reading of the 1973 testimony from

inmate Hezekiah Brown, who provided an eyewitness account incriminating

Woodfox and who had died before the 1998 trial. The court believed the prior

testimony was inadmissible because prior to the first trial, the State had

suppressed information showing that Brown may have been lying about

promises from prison officials in return for his testimony. The district court also

faulted counsel for failing adequately to investigate or to object to other physical

and testimonial evidence. The State of Louisiana, acting through the

Respondent-Appellant Warden Burl Cain, appeals.

We conclude that Woodfox’s confrontation-based argument about Brown

is precluded from federal review because it was not adequately exhausted in

state court, and that it also fails on the merits. As we explain below, we

conclude that the deferential standard of review applied to state habeas

decisions under the Antiterrorism and Effective Death Penalty Act mandates

that we REVERSE the district court’s judgment.
No. 08-30958

3

I. Factual and Procedural Background

In 1972, the Louisiana State Penitentiary was a segregated institution

prone to violence and harsh living conditions. The record suggests that

stabbings occurred among the inmate population on a regular basis.

Homosexual rape was prevalent, as was the presence of so-called “gal-boys,”

inmates who acted like women in homosexual relationships and who were traded

as slaves by stronger, predator inmates. The social and political unrest of the

early 1970s that was common in the entire country added to the tension of an

already hostile prison environment. The relevance of all these facts to this case

will become clear later in this opinion. Albert Woodfox was an inmate at the

penitentiary serving a fifty-year sentence for armed robbery.

The prison’s medium security area included four dormitory groups (each

with four dormitories), known as Pine, Hickory, Walnut, and Oak, that housed

inmates in a barracks-like setting. Woodfox lived in the Hickory 4 dorm. Brent

Miller, a young, well-liked prison guard, was one of two correctional officers

assigned to the four Pine dormitories. The prison at that time was understaffed

with correctional officers, and inmates often conducted themselves with a

minimal number of guards supervising them. For example, prisoners in medium

security were allowed a certain amount of autonomy in deciding whether or not

to remain in their dorms or to go to breakfast in the dining hall. 

On April 17, 1972, Miller stayed behind in the dorm area while fellow

correctional officer Paul Hunt escorted the inmates from Pine down the “walk”

to the dining hall for breakfast. The inmates were initially unable to gain

entrance to the dining hall because the inmate servers refused to serve breakfast

in protest of the hours they were required to work. The disturbance was known

as a “buck.” The prisoners were held out of breakfast while the warden

attempted to resolve the buck. Some inmates returned to their dormitories,
No. 08-30958

4

others remained outside. After the grievance was resolved, a second call to chow

was made.

Sometime between 7:30 a.m. and 8:00 a.m., while all this was going on,

Miller entered the Pine 1 dormitory where inmate Hezekiah Brown kept a small

coffee pot. Brown typically remained in the dorm for breakfast and often shared

coffee with the guards. Upon returning from breakfast a short time later,

Correctional Officer Hunt found Miller’s body lying in a pool of blood in the

anteroom of the dorm. Miller had been stabbed 32 times.

The prison immediately went into lockdown. Correctional officers began

searching the dormitory area and found a homemade prison knife covered with

wet blood hidden in a vent underneath Pine 1. Officers called in the West

Feliciana Parish Sheriff’s Department and the state police. A physical

examination of the crime scene yielded four finger prints that were found by

dusting the dorm wall by the water cooler near Miller’s body. An apparent

bloody finger print was also visible on the door frame. Prison officials

coordinated an investigation with the Sheriff’s Department, which commenced

questioning of several hundred inmates who were in the prison yard or near the

scene at the time of the murder. 

Sheriff Bill Daniel and Deputy Thomas Guerin conducted much of the

questioning of individual prisoners in the prison’s clothing room as the inmates

waited for hours in line outside. They eventually questioned Woodfox, who

denied any knowledge of the murder and claimed he was eating breakfast at the

time. Sheriff Daniel testified that he seized Woodfox’s clothing—including a

green jacket, blue pants, and brown shoes—because of small, suspicious stains

that might have been blood. Daniel bagged these items for evidence and sent

them to the state police crime lab for further examination. A state criminologist

testified that a small stain on the jacket was found to be human blood but there

was an insufficient amount to determine the blood type. The small stains on the
No. 08-30958

5

pants and shoe were also determined to be blood, but the quantity was so small

that the State’s expert could not determine if it was human or animal blood.

This was significant because Woodfox worked in the kitchen, where he could

have come into contact with animal blood. Further, neither the fingerprints on

the wall nor the bloody print found at the scene was matched to Woodfox or any

other person at the prison.

The State’s case against Woodfox was built largely on eyewitness

testimony. The most damaging information came from Hezekiah Brown, who

testified at Woodfox’s first trial in 1973. Because Brown was deceased by the

time of the second trial in 1998, his prior testimony was read into the record.

Brown was a 66-year-old inmate who had previously been on death row but had

his sentence commuted to life prior to the events described herein. He initially

told investigators on April 17, 1972, that he knew nothing aboutthe murder and

claimed to have an alibi placing him in the blood plasma unit at the time of the

crime. Brown was questioned a second time on April 19, however, and gave a

very different story.

Brown testified at the 1973 trial that he was in the Pine 1 dorm when

Miller came in to have coffee and sat down on Brown’s bed, which was the closest

bunk to the door. As Brown was plugging in the coffee pot, he heard scuffling

behind him. He looked up and saw four inmates had entered: Woodfox, Herman

Wallace, Gilbert Montegut, and Chester Jackson. Brown testified that the men

held handkerchiefs over their faces but that he was able to recognize them.

Woodfox suffers from a skin condition that causes blotching and rendered him

identifiable.

According to Brown, Woodfox grabbed Miller from behind, lifted him up

off the bed, and stabbed him in the back with a knife. He testified that the other

inmates also grabbed Miller and began “jugging on him.” As they repeatedly
No. 08-30958

6

stabbed Miller, the inmates pulled him into the small lobby area at the front of

the dorm where they left him as they fled out the door.

Brown testified that he was terrified the inmates were also going to kill

him. As he watched Miller dying on the floor, Brown, who was black, believed

it imperative that he not be present when the white guard was found. He

followed the fleeing inmates out the door but soon realized he was still wearing

his pajamas. He therefore returned to change his clothes and then went to the

blood plasma unit to establish an alibi.

Sheriff Daniel testified that after Brown gave his second statement, he

prepared arrest warrants for Woodfox, Wallace, Montegut, and Jackson.

Wallace was convicted after Woodfox’s first trial, and Jackson pleaded guilty to

manslaughter. Montegut was acquitted, however.

How prison officials came to interview Brown the second time and the

circumstances under which he incriminated Woodfox were disputed at trial.

Brown averred in his 1973 testimony that he did not know how prison officials

knew that he had information about the murder but that no one threatened him

or made promises in return for his testimony. At the 1998 trial, Warden C.

Murray Henderson testified that he had promised to protect Brown from inmate

retribution if he provided information and to help Brown with a pardon

application. As discussed in greater detail below, the Warden’s testimony is not

entirely clear as to what was said and when, but the Warden did apparently

promise some assistance before Woodfox’s first trial. Brown was never

questioned aboutthe Warden’s promises because defense counsel in 1973 did not

know about them. In any event, Henderson also testified that he was led to

Brown by another inmate who lived in the Pine 1 dorm, Leonard “Specs” Turner.

Turner was due to be released from his state sentence on the day after the

murder. Henderson knew that Turner had not gone to breakfast on the

morning of the killing and threatened to stop Turner’s parole if he did not tell
No. 08-30958

7

what he saw in Pine 1. According to Henderson, Turner said that he did not see

anything but that Brown was in the dorm and must have seen what had

occurred. 

The State called Turner as a witness at the 1998 trial. He testified that

he was in the dorm and saw Miller come in but that he left about five minutes

later and saw nothing. He did not remember telling Henderson that Brown had

been present. Turner also did not remember having a meeting with Captain C.

Ray Dixon the night before his release, and he denied telling Dixon that he saw

Woodfox kill Miller.

The State later called Dixon, who testified that Turner often acted as his

informer about events on the yard and that he spoke with Turner about Miller’s

killing the night before Turner was released. Dixon said Warden Hayden Dees

told him that Warden Henderson wanted Dixon to speak with Turner before

Turner left the prison. According to Dixon, Turner wanted to keep his

involvement secret and did not want to testify or sign any statements. Dixon

testified that Turner told him what he knew about the murder and that Dixon

wrote down what Turner said. Dixon identified an unsigned statement as being

in his handwriting, but he had no independent recollection of what Turner had

told him. Dixon was permitted to read from the statement to impeach Turner.

The statement indicated that Turner said he saw Woodfox enter Pine 1 wearing

a black cap and holding a handkerchief. Turner said Woodfox grabbed Miller in

a “mugger hold”from behind and stabbed him as the other inmates helped in the

struggle. The trial court gave a limiting instruction that the statement should

be considered only to discredit Turner and should not be considered as evidence

that the statement was true.

The State also introduced other testimony in support of Brown’s account

of the murder. First, the State called Joseph Richey, a former inmate at Angola

who had lived in Pine 4 dorm across the walk from Pine 1. Richey testified that
No. 08-30958

8

after the buck in the dining hall he went back to this dorm and slept for about

an hour. After he awoke he saw Miller enter Pine 1 while Richey was brushing

his teeth. Because he wanted to resume a previous conversation with Miller

about Viet Nam, Richey began to leave his dorm. From his doorway, he saw

Turner leave Pine 1 at a fast pace. Richey then observed Woodfox leave Pine 1

also at a fast pace and bump into a trash cart that was being pushed down the

walk by another inmate named Fess Williams. Woodfox was not wearing a hat

or gloves. Richey saw Montegut, Wallace, Jackson and then Brown exit the

dorm, and he initially thought they were going to chow. He noticed that Brown,

who was wearing pajamas, turned and went back in the dorm, and then came

out again wearing his clothes and headed toward the kitchen. He thought this

was unusual because Brown usually did not go to breakfast. Richey proceeded

to Pine 1 where he saw Miller’s body. When he saw all the blood, Richey thought

the inmates had gone to get medical help for Miller, and he waited on the side

of the Pine dorm smoking a cigarette.

Richey testified that when he was first interviewed about the murder he

gave a “generic” answer about seeing Miller and waiting for help to arrive, but

that about a month later he was interviewed again by Warden Dees and Captain

Dixon and that he gave a statement identical to his testimony. On crossexamination, defense counsel questioned Richey about that prior statement,

pointing out that, unlike his trial testimony, Richey had said that the four

inmates actually passed him as he was entering the Pine 1 dorm and looked like

they expected Richey to “walk into something.” Richey testified that his previous

statement contained errors made by the typist, who confused the questions being

asked with his answers. He also testified that the statement was later revised

but that he signed it without reading it.

The State also presented previously recorded testimony from inmate Paul

Fobb. As with Brown, Fobb testified at the 1973 trial but had died prior to the
No. 08-30958

9

1998 re-trial. His previous testimony was also read into the record. Fobb had

severe vision problems due to glaucoma in his left eye and an accident with a

cotton stick that rendered him blind in his right eye. Fobb claimed, however,

that he could see well enough in April 1972. Fobb first testified that during that

month he had witnessed a confrontation between Miller and Woodfox where

Miller had ordered Woodfox out of the Pine dorm area because Woodfox did not

live there. About a week before Miller was killed, Fobb heard Woodfox say that

Miller was “always messin’ with him.” Woodfox then said that he “had fifty

years” and “ain’t gonna be kicked,” and he threatened “to fix that little bitch.”

Fobb continued that on the Sunday before the murder he heard Woodfox and

others plotting to stage the buck so that the guards would be distracted and

leave the walk, leaving only one guard in each dormitory area. On the morning

of April 17, Fobb was on his way to the blood plasma unit when he saw Woodfox

enter Pine 1. Fobb testified that he saw Woodfox exit the dorm five to ten

minutes later and throw a rag into the Pine 4 dorm. He said he was “stunned”

at seeing Woodfox. Although Fobb identified Woodfox leaving Pine 1, he testified

on cross-examination that he did not see anyone else.

The State presented further evidence to suggest a motive for Woodfox in

the killing. First, James Stevens, who was the Director of Prison Classifications

in 1972, testified that a woman had been removed from Woodfox’s approved

visitor list after prison officials intercepted a letter Woodfox had written to the

woman stating that “all correctional officers were pigs and that all white races

should be killed.” John Sinquefield, the state prosecutor who prosecuted

Woodfox in 1973, also testified about an encounter he had with Woodfox in a

New Orleans courtroom where Woodfox purportedly raised his shackled hands

to spectators and said, “I want all of you to see what these racist, facist pigs have

done to me.” Finally, the State presented a letter Woodfox had written after he
No. 08-30958

10

was accused of Miller’s murder in which he spelled the word “America” with

three “k”s.

While the State painted Woodfox as a violent and militant offender, the

defense theory was that Woodfox was singled out by prison officials because of

his political activism in the Black Panther Party and his efforts to obtain prison

reform, especially in the protection of victims of sexual predation. His theory

was that prison officials rushed to judgment because he and the other accused

inmates were perceived as “troublemakers.” Woodfox elicited testimony from

Warden Henderson, who had come to Angola from out of state with designs for

prison reform, that established prison officials, such as Warden Dees, resented

his presence, were opposed to court orders for reform, and did not conduct a nonbiased investigation of Miller’s murder. Woodfox suggested that Warden Dees

had immediately made up his mind about who had committed the murder and

confined him and the other three suspects in immediate “lockdown.” His theory

was that prison officials such as Dees “put words” in the mouths of the inmates

who incriminated him.

Woodfox presented as an alibi witness the 1973 trial transcript of Everett

Jackson, an inmate who said Woodfox was with him at breakfast. He also

presented live testimony from Clarence Sullivan, an inmate who worked in the

kitchen and said he saw Woodfox at the dining hall. Sullivan admitted he had

never told anyone about this until speaking with defense counsel prior to trial,

however, because at the time in 1972 he had been planning an escape and did

not want to get involved. Woodfox further presented a transcript of the 1973

testimony of Fess Williams, who denied seeing anyone come out of Pine 1 and

denied that Woodfox had bumped into his trash cart that morning, thereby

contradicting the testimony of Richey.

Woodfox also testified in his own behalf. He contended that after the buck

in the dining hall he went to breakfast between 7:30 a.m. and 7:50 a.m. He
No. 08-30958

11

claimed that after eating he went with Everett Jackson to get some legal papers

and returned to his own dorm in Hickory 4 between 8:15 a.m. and 8:30 a.m.

when all the inmates were ordered out onto the walk for questioning. He

claimed that prison officials seized his clothes. Contrary to the testimony of

Sheriff Daniel that Woodfox was wearing a green jacket, blue pants, and brown

shoes that were bagged and labeled for evidence, Woodfox testified that he was

wearing blue jeans, a grey sweatshirt, and rubber boots that he wore because he

worked in the kitchen. He testified that the clothing was simply thrown into a

pile in the corner. Woodfox also testified that the prison administration was

blatantly racist, that Sheriff Daniel had pointed a gun at his head and

threatened to shoot him, and that the State’s witnesses lied because of their

hatred of him for trying to stop the sexual attacks atthe prison. He claimed that

both Brown and Richey were sexual predators, although there was no evidence

corroborating this testimony.

The jury found Woodfox guilty of murder, and he was sentenced to a

mandatory term of life in prison without the benefit of parole, probation, or

suspension of sentence. Woodfox unsuccessfully appealed his conviction through

the state appellate process. He subsequently filed a timely state application for

post-conviction relief, raising numerous claims of error. The state trial court

initially denied the petition without obtaining a response from the State. The

Louisiana First Circuit Court of Appeal granted a writ of review, however, and

remanded with instructions that the trial court obtain an answer to the

application from the prosecution. The State thereafter filed its response, and the

trial court again denied the application. The trial court held that the application

was without merit, and it also adopted the State’s response as its written

reasons for denial. The state appellate court and the Louisiana Supreme Court

both denied applications for writs without written opinions.
No. 08-30958

1

In the alternative, the magistrate judge concluded that Woodfox’s § 2254 petition

presented a prima facie case of discrimination in the selection of the grand jury foreperson but

that an evidentiary hearing would be necessary to allow the State an opportunity to present

rebuttal evidence. In light of her conclusions with respect to Woodfox’s ineffective assistance

claims, the magistrate judge did not conduct a hearing, and instead recommended that the

matter be referred for a hearing if the district court disagreed with the magistrate judge’s

resolution of those claims. The ruling on discrimination in the grand jury foreperson selection

12

Woodfox then timely filed the instant petition pursuant to 28 U.S.C.

§ 2254. The magistrate judge issued a report recommending that relief be

granted on several grounds. The magistrate judge determined first that counsel

rendered ineffective assistance by failing to object to the admission of Brown’s

1973 testimony atthe 1998 trial. The magistrate judge reasoned that Woodfox’s

1973 counsel was unable to question Brown about promises made to him by

Warden Henderson because the State had suppressed that information, and

therefore the admission of the testimony in 1998 violated the Confrontation

Clause. The magistrate judge also determined that Woodfox’s trial counsel had

been ineffective for (1) failing to object to testimony by former prosecutor John

Sinquefield vouching for Brown’s demeanor and credibility when testifying at

the 1973 trial; (2) failing to investigate and obtain expert witnesses to test the

bloodstained clothing or review the tests performed by the State’s expert; (3)

failing to obtain an expertto evaluate the bloody printfound atthe murder scene

and to verify or refute the conclusion of the State’s expert that the print might

be a palm print rather than a finger print; (4) failing to investigate and present

medical evidence concerning witness Paul Fobb’s blindness that would have

discredited Fobb’s testimony; and (5) failing to object to the State’s referral to

inadmissible hearsay statements contained in a prior statement of Chester

Jackson. The magistrate judge determined that the foregoing deficiencies of

Woodfox’s counsel prejudiced the defense and undermined confidence in the

outcome of the 1998 trial. The magistrate judge therefore recommended that

Woodfox’s conviction be vacated and the case remanded to the state court.1
No. 08-30958

has not been appealed and is not before us.

2 Because the district court adopted the magistrate judge’s report as its own opinion,

we hereinafter refer to the findings and conclusions of the magistrate judge as those of the

district court.

13

The district court adopted the magistrate judge’s report and granted the

writ of habeas corpus. The State now appeals. It contends that the district

court,through adoption ofthe magistrate judge’s report, failed to afford the state

habeas proceedings the proper measure of deference and incorrectly determined

that trial counsel rendered ineffective assistance.2

II. Standard of Review

On review of the district court’s grant of habeas relief, we review issues of

law de novo and findings of fact for clear error. Fratta v. Quarterman, 536 F.3d

485, 499 (5th Cir. 2008). A claim of ineffective assistance of counsel presents a

mixed question of law and fact. Richards v. Quarterman, 566 F.3d 553, 561 (5th

Cir. 2009). If the district court’s findings of fact are not clearly erroneous, we

will independently apply the law to the facts as found by the district court. Id.

Woodfox’s § 2254 petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). The AEDPA requires that federal courts

defer to a state court’s adjudication of a claim if the claim has been adjudicated

on the merits in the state court proceedings unless the state court decision was

(1) “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court,” or (2) “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).

A state court decision is “contrary to” federal precedent if it applies a rule

that contradicts the governing law set forth by the Supreme Court or if it

involves a set of facts that are materially indistinguishable from a Supreme

Court decision but reaches a result different from that Court’s precedent.
No. 08-30958

14

Woodward v. Epps, 580 F.3d 318, 325 (5th Cir. 2009). “A state court

unreasonably applies clearly established federal law as determined by the

Supreme Court if it identifies the correct governing principle established by the

Supreme Court, but unreasonably applies that principle to the facts of the case.”

Rogers v. Quarterman, 555 F.3d 483, 488–89 (5th Cir. 2009). An unreasonable

application of federal law is different from an incorrect or erroneous application

of the law. Id. (citing Williams v. Taylor, 529 U.S. 362, 409–10 (2000)). “The

question under AEDPA is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550

U.S. 465, 473 (2007). Furthermore, we review for objective reasonableness the

state court’s ultimate legal decision, not necessarily the state court’s opinion and

legal reasoning for its ultimate decision. Neal v. Puckett, 286 F.3d 230, 246 (5th

Cir. 2002) (en banc).

III. Discussion

The State argues that the district court failed to apply the AEDPA’s

heightened deferential standard of review to Woodfox’s ineffective assistance

claims. It notes that the court reviewed de novo Woodfox’s claim regarding

counsel’s failure to challenge the 1998 indictment and testimony of Brown on

Confrontation Clause grounds, and then carried that standard of review forward

when considering Woodfox’s remaining claims. We agree that the district court

failed to apply the proper degree of deference to the state court’s denial of relief

on Woodfox’s confrontation-based claim, but we pause first to consider the

threshold issue whether Woodfox properly exhausted that claim for relief. See

Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997) (“A state prisoner normally

must exhaust all available state remedies before he can apply for federal habeas

relief.”). We raise this issue sua sponte because, as discussed further below, we
No. 08-30958

3 Rather than begin with exhaustion, the dissent considers it as part of an analysis of

how the state court resolved Woodfox’s claim, and it asserts that a threshold issue is whether

the state court resolved the claim on the merits. See Dissenting op. at 3–4. But exhaustion

is of primary import because federal habeas relief may not be granted without it. See Nobles,

127 F.3d at 419; § 2254(b)(1)(A). We assume exhaustion later as part of our alternative

analysis of the substantive versus procedural issue in Part III.A.2 below.

15

conclude that the State has not expressly waived it. See Tigner v. Cockrell, 264

F.3d 521, 526 n.3 (5th Cir. 2001).

A. Ineffective assistance for failing to raise a confrontation

objection

1. Exhaustion

A federal court may not grant habeas relief unless “the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A). Exhaustion requires that the prisoner “have fairly presented the

substance of his claim to the state courts.” Nobles, 127 F.3d at 420.

“Determining whether a petitioner exhausted his claim in state court is a caseand fact-specific inquiry.” Moore v. Quarterman, 533 F.3d 338, 341 (5th Cir.

2008) (en banc). Therefore, in order to determine whether Woodfox properly

exhausted his confrontation-based claim, it is necessary to examine in detail

Woodfox’s federal claim compared with his state claim.3

Woodfox’s federal § 2254 petition characterized his claims as ineffective

assistance. He specifically challenged counsel’s failure to contest on

confrontation grounds the admission of Brown’s 1973 testimony at the 1998 trial.

Woodfox’s theory was thatthe State suppressed the factthat Warden Henderson

promised to help Brown get a pardon in return for his testimony, thereby

denying Woodfox the opportunity to impeach Brown in 1973 and rendering the

reading of that prior testimony inadmissible in 1998. Woodfox, who was

represented by counsel in both federal and state court, argued the claim in

federal court this way:
No. 08-30958

4 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that prosecution must produce

evidence favorable to the accused that is material to guilt or punishment); Giglio v. United

States, 405 U.S. 150, 154 (1972) (holding that Brady extends to impeachment evidence).

16

Brown’s prior testimony runs far afoul of the requirements of the

[C]onfrontation [C]lause, not only because the jury was unable to

assess his demeanor firsthand, but because Mr. Woodfox was unable

to impeach and otherwise cross examine this critical witness

regarding, among other things,the promise of a pardon made to him

by the head warden in exchange for his testimony. Counsel’s failure

to pursue this challenge to retrial cannot be defended. Because the

trial court would have had no choice but to uphold such a challenge,

prejudice is established.

Woodfox’s claim thus presented a hybrid of Brady/Giglio principles4 and

an inadequate opportunity for cross-examination, layered within an ineffective

assistance claim.

In his state court application for post-conviction relief, which is

voluminous and disjointed, Woodfox focused on the perceived unfairness of being

subjected to a re-trial after the passage of so many years because of the

intervening death of several witnesses and the loss of physical evidence.

Woodfox presented fifty pages of discussion of his version of the “facts,” broken

into subsections dealing with particular trial witnesses. With respect to

Hezekiah Brown, Woodfox discussed Brown’s 1973 testimony and its alleged

deficiencies. He stated that “[s]ince the 1996 death of Brown—and with him, the

opportunity for Mr. Woodfox to meaningfully cross-examine him—a vast amount

of impeachment evidence has come to light.” He then spent several pages

discussing the Warden’s promise to Brown, letters the Warden wrote on Brown’s

behalf after the 1973 trial, the alleged incentives Brown later received, and the

testimony and out-of-court statements of other witnesses suggesting that Brown

“was a liar” and unworthy of belief. Woodfox concluded: “Brown’s testimony,

with its contradictions and his inability to answer numerous key questions, is

highly dubious. When coupled with the impeachment evidence . . . it is simply
No. 08-30958

17

unbelievable.” Woodfox did not argue that counsel was ineffective for failing to

challenge on confrontation grounds the reading of Brown’s testimony in 1998,

focusing instead on the alleged unreliability of Brown’s testimony.

Woodfox then presented 90 pages of specific “claims for relief,” none of

which asserts that counsel failed to object to Brown’s 1998 testimony. Instead,

Woodfox’s state application (1) cites and discusses the general principles of

Brady, Giglio, and Kyles v. Whitley, 514 U.S. 419 (1995); (2) asserts that had he

not been denied certain exculpatory evidence (unrelated to Brown), “he could

have refuted the State’s case at every turn”; and (3) argues that counsel should

have sought to quash the indictment because the 21-year delay between

indictments denied him due process and confrontation, in part because of the

intervening death of Brown.

As the district court noted, this last argument appears akin to a speedy

trial claim. Woodfox’s state habeas application asserted that the 1998 trial

counsel was ineffective for failing to quash the 1998 indictment, noting that

more than 20 years had passed since the first indictment. The argument reads

as follows:

[Counsel] should have filed a motion to quash the indictment on this

ground. The delay between the first and second indictment was 21

years. The length of this delay is presumptively oppressive given

the fact that Mr. Woodfox was in state custody. The reason for the

delay was the failure of the state to bring his case before a legal

grand jury. The delay of more than two decades has adversely

affected his defense. The key witness against him[,] Hezekiah

Brown, died before trial, as did Paul Fobb. Evidence could not be

found and was thus unavailable for defense testing. Because of

counsel’s failure to challenge the indictment, Mr. Woodfox’s rights

to Due Process and Confrontation could not be honored. His

conviction must be reversed.

(Emphasis added).
No. 08-30958

18

Although Woodfox mentioned the Confrontation Clause, he presented no

coherent argument on confrontation, and this paragraph does not resemble the

claims Woodfox made in his § 2254 petition about counsel’s ineffectiveness as

related to Brown. The various assertions that Woodfox did make in the state

application about Brown, confrontation, and his own counsel are interspersed

and separated by many pages. Then at page 139 of his state application,

Woodfox sets out among a laundry list of claims—without discussion or

analysis—the bald statementthat his “rights to due process and to confrontation

were violated by the admission of transcripts of prior testimony of Hezekiah

Brown.”

We cannot conclude from the foregoing that Woodfox’s state application

fairly raised the distinct issue of whether his 1998 counsel should have objected

to Brown’s testimony on the ground that his 1973 counsel was denied a fair

opportunity to cross-examine and impeach Brown on the Warden’s promise. All

Woodfox did was present general principles of law and present information that

might permit an inference of such a claim. Although he presented to the state

court the concepts of Brady/Giglio and the mere suggestion that he was unable

to effectively cross-examine Brown in 1973, he made no effort to join the law

with the facts of the case.

“It is not enough that all the facts necessary to support the federal claim

were before the state courts or that a somewhat similar state-law claim was

made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal citations omitted).

“Rather, the petitioner must afford the state court a ‘fair opportunity to apply

controlling legal principles to the facts bearing upon his constitutional claim.’”

Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Anderson, 459 U.S.

at 6). Woodfox’s state application did not afford such an opportunity to the state

court withoutthat courtfirst having to surmise and infer the basis for Woodfox’s

ineffective assistance claim. In addition, Woodfox was proceeding with counsel.
No. 08-30958

5 The dissent asserts that Woodfox’s state habeas application would not have prevented

the substance of the claim from being understood. Dissenting op. at 13. The dissent agrees,

however, that Woodfox made no coherent argument as to Brown and confrontation. Id. at 11.

We do not believe the state court would necessarily understand the claim, presented as it was

amidst a voluminous, disjointed submission. See Dissenting op. at 11. In contrast to the claim

about Brown, Woodfox did make specific claims that his counsel was ineffective for failing to

object on confrontation grounds to two other witnesses—Carl Cobb and Leonard Turner.

19

Although we liberally construe pro se pleadings, we do not afford such latitude

to pleadings prepared by counsel.5 See United States v. Gonzalez, 592 F.3d 675,

680 n.3 (5th Cir. 2009); Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).

We therefore conclude that Woodfox’s confrontation-based ineffective assistance

claim is unexhausted and procedurally barred from federal review. See Hatten

v. Quarterman, 570 F.3d 595, 605 (5th Cir. 2009).

As noted above, we have raised the exhaustion issue sua sponte, which we

have the authority to do provided that the State has not waived it. See Tigner,

264 F.3d at 526 n.3; Clinkscale v. Carter, 375 F.3d 430, 436–37 (6th Cir. 2004);

28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the requirement

unless the State, through counsel, expressly waives the requirement.”).

Although the State indicated in its answer to the § 2254 petition in the district

court that Woodfox’s claims were exhausted, we do not find an express waiver in

light of the State’s briefing of the issue.

“The touchstone for determining whether a waiver is express is the clarity

of the intent to waive.” Carty v. Thaler, 583 F.3d 244, 256 (5th Cir. 2009)

(quotation marks and citation omitted), cert. denied, — S.Ct. —, 2010 WL

321327, 78 U.S.L.W. 3454 (U.S. May 3, 2010) (No. 09-900). In Carty, we noted

with approval a Sixth Circuit decision that found waiver based on “‘counsel’s

conduct during the district court proceedings,’” which had “‘manifested a clear

and unambiguous intent to waive’” exhaustion. Id. at 257 n.9 (quoting

D’Ambrosio v. Bagley, 527 F.3d 489, 497 (6th Cir. 2008)). We held that the State
No. 08-30958

20

waived the exhaustion issue in Carty because its motion for summary judgment

in the district court showed that it treated all the relevant claims as exhausted.

Id. at 257; see also Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999) (holding

exhaustion expressly waived when the State admitted in its answer to the

federal habeas petition that the prisoner had “sufficiently exhausted his state

remedies”). We have also held that there was no “express waiver” where the

State indicated that it merely “believed” the prisoner had exhausted his claims,

although we concluded this was the equivalent of failing to assert the defense of

non-exhaustion. McGee v. Estelle, 722 F.2d 1206, 1213 (5th Cir. 1984) (en banc).

The State’s answer to Woodfox’s federal habeas petition stated that “on

October 11, 2006, petitioner filed these timely and exhausted claims in the

present petition for writ of habeas corpus.” (Emphasis added). The State made

an identical statement in its memorandum in support of its answer. However,

in the body of its memorandum addressing the ineffective assistance claim

surrounding Brown’s testimony, the State argued that Woodfox was actually

making a new argument. The State first asserted that in the state habeas

application Woodfox had “limited his argument [about counsel’s failure to

challenge the indictment]to the factthattwenty-one years between the first and

second indictment[s] as well as evidence that had been lost was presumptively

oppressive and had a prejudicial [effect on] his defense.” The State subsequently

argued that:

In this present claim, petitioner expands on the fact that the second

trial jury was unable to assess Hezekiah Brown’s demeanor first

hand, that petitioner was unable to impeach Brown and otherwise

cross examine this “critical” witness regarding such issues as a

pardon offer made by the warden. As a result of this new argument,

petitioner then comes to the new conclusion that a trial court“would

have had no choice but to uphold such a challenge” and prejudice

[from counsel’s ineffectiveness] is thereby established.
No. 08-30958

6 We note that the dissent agrees that the State has not explicitly waived the

exhaustion issue. See Dissenting op. at 3.

21

(Emphasis added). By characterizing Woodfox’s argument as a new claim in its

district court brief, the State hardly made a clear and unambiguous waiver of

exhaustion.6 At most, it simply failed to assert non-exhaustion as a defense. We

therefore hold that we are not precluded from raising exhaustion sua sponte and

finding that Woodfox’s claim is procedurally barred.

Woodfox may not obtain federal relief on the unexhausted claim. If a

prisoner fails to exhaust state remedies and the court to which the prisoner

would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred due to the prisoner’s

own procedural default,“federal courts are barred from reviewing those claims.”

Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). To overcome the procedural

bar on nonexhaustion, Woodfox must “demonstrate cause for the default and

actual prejudice as a result ofthe alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see Ries v.

Quarterman, 522 F.3d 517, 523–24 (5th Cir. 2008).

We find no basis for cause for failing to exhaust the claim in state court,

especially since Woodfox was represented by counsel in the state habeas

proceedings. See In re Goff, 250 F.3d 273, 276 (5th Cir. 2001) (“[I]neffective

assistance of counsel in a post-conviction proceeding cannot serve as cause to

excuse procedural default in a federal habeas proceeding.”). We likewise see no

basis to find a miscarriage of justice for not reviewing the claim. A claim of a

miscarriage of justice is limited to a claim of “actual innocence,” which requires

the prisoner to establish through new and reliable evidence “that it was ‘more

likely than not that no reasonable juror would have convicted him in the light

of the new evidence.’” Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)
No. 08-30958

22

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The “new” evidence upon

which Woodfox’s claim rests is the Warden’s promise to assist Brown with his

pardon application. This evidence does not establish that no juror would have

convicted Woodfox. In fact, the 1998 jury convicted Woodfox despite the

revelation of Warden Henderson’s promise. We therefore conclude that Woodfox

cannot overcome the procedural bar of non-exhaustion.

Even assuming arguendo that Woodfox adequately presented his

confrontation-based ineffective assistance claim in his state habeas application,

we find that the district court erroneously granted federal habeas relief. To

address the district court’s grant of habeas relief on the confrontation claim, we

must determine whether the state court adjudicated the claim on the merits,

thereby requiring the application of AEDPA deference, and if so, whether the

state court’s adjudication was contrary to or an unreasonable application of

federal law.

2. AEDPA deference

The AEDPA’s deferential standard is afforded to a state court decision only

when the state court adjudicated the petitioner’s claims on the merits. See 28

U.S.C. § 2254. This is akin to asking whether the state court decision was

“‘substantive or procedural.’” Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)

(quoting Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)). In the instant

case,theLouisiana Supreme Court denied Woodfox’s application for supervisory

writs with a one-word denial. See State v. Woodfox, 937 So. 2d 850 (La. 2006).

“When faced with a silent or ambiguous state habeas decision, the federal court

should ‘look through’ to the last clear state decision on the matter.” Jackson v.

Johnson, 194 F.3d 641, 651 (5th Cir. 1999). The last clear state court decision

of any substance to address Woodfox’s claims was the state trial court’s decision

denying Woodfox’s habeas application. That decision, in turn, also adopted the

State’s answer to Woodfox’s application. We must therefore decide whether the
No. 08-30958

23

state habeas court’s decision and adoption of the State’s response was an

adjudication on the merits because it was a “substantive” decision subject to the

AEDPA deferential standard of review, or whether it was a “procedural” decision

to which deference does not apply. See Mercadel, 179 F.3d at 274.

The state court’s “decision”in this case actually comprised two documents,

a “Judgment” and a statement of “Written Reasons.” The “Judgment” denied

Woodfox’s entire habeas application. It stated that Woodfox’s claims had been

“fully addressed” by the State’s response and that “[a] review of the record of

these proceedings, as well as the answer, indicates that there is no need to hold

an evidentiary hearing in these proceedings. For written reasons this day

adopted and assigned,the Courtfinds thatthe allegations are without merit and

the Application may be denied withoutthe necessity of any further proceedings.”

A separate, undated document captioned “Written Reasons” stated that

“Petitioner,” meaning Woodfox, bears the burden of proof to show he is entitled

to habeas relief. It cited LA. CODE CRIM.P. art. 930.2, and then stated that “[i]n

light of such burden of proof, the Court has fully considered the application, the

answer, and all relevant documents and has determined that Petitioner has

failed to carry his burden of proof.” The document continued, “In determining

that Petitioner’s application should be denied, the Court, moreover, adopts the

State’s Response to Application for Post Conviction Relief as the written reasons

for the Court’s decision.” 

The district court decided that the state trial court, through its adoption

of the State’s opposition to Woodfox’s post-conviction relief application, failed to

address Woodfox’s DueProcess and Confrontation Clause contentions respecting

the reading of Brown’s 1973 testimony at the 1998 trial. This purported failure

by the state court to address the claim led the district court to conclude that de

novo review applied rather than the AEDPA’s deferential standard. We disagree

with the district court’s assessment.
No. 08-30958

7 The dissent asserts that the State’s response neither analyzed the Confrontation

Clause nor made other legal arguments, and that the argument the state trial court must have

embraced was that the issue was not properly presented. Dissenting op. at 7. The dissent

believes the state trial court therefore based its decision on the independent, but inadequate,

state procedural grounds governing the presentation of state habeas claims. See LA. CODE

CRIM. PROC. ANN. art. 926(B)(3) & E. The failure of the State to analyze the Confrontation

Clause, in our view, is more likely because Woodfox made no coherent Confrontation Clause

argument and failed to exhaust the issue. But assuming arguendo that Woodfox adequately

raised the issue, the State made no express procedural argument under art. 926, and there is

no indication that the state trial court relied on it or another state procedural rule. Even if the

state trial court is viewed to have ruled procedurally, it also adopted as part of the State’s

response the State’s blanket denial of all of Woodfox’s ineffective assistance claims, which is

24

First, the State’s response to Woodfox’s state habeas application mirrored

the structure of Woodfox’s petition. It first discussed generally Woodfox’s factual

assertions about the various trial witnesses, and it then discussed the specific

legal claims. In the first part of the State’s brief in a section captioned

“Hezekiah Brown,” the State said: “What is very interesting is that, although

there is discussion of the testimony of Hezekiah Brown included in the

Statement of Facts portion of the application, there is no mention of it in the

Claims for Relief section.” The State then went on to indicate how important

Brown’s testimony was and that even if Woodfox disagreed with the verdict, it

was reasonable for the jury to choose to believe the State’s witnesses. This

directly responded to Woodfox’s attack on Brown’s credibility. In the second part

of its response, the State addressed inter alia Woodfox’s specific claims of

ineffective assistance of counsel. Although it did not discuss Brown again, the

State set forth the correct legal standard under Strickland v. Washington, 466

U.S. 668 (1984), for evaluating ineffective assistance claims and issued a blanket

denial “that any of Woodfox’s claims allege deficient performance on the part of

counsel.” (Emphasis added). The state court’s judgment and written reasons,

along with the incorporated State response, thus show that the state trial court

issued a merits-based adjudication of all of Woodfox’s claims, including the claim

about Brown’s testimony.7
No. 08-30958

a merits-based adjudication. When a state court rules alternatively on both procedural

grounds and on the merits of a prisoner’s claims, the AEDPA deference is still applicable. See

Busby v. Dretke, 359 F.3d 708, 721 n.14 (5th Cir. 2004).

25

Lest there be any doubt, we have adopted a three-part test to decide

whether a state court’s decision was an adjudication on the merits when that

decision is unclear. We consider the following:

(1) what the state courts have done in similar cases; (2) whether the

history of the case suggests that the state court was aware of any

ground for not adjudicating the case on the merits; and (3) whether

the state courts’ opinions suggest reliance upon procedural grounds

rather than a determination on the merits.

Mercadel, 179 F.3d at 274.

Besides stating that Woodfox’s claims had no merit and that it would

adopt the State’s response, the state court here cited LA. CODE CRIM. P. art.

930.2. That provision provides simply that “[t]he petitioner in an application for

post conviction relief shall have the burden of proving that relief should be

granted.” The Louisiana Supreme Court has cited article 930.2 in other cases

when a petitioner failed to carry his burden on the merits of the case. See State

v. LeBlanc, 937 So. 2d 844, 844 (La. 2006) (citing art. 930.2 after stating that

petitioner failed to show he pleaded guilty involuntarily); State v. Berry, 430

So. 2d 1005, 1013 (La. 1983) (citing art. 930.2 because petitioner’s claim thatthe

jury was not furnished with a copy of aggravating and mitigating circumstances

was “unsubstantiated and therefore without merit”). But the court has also cited

that provision when a petitioner failed to meet his burden on some procedural

point. See State v. Russell, 887 So. 2d 462 (La. 2004) (citing art. 930.2 because

petitioner failed to carry his burden of proofthat post-conviction application was

timely filed). Therefore, consideration of what the state courts have done in

other cases, by itself, is not dispositive of whether the state court’s citation to

article 930.2 in this case was substantive or procedural. But when considered
No. 08-30958

8 Although the dissent contends that the State’s response asserted Woodfox failed to

present his claim because it observed that Woodfox had not discussed Brown in the claims for

relief section of the state habeas application, we believe that is more akin to the exhaustion

issue. We are assuming for purposes of this discussion that Woodfox properly presented his

claim in state court.

26

in light of the other factors, we think it is clear that the state court decided all

of Woodfox’s claims on the merits.

The second factor of the Mercadel test, whether the history of the case

suggests that the state court was aware of any ground for not adjudicating the

case on the merits, fails to show any such awareness. In Barrientes v. Johnson,

221 F.3d 741, 779 (5th Cir. 2000), we held thatthis factor supported a conclusion

that the state court adjudicated the merits where the State’s response to the

habeas petition in state court attacked the claims on the merits rather than

arguing the procedural point of waiver. We “surmised” that the state court was

not put on notice by the State’s response that the claim was waived. Id.

Similarly here, the State made no argument to put the state court on notice of

any procedural defect in Woodfox’s state application.8Instead, the State

presented only merits-based arguments under the Strickland standard and, as

noted above, denied that any of the ineffective assistance claims showed

deficient performance by counsel. Furthermore, Woodfox conceded in his § 2254

petition in the district court that the state court had ruled on the merits of his

claims, specifically stating that “the claims raised in this petition[, other than

the grand-jury claim, which was raised on direct appeal,] were presented by Mr.

Woodfox in his state postconviction application, and all claims were rejected on

the merits.” Therefore, the history of the case suggests the state court

adjudicated the merits.

The final prong of the three-part inquiry, “whether the state courts’

opinions suggest reliance upon procedural grounds rather than a determination

on the merits,” further tips the scale in favor of finding a merits-based
No. 08-30958

9 Our conclusion that the state court adjudicated the merits of Woodfox’s claim is based

on our analysis of the entire three-part test under Mercadel, not solely on the state court’s

finding that Woodfox failed to carry his burden of proof, which the dissent says was simply a

“convenient generalization” by the state court. Dissenting op. at 6. Although the dissent also

faults our consideration of the word “moreover” in the state trial court’s ruling, we find an

adequate basis to believe the state trial court’s adoption ofthe State’s response was in addition

to its conclusion that Woodfox’s application lacked merit.

27

adjudication. The state court’s judgment stated that the “record,” as well as the

State’s response, indicated no need for a hearing and that “the allegations are

without merit.” (Emphasis added). Similarly, the state court’s written reasons

stated that the court had considered “the application, the answer, and all

relevant documents” before concluding that Woodfox failed to meet his burden

of proof. The court then stated that “moreover” it would adopt the State’s

response to Woodfox’s application. “Moreover” means “[i]n addition thereto, also,

furthermore, likewise, beyond this, beside this,” BLACK’SLAW DICTIONARY 1009

(6th ed. 1990), or “in addition to what has been said.” MERRIAM-WEBSTER’S

COLLEGIATE DICTIONARY 755 (10th ed. 2002). In other words, the state court

reviewed all relevant documents in the record of the proceedings, including the

State’s answer, and found no merit to any of Woodfox’s claims. In addition to

this conclusion, the court adopted the reasoning of the State’s response. There

is simply no indication in the state court adjudication that suggests a reliance

on any procedural vehicle rather than the merits to deny relief.9

Moreover, AEDPA deference applies to a state court adjudication even

when the state court gives no indication whatsoever as to the reasons for the

decision. See Schaetzler v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (“Because

a federal habeas court only reviews the reasonableness of the state court’s

ultimate decision, the AEDPA inquiry is not altered when, as in this case, state

habeas relief is denied without an opinion.”); Henderson v. Cockrell, 333 F.3d

592, 598 (5th Cir. 2003) (“AEDPA’s standards apply, however, when the state’s

highest court rejects a claim without giving any indication of how or why it
No. 08-30958

10 The questioning as appears in the record was as follows:

Prosecutor: Did anybody promise you anything to make you tell the truth?

Brown: Promise me anything?

Prosecutor: Did they?

Brown: No. They didn’t threaten me. I sat there a long time; I waited before I could

say anything. Nobody promised me nothing.

* * * *

Prosecutor: All right, now, Hezekiah, because of your trial testimony here today, did

you – let me ask you this: You stated that no one from the State promised you anything for this

testimony, is that correct?

Brown: That’s right.

Prosecutor: All right, but we did tell you that you would not be put back in the same

28

reached that decision.”). If we would accord AEDPA deference to a state court

decision that contained no explanation for its denial of relief, we are hard

pressed to deny such deference to a state court’s decision indicating that the

claims were without merit but also adopting the State’s response to the habeas

application. We therefore conclude that, assuming Woodfox properly exhausted

his confrontation-based ineffective assistance claim concerning Hezekiah

Brown’s testimony, the state court’s denial of relief was an adjudication on the

merits to which we must afford AEDPA deference. 

Turning to the merits of Woodfox’s claim, we must next determine whether

the state court’s denial of relief was contrary to or an unreasonable application

of clearly established federal law as established by the Supreme Court. See

§ 2254(d)(1).

3. Application of AEDPA deference to the merits

At Woodfox’s 1973 trial, Hezekiah Brown testified in response to

questioning from the State that he had not been promised any incentives in

return for his testimony, other than protection from other inmates.10 During his
No. 08-30958

place at – 

Brown: That’s right.

Prosecutor: – The penitentiary?

Brown: They told me that.

Prosecutor: – With Albert Woodfox?

Brown: That’s right.

11 The cross-examination, in relevant part, shows the following:

Defense counsel: Didn’t you tell me that Fess was in the dormitory at the time that

Woodfox came in there?

Brown: No. No. I hadn’t never told you that. No.

Defense counsel: You absolutely positive?

Brown: I know. I ain’t no positive to it. I know I ain’t told you nothin’ about that man.

* * * * 

Defense counsel: All right, you didn’t tell me Fess was over by the . . . water cooler?

Brown: No. No. Now, wait a minute man. Let me tell you somethin’, I ain’t told

nothin’ that night. You come in there, and you had your pad when I come up there to meet

you. 

* * * * 

Brown: . . . You and me, you sat there and talked for quite a while, and I was

explaining my case to you, and I told you then . . . I’m sorry that you is in this case, I says.

Well, the only thing I can do is tell you that it was a cold blooded murder, and I says, I’m going

to meet you on the stand when you—that’s what I told you there that night. And you said,

that I had a good case, and if after—after this was—after this is all over with, you would help

me. You remember when you told me that—when you told me that—told me? You give me

your card, remember? Huh? You the onliest somebody that promised to help me, to do

somethin’ for me.

29

1973 cross-examination, Brown denied making certain statements to defense

counsel and indicated that defense counsel was the only person to have made

any promises to help Brown.11 Brown’s direct and cross-examination were read

to the jury in 1998. As part of his defense, Woodfox called Warden Henderson,

who testified about interviewing Brown a few days after the murder. When

Brown incriminated Woodfox at this interview, he had been moved to the “dog
No. 08-30958

12 Although defense counsel went to great lengths to show that Henderson helped

Brown, virtually all ofthe documentary evidence post-dated Woodfox’s 1973 trial and could not

have been of any benefit to him for the first trial. Further, despite defense counsel’s argument

and insinuation that Brown’s testimony was “bought and paid for” because of Brown’s eventual

pardon, the pardon did not occur until 1986, thirteen years after Brown testified.

30

pen,” a minimum security area used to house the prison’s hunting dogs and to

also house trustees and inmates under protection. Henderson testified that he

promised to “protect” Brown and that he “later” promised to support Brown’s

pardon application, although Henderson could not recall when he made that

promise. When asked about Brown’s testimony in 1973 that nothing had been

promised to him, Henderson said, “Well nothing was promised to him to begin

with, but we told him, you know, we would protect him and try to help him any

way we could after he, you know, cracked the case for us.” Id. at 1964 (emphasis

added). When asked whether promises were made “before [Brown] testified,”

Henderson said, “That’s right.” Defense counsel also had Henderson identify

letters that were later written on Brown’s behalf in support of a pardon

application.12

The foregoing testimony, although equivocal as to what promises were

made to Brown, is the basis upon which the district court held that the

admission of Brown’s 1973 testimony violated the Confrontation Clause because

Brown could not be questioned aboutthe Warden’s promise, and that the failure

of Woodfox’s 1998 trial counsel to raise an objection was deficient performance.

We disagree with the district court.

In order to find thatthe state court’s denial of relief was contrary to clearly

established federal law, we must conclude that a potential Brady/Giglio violation

in 1973 that suppressed information contradicting Brown’s testimony rendered

thattestimony inadmissible atthe second trial, and that Woodfox’s 1998 counsel

was objectively unreasonable for failing to raise a confrontation objection even

though the jury was aware of the impeaching information at the second trial.
No. 08-30958

31

Although the merits of Woodfox’s claim thus concern the intersection of

Brady/Giglio with Confrontation Clause jurisprudence, the overarching legal

principle is the familiar ineffective assistance standard of Strickland. Under

that standard, the petitioner bears the burden to show that counsel’s

performance fell below an objective standard of reasonableness and that the

deficiency prejudiced the defense. See Strickland, 466 U.S. at 687–88. Our

review of counsel’s performance is highly deferential, and counsel’s conduct is

presumed to fall within a wide range of reasonable professional assistance. Id.

at 689; Soffar v. Dretke, 368 F.3d 441, 471 (5th Cir. 2004). The petitioner must

show that counsel “made errors so serious that he was not functioning as the

‘counsel’ guaranteed to the defendant under the Sixth Amendment.” Strickland,

466 U.S. at 687. To establish prejudice, the petitioner must show a reasonable

probability that, but for counsel’s deficient performance, the result of the

proceedings would have been different. Id. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id. A failure

to establish either deficient performance or prejudice defeats the claim. Id. at

697.

The performance of Woodfox’s 1998 trial counsel hinges on the objective

reasonableness of counsel’s failure to raise a confrontation-based objection to

Brown’s 1973 testimony. This requires examination of the controlling law for

confrontation-based claims. The Supreme Court’s Confrontation Clause

jurisprudence was changed significantly when the Court decided in Crawford v.

Washington, 541 U.S. 36, 53–55 (2004), that testimonial statements from an

unavailable witness may not be introduced at trial without a prior opportunity

for cross-examination, irrespective of any exceptions for hearsay. Crawford is

not relevant to our consideration, however, because it was decided after

Woodfox’s 1998 trial and it does not apply retroactively. See Whorton v.

Bockting, 549 U.S. 406, 409 (2007). Instead, defense counsel’s performance must
No. 08-30958

13 Defense counsel attempted to mitigate Brown’s incriminating evidence by suggesting

that Brown had given defense counsel information contrary to the testimony, and also by

eliciting testimony that Brown could not identify Woodfox’s clothing; that Brown did not know

if Woodfox got blood on him although there was a lot of blood at the scene; and that Brown did

not know which way Woodfox went when he fled. In 1998, counsel tried to further impugn

Brown’s prior testimony by eliciting the information from Warden Henderson about the

promises to help Brown with his pardon application. 

32

be judged based on the law that was in existence at the time of the trial. See

Paredes v. Quarterman, 574 F.3d 281, 287 (5th Cir. 2009). At the time of

Woodfox’s 1998 trial the admission of Brown’s testimony was governed by the

Supreme Court’s decision in Ohio v. Roberts, 448 U.S. 56 (1980).

The Confrontation Clause of the Sixth Amendment guarantees a criminal

defendant the right “to be confronted with the witnesses against him.” U.S.

CONST. amend. VI. In Roberts, the Supreme Court held that the admission of a

hearsay statement will not violate the Confrontation Clause if the witness is

unavailable and the statement “bears ‘adequate indicia of reliability.’” 448 U.S.

at 66; United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004). This indicia of

reliability is present if the statement “falls within a firmly rooted hearsay

exception” or if it is shown to possess “particularized guarantees of

trustworthiness.” Roberts, 448 U.S. at 66. There is no question but that sworn

testimony, such as Brown’s, given at a prior hearing where the defendant had

an opportunity to cross-examine the now-unavailable witness, ordinarily meets

the Roberts test for admission under a firmly rooted exception to hearsay. See

id. at 68 (noting “the established rule that prior trial testimony is admissible

upon retrial if the declarant becomes unavailable”); see also FED. R. EVID.

804(b)(1); LA. CODE EVID. ANN. art. 804(B)(1).

Woodfox, of course, not only had an opportunity to cross-examine Brown

in 1973 but he did so, questioning Brown at length about Brown’s version of the

events and testing his memory about what he saw.13 It is well-established that

“previously cross-examined prior trial testimony . . . has [been] deemed generally
No. 08-30958

14 The dissent’s analysis draws from prior opinions of this court, as well as from

treatises and a factually-similar case from the supreme court ofthe State of Pennsylvania. We

do not consider these authorities, however, because even if we were to find them persuasive

they do not constitute clearly established federal law as articulated by the Supreme Court as

required by the AEDPA. See Renico v. Lett, 130 S. Ct. 1855, 1866 (2010) (court of appeals’

reliance on its own prior precedent was improper because circuit precedent“does not constitute

‘clearly established Federal law, as determined by the Supreme Court,’ § 2254(d)(1), so any

failure to apply that decision cannot independently authorize habeas relief under AEDPA”);

see also Salazar v. Dretke, 419 F.3d 384, 399 (5th Cir. 2005) (“[A] decision by this court or one

33

immune from subsequent confrontation attack.” Roberts, 448 U.S. at 72–73; see

also Mancusi v. Stubbs, 408 U.S. 204, 213 (1972) (“At least since the decision of

this Court in Mattox v. United States, 156 U.S. 237 (1895), prior-recorded

testimony has been admissible in appropriate cases.”).

The crux of Woodfox’s claim is that the suppression of Warden

Henderson’s promises to Brown denied him the opportunity for crossexamination. When asked at oral argument for authority in support of a holding

that the possibility Brown lied in 1973 means that his prior testimony could not

be used at all in the second trial after Brown was dead, Woodfox’s counsel

conceded that he had no authority directly on point and relied on the general

principles of cases like Roberts. We must uphold the state court’s decision

denying Woodfox’s claim unless it is contrary to federal law as articulated in the

clear holdings of the Supreme Court. See Thaler v. Haynes, 130 S. Ct. 1171,

1173 (2010) (“A legal principle is ‘clearly established’ within the meaning of

[§ 2254(d)(1)] only when it is embodied in a holding of this court.”); Williams v.

Taylor, 529 U.S. 362, 412 (2000) (“[A]s the statutory language makes clear . . .

§ 2254(d)(1) restricts the source of clearly established law to this Court’s

jurisprudence.”); Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002) (“Clearly

established federal law refers to the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions as of the time of the relevant state-court decision.”)

(internal quotation and citation omitted). We find no clear answers in the

Supreme Court’s jurisprudence, however.14
No. 08-30958

of our sister circuits, even if compelling and well-reasoned, cannot satisfy the clearly

established federal law requirement under § 2254(d)(1).”).

34

The Court has suggested that while generally immune from an attack at

a subsequenttrial, prior recorded testimony might be challenged as inadmissible

if counsel was prevented or limited in engaging in meaningful crossexamination. See Roberts, 448 U.S. at 71 (noting that counselthere had not been

“‘significantly limited in any way in the scope or nature of his

cross-examination’”) (citation omitted); see also Magourik v. Warden, 237 F.3d

549, 553–54 (5th Cir. 2001) (holding that admission of prior recorded testimony

violated the Confrontation Clause because defendant “was unable to conduct any

cross-examination” due to trial court’s erroneous sustaining of prosecution

objections). Yet, the Court has also suggested that not all limited crossexamination violates the Confrontation Clause. See Delaware v. Fensterer, 474

U.S. 15, 20 (1985) (emphasizing that while the Confrontation Clause guarantees

an opportunity for cross-examination, it does not guarantee “cross-examination

that is effective in whatever way, and to whatever extent, the defense might

wish”).

Woodfox contends that the Confrontation Clause afforded counsel a firm

basis to object in this case because defense counsel lacked an opportunity for

cross-examination on the critical matter of Brown’s credibility in light of the

alleged promises from the Warden. But any deficiency in the 1973 crossexamination was due to the State’s alleged Brady violation in suppressing

information. We have found no Supreme Court authority for the proposition

that a Brady violation impacting a defendant’s prior cross-examination of a

witness, in which counsel otherwise took full advantage in questioning, renders

that prior testimony per se inadmissible at a subsequent trial. Therefore, we

cannot conclude that the state court’s denial of relief on such a basis is

unreasonable. “[I]t is not an unreasonable application of clearly established
No. 08-30958

35

Federal law for a state court to decline to apply a specific legal rule that has not

been squarely established by th[e Supreme] Court.” Knowles v. Mirzayance, 129

S. Ct. 1411, 1419 (2009) (internal quotation marks and citations omitted).

In the absence of a specific rule from the Court governing the situation at

hand, we must ask whether it was nevertheless deficient performance under the

broader Strickland standard for counsel not to have pressed the objection. But

“because the Strickland standard is a general standard, a state court has even

more latitude to reasonably determine that a defendant has not satisfied that

standard.” Id. at 1420. This court’s review is therefore “doubly deferential” to

the state court adjudication. Id.; see also Wooten v. Thaler, 598 F.3d 215, 222

(5th Cir. 2010). 

Under this deferential review, we cannot fault the state court for denying

relief. In hindsight, it may be easy to say defense counsel could have argued

that the State’s suppression of Warden Henderson’s promise to Brown denied

Woodfox an opportunity to adequately cross-examine Brown in 1973. But we

must eliminate the distorting effects of hindsight, see Strickland, 466 U.S. at

689, and keep in mind both counsel’s perspective at the time and the alleged

precipitating Brady violation. In 1998, the Supreme Court had already said that

previously recorded trialtestimony was virtually unchallengeable. See Roberts,

448 U.S. at 72–73; Mancusi, 408 U.S. at 213. Moreover, the remedy for a Brady

violation typically is a new trial at which the previously excluded evidence is

admitted. See Monroe v. Blackburn, 748 F.2d 958, 960 (5th Cir. 1984) (noting

that the new trial remedy for a Brady violation occurs because the defendant’s

right to a fair trial has been prejudiced by the suppression of evidence); United

States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978) (a violation of the

constitutional standard of fairness under Brady requires a new trial if after

conviction it is learned that suppressed evidence creates a reasonable doubt as

to guilt that did not previously exist); see also United States v. Davis, 578 F.2d
No. 08-30958

36

277, 280 (10th Cir. 1978) (assuming a Brady violation occurred “the most an

invocation of Brady could accomplish would be the ordering of a new trial in

which the withheld information is fully disclosed”); United States v. Coleman,

862 F.2d 455, 458–59 (3d Cir. 1988) (“The awarding of a new trial to remedy a

Brady violation insures that the defendant will be able to make full use of the

exculpatory evidence during the subsequent proceeding.”).

In the instant case, the 1998 jury knew about Warden Henderson’s

discussions with Brown. Counsel took advantage of that information at the

second trial by closely questioning Henderson about the circumstances of

Brown’s testimony. Counsel also introduced documentary evidence showing that

Warden Henderson attempted to make good on his promise of assistance to

Brown by writing various letters in support of Brown’s pardon application, by

authorizing the prison to pay for Brown’s pardon notice, and by providing Brown

periodically with cigarettes while Brown was incarcerated. In short, the

impeachment evidence that Woodfox contends was suppressed in 1973 was

presented along with other documentary impeachment evidence to the 1998 jury.

Woodfox may not have been able to ask Brown about the promise in 1998, but

after reviewing the trial transcript we are convinced that the jury knew Brown

allegedly had an incentive to lie, and it is not unreasonable to conclude that

defense counsel did not render constitutionally deficient performance by failing

to pursue a confrontation objection.

Up to this point, we have assumed for the sake of the discussion that the

Warden’s testimony was impeachment evidence under Brady and thatthe State

suppressed the Warden’s purported promise to Brown. Although we see no

evidence in the record that the State knew at the time of the 1973 trial about

any inducements made by prison officials to Brown,the State’s subjective intent

is not determinative. See Brady, 373 U.S. at 87 (due process is violated by

suppression of material evidence irrespective of the good faith or bad faith of the
No. 08-30958

15 The district court noted that in the case of co-defendant Herman Wallace a state

commissioner found a Brady violation because the state suppressed Henderson’s alleged

promises to Brown, who had also testified at Wallace’s 1974 trial; however, the state district

court rejected the commissioner’s recommendation and found no Brady violation, and the

Louisiana Supreme Court denied an application for writs. See State v. Wallace, 19 So. 3d 4

(La. 2009).

37

prosecution). Nevertheless, we also pause to note that it is not clear from our

review of the record that there was a Brady violation.15 First, Warden

Henderson’s testimony was equivocal. He testified that nothing was promised

to Brown initially, other than protection, and that Brown was not told the

Warden would assist with the pardon application until Brown “cracked the case.”

This is consistent with Brown’s testimony that nothing was promised to him.

The Warden did agree with defense counsel that promises were made before

Brown testified, but this testimony, which was also elicited by defense counsel,

was internally inconsistent. Warden Henderson further specifically testified

that he did not consider his discussions with Brown “sinister” and that no one

ever suggested to Brown that he identify Woodfox as being involved in the

murder.

Moreover, even assuming that Henderson’s testimony could impeach

Brown, this court has previously recognized that there can be no viable Brady

claim when allegedly suppressed evidence was available to the defendant

through his own efforts. Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997)

(holding that to state valid Brady claim habeas petitioner must demonstrate

inter alia that “discovery of the allegedly favorable evidence was not the result

of a lack of due diligence”); United States v. Marrero, 904 F.2d 251, 261 (5th Cir.

1990) (finding no Brady claim where defendant could have discovered

exculpatory information by interviewing witnesses). Woodfox called Warden

Henderson at the 1998 trial to testify about his interaction with Brown after the
No. 08-30958

38

murder. If Warden Henderson was willing to testify in 1998, it is not clear why

Woodfox could not have also presented the same testimony at the 1973 trial.

In sum, the issue of counsel’s ineffectiveness for failing to object on

confrontation grounds in 1998 to the admission of Brown’s 1973 testimony was

not raised in Woodfox’s state habeas application in a manner that gave the state

court a fair opportunity to rule on it. We do not liberally construe pleadings

prepared by counsel, and we hold the issue is unexhausted and not properly

before us. In the alternative, assuming that the issue was properly presented

in state court, we conclude that the state court’s decision was an adjudication of

the merits requiring AEDPA deference. Under that deferential standard, there

is no basis in clearly established Supreme Court holdings for the conclusion that

an unavailable witness’s prior recorded testimony is inadmissible under the

Confrontation Clause because a post-trial revelation of Brady/Giglio

impeachment evidence shows that the witness may have lied, and defense

counsel was ineffective for not objecting on that ground even though the

impeachment evidence was before the second jury. We therefore cannot find

thatthe denial of habeas relief on Woodfox’s claim was unreasonable or contrary

to federal law. This is so even if we were to conclude from our own independent

analysis that the denial was erroneous. See Williams, 529 U.S. at 412 (“[A]n

unreasonable application of federal law is different from an incorrect or

erroneous application of federal law.”) (emphasis in original). For this reason,

we are compelled by the deferential standard under the AEDPA to conclude that

Woodfox’s ineffective assistance claim must fail and the district court’s judgment

must be reversed.

4. Due process

In its discussion of counsel’s ineffectiveness relating to Brown’s testimony,

the district court held that counsel was deficient for failing to challenge the

indictment “on Confrontation Clause and Due Process grounds.” The court
No. 08-30958

39

reasoned that counsel should have soughtto quash the indictment because, with

the passage of time since the 1973 trial, physical evidence had been lost and

several witnesses had died. The court noted that Woodfox’s counsel failed to

object that the bloodstained clothing could not be located for testing or that

counsel would be unable to cross-examine not only Brown but also Paul Fobb

and state criminologist Carl Cobb, whose prior recorded testimony was also

presented at the 1998 trial. Woodfox also urges in his appellate brief that

counsel rendered deficient performance for failing to move to quash the

indictment. We disagree.

Although the Due Process Clause limits the time after an offense within

which the State may indict the accused, the defendant must meet a two pronged

test to show a due process violation. See Avants, 367 F.3d at 441. The defendant

must show that pre-indictment delay “‘was intentionally brought about by the

governmentfor the purpose of gaining some tactical advantage over the accused

in the contemplated prosecution or for some other bad faith purpose’; and ‘the

improper delay caused actual, substantial prejudice to his defense.’” Id.(quoting

United States v. Crouch, 84 F.3d 1497, 1523 (5th Cir. 1996) (en banc)). Here,

there is no indication in the record, nor is there any claim by Woodfox, that

prosecutorial misconduct caused the delay in Woodfox’s second indictment.

Indeed, Woodfox’s conviction on the original 1972 indictment was set aside by

the state courts in 1992, and the State wasted little time in re-indicting him in

1993. There was therefore no basis for a due process objection to the indictment.

Furthermore, with respect to the lost clothing, defense counsel did file a

motion to compel its production and also argued to the trial court a motion to

quash the indictment based on the absence of the physical evidence. We do not

see what more counsel could have done and find no deficient performance

concerning the clothing. As for the testimony of Fobb and Cobb, both witnesses

testified under oath at the first trial and were subject to unfettered cross-
No. 08-30958

40

examination. Their testimony was therefore admissible. See Roberts, 448 U.S.

at 72–73. We conclude that counsel was not deficient for failing to seek to quash

the indictment on the grounds identified by the district court.

B. Failure to object to testimony from former prosecutor

The district court also granted Woodfox habeas relief due to counsel’s

failure to object to the testimony of former prosecutor John Sinquefield, who

prosecuted Woodfox in the 1973 trial. Sinquefield testified at the second trial

immediately after the State read Brown’s 1973 testimony into the record. The

State called him purportedly to explain certain gestures Brown had made during

his testimony at the first trial. Defense counsel objected to the State’s attempt

to bolster Brown’s testimony with Sinquefield. The court overruled the objection

but gave a limiting instruction that the jury was to be the sole evaluator of

witness credibility. During the course of questioning, Sinquefield volunteered

the following about Brown:

Hezekiah Brown testified in a good, strong voice, he was very open,

he was very spontaneous, he answered questions quickly, and he

was very fact specific. He didn’t have to hesitate and think about

his answers, but if you got something wrong, he would stop you,

even to the extent in one part of his testimony, I think he—he

stopped and corrected me that he said, now, you know, wait, this

wasn’t Woodfox just by hisself, there were others involved. He

would even stop you if you tried to put more on Mr. Woodfox than

he thought Mr. Woodfox did. He was very open, very quick. He

testified, he didn’t hesitate, he testified very clearly and I was proud

of the way he testified. I thought it took a lot of courage.

Although defense counsel had objected earlier, he did not specifically object to

the foregoing testimony.

On direct appeal of his conviction, Woodfox argued that Sinquefield’s

testimony was improper. The Louisiana First Circuit Court of Appeal was

troubled that Sinquefield was allowed to give his opinions about Brown. The

court found no reversible error, however, because the testimony had been
No. 08-30958

41

unresponsive to the prosecutor’s questions and Woodfox did not specifically

object to that portion of it. The court further held, however, that even if

Woodfox’s prior objection to Sinquefield’s testimony adequately preserved the

issue, any overzealousness on the part of Sinquefield did not rise to reversible

error given the trial court’s limiting instruction.

Woodfox naturally raised in his state habeas application and in his § 2254

petition the claim that trial counsel was ineffective for failing to object to

Sinquefield’s testimony. The state habeas court, through adoption of the State’s

answer, held inter alia that Woodfox failed to allege any actual prejudice.

Woodfox maintains in this appeal that defense counsel was ineffective for

not objecting to the testimony. Like the state appellate court, we too are

troubled by that aspect of Sinquefield’s testimony wherein he exclaimed how

“proud” he was of Hezekiah Brown and that Brown’s testimony “took courage.”

This is the kind of testimony ordinarily found to be improper. See United States

v. Corona, 551 F.2d 1386, 1389 (5th Cir. 1977) (reversing conviction on direct

appeal where, among many other improper comments to the jury, prosecutor

stated that he was “kind of proud” of the witness). A prosecutor’s vouching for

the credibility of witnesses improperly suggests to the jury (1) that evidence not

presented at trial but known to the prosecutor supports the charges against the

defendant so that the conviction is not based only on evidence presented to the

jury, and (2) that the prosecutor’s opinion, which carries an imprimatur of the

State, should be trusted over the jury’s own view of the evidence. United States

v. Young, 470 U.S. 1, 18–19 (1985). 

Nevertheless, we do not find that the state court’s denial of relief on this

claim was unreasonable or contrary to clearly established federal law. As noted

above, the state appellate court on direct appeal held that even if the issue was

preserved, reversal was not warranted because of the trial court’s limiting

instruction. If there was no reversible error, there could be no ineffective
No. 08-30958

42

assistance claim because defense counsel’s failure to object could not have caused

prejudice.

The state appellate court’s analysis was not unreasonable. A prosecutor’s

improper comments may be subject to harmless error analysis. See Young, 470

U.S. at 12 (prosecutor’s comments “must be examined within the context of the

trial to determine whether the prosecutor’s behavior amounted to prejudicial

error”); United States v. Carey, 589 F.3d 187, 193 n.4 (5th Cir. 2009) (reviewing

claim of improper vouching by prosecutor for plain error but noting that error

was also harmless); Hughes v. Quarterman, 530 F.3d 336, 347 (5th Cir. 2008)

(holding that a curative instruction may reduce risk of prejudice to defendant

from prosecutor’s improper remark). Here, Sinquefield’s testimony was

volunteered and was relatively isolated in the context of the trial as a whole.

The trial court also gave a limiting instruction. See Richardson v. Marsh, 481

U.S. 200, 211 (1987) (“[J]uries are presumed to follow their instructions.”).

Improper prosecutorial remarks are constitutionally unfair only if they are

persistent and pronounced, or ifthe evidence is so weak that no conviction would

have occurred but for the remarks. Hughes, 530 F.3d at 347. Sinquefield’s

comments were not pervasive, and the jury had sufficient evidence from which

to disbelieve Brown if it so chose. The jury resolved the credibility

determination against Woodfox, and we do not believe the comment from

Sinquefield likely tipped the balance.

Moreover, defense counsel did attempt to object to improper bolstering by

Sinquefield atthe commencement of the testimony. Although the state appellate

court held the objection insufficientto preserve error, itis apparent that counsel

was not simply sitting idly by during the testimony, and we are not convinced

the jury would not have convicted Woodfox but for counsel’s failure to object a

second time. Therefore, Woodfox has not shown that but for counsel’s alleged

error the results of the proceeding would have been different.
No. 08-30958

43

We stress again that the issue before us is not whether we would have

ruled differently, or even whether Woodfox has made the necessary showing

under Strickland; rather, the issue is whether the state court’s decision that

Woodfox has not made that showing was unreasonable. See Gonzales v.

Quarterman, 458 F.3d 384, 390 (5th Cir. 2006) (citing Busby v. Dretke, 359 F.3d

708, 717 (5th Cir. 2004)). We conclude that the state court’s decision that there

was no reversible error from Sinquefield’s testimony was not an unreasonable

application of clearly established federal law, which in turn means it was not an

unreasonable application of clearly established federal law for the state court to

find no prejudice from defense counsel’s failure to object. We therefore reverse

the district court’s grant of habeas relief for this claim.

C. Failure to investigate

The district court granted Woodfox habeas relief on three claims related

to defense counsel’s failure to investigate prior to the 1998 trial. These claims

involved the bloodstained clothes that Sheriff Daniel seized from Woodfox in

1972, the bloody print found at the scene of the murder, and evidence of witness

Paul Fobb’s blindness. 

“[C]ounsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691. Any decision by counsel not to investigate is

assessed for reasonableness under all the circumstances, with a heavy measure

of deference to counsel’s judgment. Id. “In assessing counsel’s investigation, we

must conduct an objective review of their performance, measured for

reasonableness under prevailing professional norms, which includes a

context-dependent consideration of the challenged conduct as seen from counsel’s

perspective at the time.” Wiggins v. Smith, 539 U.S. 510, 523 (2003) (internal

quotation marks and citations omitted). The reasonableness of an investigation

involves “not only the quantum of evidence already known to counsel, but also
No. 08-30958

44

whether the known evidence would lead a reasonable attorney to investigate

further.” Id. at 527. Bearing these principles in mind, we consider each of

Woodfox’s claims in turn.

1. Bloodstained clothing

The State presented testimony from Carl Cobb, a supervisor at the State

Police Crime Lab, who testified at Woodfox’s 1973 trial about blood stains on the

clothing that Sheriff Daniel seized from Woodfox. According to Cobb, stains on

the three items of clothing were all found to be blood, but the sample size on two

items (the pants and shoe) were too small to determine whether the blood was

human or animal. The third item (a jacket) was found to contain human blood,

but again the sample was too small to determine anything else. Cobb testified

that the presence of blood was determined by use of a benzidine test, while the

origin of the blood (human or animal) was tested with a pricipitin test. Because

Cobb had died by the time of the second trial in 1998, the State read Cobb’s

testimony into the record. In 1973, defense counsel stipulated to Cobb’s

qualifications as an expert and conducted little cross-examination.

The district court faulted the 1973 defense counsel for failing to ask Cobb

aboutthe testing methodologies and procedures,the experience and competency

of the state crime lab personnel, or the chain of custody of the clothing. The

district court held that in light of these problems with the 1973 crossexamination,trial counsel in 1998 should have objected to the introduction ofthe

testimony or obtained his own expert evidence to counter Cobb’s opinions.

We do not find counsel ineffective for failing to object to the introduction

of Cobb’s prior recorded testimony. Cobb was under oath at the 1973 trial and

defense counsel had ample and unrestricted opportunity to cross-examine him.

Because he was dead and unavailable in 1998, the testimony was admissible.

See Roberts, 448 U.S. at 68. The district court suggested Woodfox could have

obtained expert evidence to show that Cobb’s opinions were inadmissible as
No. 08-30958

45

scientifically unreliable. See, e.g., State v. Foret, 628 So. 2d 1116, 1121–22 (La.

1993) (discussing requirements for admission of expert scientific testimony); see

also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). But Woodfox

stipulated at the 1973 trial to the expert’s qualifications. Perhaps the 1973

counsel was ineffective for doing so, but that is not a claim properly before us in

this case. Further, Woodfox cites no authority, let alone clearly established

authority from the Supreme Court, that prior trial testimony from an expert,

whose qualifications were stipulated to by the defendant, is rendered

inadmissible because a contemporary expert at a second trial may disagree with

the first expert’s methods or conclusions. Viewing the matter from counsel’s

perspective in 1998,the prior recorded testimony of the now-unavailable witness

was admissible. Counsel also knew that the testimony was at best inconclusive

because the purported blood on the clothing was not matched to the victim,

Woodfox, or anyone else. We perceive no constitutional deficiency in failing to

object to the admission of Cobb’s testimony under these circumstances. Of

course, counsel could still have attacked Cobb’s conclusions with his own expert

witnesses at the second trial, which we consider next.

Woodfox maintains in this appeal, consistent with the district court’s

opinion, that counsel was ineffective for failing to obtain his own experts to

discredit Cobb by showing that the testing procedures used in 1973, specifically

the benzidine and precipitin tests, were inadequate or scientifically invalid for

determining the presence of blood on the clothing. Woodfox points to two expert

witnesses from whom he obtained declarations in 2002 during the postconviction state habeas proceedings that demonstrated purported deficiencies

in Cobb’s testimony and testing methodology. The district court also relied in

large part on the existence ofthese experts’ declarations for its finding that 1998

counsel rendered ineffective assistance.
No. 08-30958

46

At bottom, Woodfox’s claim is one of uncalled witnesses. Claims that

counsel failed to call witnesses are not favored on federal habeas review because

the presentation of witnesses is generally a matter of trial strategy and

speculation about what witnesses would have said on the stand is too uncertain.

See Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.1985). For this reason, we

require petitioners making claims of ineffective assistance based on counsel’s

failure to call a witness to demonstrate prejudice by “nam[ing] the witness,

demonstrat[ing] that the witness was available to testify and would have done

so, set[ting] out the content of the witness’s proposed testimony, and show[ing]

that the testimony would have been favorable to a particular defense.” Day v.

Quarterman, 566 F.3d 527, 538 (5th Cir. 2009). This requirement applies to both

uncalled lay and expert witnesses. Id.

Woodfox presented the declarations from the expert witnesses to cast

doubt on the State Police Crime Lab’s 1973 findings by criticizing the benzidine

and precipitin tests and explaining how advanced testing procedures, such as

DNA testing, should have been performed in 1998. Although the experts

declared as part of the state habeas proceeding that if called to testify they could

testify competently to the matters contained within the declarations, they did

not state that the experts were available to testify at trial in 1998 and would

have done so, or that they would have testified to the same extent as their

opinions presented in the declarations. See id. This is not a matter of

formalism. In Day, we addressed very similar circumstances. The petitioner

there presented an expert affidavit in post-conviction proceedings rebutting the

opinions of the State’s experts, but he failed to show the expert was available to

testify at trial and would have done so. We stressed that the petitioner’s claim

of uncalled expert witnesses was therefore subject to “the exact problem of

speculation that the Fifth Circuit seeks to avoid by requiring the prejudice

showing set forth [above].” Id. In other words, we have no evidence beyond
No. 08-30958

16 Woodfox’s experts suggested that “sloughed off skin cells” and hair obtained from the

clothes could have been subjected to DNA testing in 1998 to establish a DNA profile of the

habitual wearer ofthe clothing. In theory, this profile could then have resolved whether or not

the clothing belonged to Woodfox. The district court believed that counsel was ineffective for

failing to pursue such a course of action. As noted above, however, the clothing had been lost

by the time of the trial and therefore was unavailable for testing. We therefore cannot find

that defense counsel was ineffective for not having the clothing tested. The same reasoning

applies to the experts’ opinions that the blood stains should have been subjected to DNA

testing as well. Counsel could not have tested that which no longer existed.

47

speculation that in 1998 defense counsel could have found and presented an

expert witness who would have testified as he claimed in his post-conviction

applications. See id.

Moreover, we find that Woodfox’s claim fails for other reasons. First,

“[t]he scope of a defense counsel’s pretrial investigation necessarily follows from

the decision as to what the theory of defense will be.” Soffar, 368 F.3d at 443.

Here, the theory of the defense was that the clothing seized by Sheriff Daniel

and tested by the State did not belong to Woodfox, who consistently denied that

the clothes were his and so testified attrial. Although counsel could have sought

experts to challenge Cobb’s scientific testimony about the blood, we do not find

that failure to do so was unreasonable in light of Woodfox’s adamant insistence

that he wore other clothes.16

Second, we do not find Cobb’s testimony so crucial to the State’s case that

defense counsel’s failure to obtain a blood expert caused Woodfox prejudice in the

Strickland sense. The sample sizes on the three items of clothing were so small

that Cobb could not determine conclusively whether the purported blood was

even human on two of them. The testimony at trial was that the crime scene

was very bloody, and counsel was able to reasonably argue that with all of the

blood at the scene the jury should have expected to see bloody items positively

traceable to the killer but that there were no such items. Woodfox also worked

in the prison kitchen, which provided still another reasonable explanation for

the presence of blood or other substances on the clothing. In short, the absence
No. 08-30958

17 Woodfox asserts in his appellate brief that counsel was also ineffective for failing to

discredit Cobb’s testimony by presenting evidence of a mid-1970s study conducted by the

Department of Justice. Woodfox asserts that the study, which examined 200 crime

laboratories around the country, found that “71.2% of laboratories failed,” and that counsel

48

of a rebuttal blood expert did not affect other avenues for mitigating the physical

evidence. 

Furthermore, with respect to the finding that blood on the jacket seized

from Woodfox was human, Cobb indicated thatthis result was obtained from the

precipitin test. One of Woodfox’s experts agreed that a precipitin test can be

used to determine whether blood is human or animal, but he averred that the

test can be unreliable and a false positive could result if it were not performed

properly. The expert opined that further detail should have been included in the

State’s lab reports in order to determine how the test was conducted and that

additional confirmatory testing should have been done in 1998. But the expert

did not opine thatthere was any indication thatthe State had performed the test

incorrectly, and of course further testing could not be conducted because the

clothing was no longer available. The expert opinion was therefore speculative.

Cf. Greiman v. Thalacker, 181 F.3d 970, 974 (8th Cir. 1999) (petitioner failed to

show ineffective assistance for failing to objectto State’s expert rebuttal witness

where a reasonable jury would have accepted conclusions of State’s experts over

the speculative opinions of the defendant’s experts).

Finally, there was still evidence from other witnesses placing Woodfox at

the scene and identifying him as the killer. In order to establish prejudice,

Woodfox was required to show more than a mere possibility that counsel’s errors

could have affected the outcome of the trial. See United States v. Drones, 218

F.3d 496, 501 (5th Cir. 2000). He was required to establish a reasonable

probability. We cannot conclude from all the circumstances that there is a

reasonable probability that butfor counsel’s failure to call a blood expertto rebut

Cobb’s testimony, the jury would not have convicted Woodfox.17
No. 08-30958

could have used this study to exclude Cobb’s testimony as unreliable. This study did not form

part of the district court’s decision. Moreover, the study did not make public the results from

individual laboratories. It therefore failed to identify any deficiency in the Louisiana State

Police Crime Laboratory. We fail to see, therefore, how this speculative evidence would have

rendered Cobb’s testimony inadmissible, and Woodfox’s conclusory argument is insufficient to

support a claim of ineffective assistance of counsel for failing to present the evidence. See

Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998).

49

2. Bloody print

In 1973, the State presented at the first trial testimony from Steven

Leddell, who was employed by the Louisiana State Police and who participated

in the investigation after the murder. Leddell testified that he examined the

crime scene and located a bloody fingerprint on the door to the Pine 1 dorm,

which he photographed. Leddell explained that although the print was

identifiable, it did not match the fingerprints on file for either Woodfox or any

of the other defendants charged in the case. Relying on the exculpatory nature

of this prior testimony, defense counsel at the second trial in 1998 argued in his

opening statement to the jury that, although a bloody fingerprint was found at

the scene, there would be no evidence at trial linking that fingerprint to

Woodfox.

The State then presented testimony from Carol Richard, a State Police

fingerprint examiner, who testified for the first time that she thought the print,

previously long believed to be a fingerprint, was actually a palm print. The

exculpatory nature of the print would be affected if it was from a palm instead

of a finger because Richard testified that no comparisons had been made

between anyone’s palm prints and the print found at the scene. Therefore

Woodfox would no longer be positively excluded as the source of the print.

Defense counsel objected to Richard’s testimony on the basis of undue

surprise because all along the State had represented the print was from a finger.

The trial court overruled the objection. The court held that rather than simply

rely on the expert opinion from 1973, Woodfox could have obtained his own
No. 08-30958

50

expert to independently examine the print and either confirm or refute the

State’s experts. Woodfox subsequently presented as part of his defense the prior

testimony of Leddell, who, like so many other witnesses, was no longer available

for the second trial.

The district court here held that defense counsel rendered ineffective

assistance for failing to investigate and obtain a fingerprint expert. The court

noted that the state trial court had even discussed the fact that funds were

available for the court to appoint an expert. The district court reasoned that if

defense counsel had consulted his own expert rather than rely on the 1973

testimony of Leddell, counsel could have known before trial whether the print

was from a finger or palm and been prepared to refute Richard’s testimony. The

district court also noted that Woodfox presented in both his state habeas

application and his § 2254 petition a declaration from a fingerprint expert, who

disagreed with Richard and opined that the print was from a finger, specifically

a thumb, rather than a palm. Assuming the print was from a palm, however,

the expert also compared the printto Woodfox’s palm prints and concluded there

was no match.

We disagree with the district court’s finding of ineffective assistance.

First, as with his claims respecting the failure to call experts to evaluate the

testing of the bloody clothes, Woodfox has not shown that his fingerprint expert

was available to testify at the 1998 trial. The claim of failing to present an

expert witness is therefore unavailing. See Day, 566 F.3d at 538.

Second, after eliminating the distorting effects of hindsight, we find no

deficiency in counsel’s performance. Counsel knew in 1998 that the 1973 expert

had given sworn testimony that the bloody print was a fingerprint and that it

matched neither Woodfox nor anyone else charged in the case. Counsel could

have obtained an expert to confirm that opinion, but had he done so counsel also

risked potentially uncovering damaging information depending on what the
No. 08-30958

51

retained expert found. Counsel was thus faced with a dilemma: he could do

nothing in the face of evidence that did not inculpate Woodfox and in fact

exculpated him, or he could retain an expert who possibly might disagree with

the prior sworn testimony. “Counsel’s decision not to pursue evidence that could

be ‘double-edged in nature [was] objectively reasonable and therefore does not

amount to deficient performance.’” Drones, 218 F.3d at 501 (quoting Lamb v.

Johnson, 179 F.3d 352, 358 (5th Cir. 1999)) (other citations omitted).

It is axiomatic that the State bears the burden of proof in any criminal

case, and a defendant need prove nothing. See United States v. Manetta, 551

F.2d 1352, 1357 (5th Cir. 1977). Unless there was some reason for counsel to

reasonably doubt that the bloody print was a fingerprint, which is not apparent

from the record, we see no deficiency in counsel’s decision to hold the State to its

burden and to rely on the prior sworn testimony that in no way inculpated

Woodfox.

In support of its decision that counsel rendered deficient performance by

failing to obtain an expert, the district court relied largely on the Sixth Circuit’s

decision in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). The court there

held that counsel for a defendant convicted of arson rendered ineffective

assistance because he did not conduct a reasonable investigation or adequately

consult experts to test the State’s scientific evidence that a fire was caused by

the use of accelerants. We find Richey and other similar cases cited in the

district court’s opinion inapposite because they concerned expert opinions from

government witnesses that inculpate the defendant. But here the State’s

previously presented expert provided testimony that tended to exonerate

Woodfox. Counsel’s duty is to reasonably investigate or make a reasonable

decision that no further investigation is necessary. See Strickland, 466 U.S. at

691. Given the information known to counsel at the time, we see no reason for
No. 08-30958

52

counsel to have believed further investigation of the bloody print was necessary.

See Wiggins, 539 U.S. at 527.

Finally, we also conclude that the absence of a fingerprint expert did not

cause Woodfox prejudice that warrants habeas relief. The district court held

that a fingerprint expert could have provided support for the theory that the

print was a fingerprint, and not a palm print, so that the print retained some

exculpatory value. But although the print-as-a-palm-print theory may have

reduced the print’s exculpatory nature, it did not eliminate it altogether.

Counsel argued to the jury in his opening statement that there was no bloody

print evidence linking Woodfox to the crime scene. That remained true even if

the print was a palm print because no match was made to Woodfox. Even after

Richard’s testimony the jury was left to wonder why the print was not tested

against Woodfox’s prints. Richard testified that palm prints were not routinely

included on a prisoner’s fingerprint card at Angola, and that the print was not

sufficiently detailed to run it through the State’s automated fingerprint

database, which went online in 1988. However, defense counsel elicited

testimony from Richard that the print was identifiable and could be compared

manually with other prints. Thus, even accepting Richard’s testimony that the

print came from a palm, it did not inculpate Woodfox, and it likely would have

caused the jury to wonder why the State did not manually compare it with

Woodfox’s prints. Furthermore, defense counsel presented the prior testimony

of Leddell as part of the defense case, which contradicted Richard’s testimony.

Although Richard testified about the improvement and evolution of fingerprint

examination since the first trial in 1973, the jury was still presented with two

State witnesses who gave contrary opinions.

We conclude from the totality of the circumstances that the state court’s

denial of habeas relief on the claim that counsel should have retained a
No. 08-30958

53

fingerprint expert was not an unreasonable application of clearly established

federal law.

3. Paul Fobb’s blindness

Finally,the district court also found defense counsel ineffective in 1998 for

failing to investigate evidence to discredit inmate Paul Fobb, who testified in

1973 that he saw Woodfox enter the Pine 1 dormitory and then throw a rag into

the Pine 4 dorm. Fobb’s testimony from the first trial was read into the record

because he, too, was dead by the time of the second trial. The district court

reasoned that defense counsel in 1998 should have presented Fobb’s medical

records and/or consulted with experts about the records in order to demonstrate

that Fobb’s severe visual impairments rendered it unlikely for him to have seen

what he claimed. The court also found that counsel rendered deficient

performance by failing to make further efforts to locate another inmate, Clarence

Franklin, who had testified at the firsttrialthat Fobb did not see well and would

stumble over things. Because the State refused to stipulate that Franklin was

unavailable in 1998, the trial court refused to allow defense counsel to read

Franklin’s prior testimony into the record.

We conclude that Woodfox failed to demonstrate that counsel was

ineffective for failing to pursue further evidence of Fobb’s vision problems

because the jury was well-aware of Fobb’s limited eyesight from other evidence.

During Fobb’s direct examination by the State, Fobb himself conceded that he

had no vision in his right eye and had severe glaucoma in his left eye. Although

Fobb claimed that he could see well enough at the time of the murder in April

1972, defense counsel extensively cross-examined Fobb about his vision.

Counsel established that Fobb had been completely blind in his right eye since

1967. Counsel also elicited testimony from Sheriff Daniel that Fobb was

considered to be legally blind. Joseph Richey also testified on direct examination

that Fobb was going blind. Counsel further asked Warden Henderson about
No. 08-30958

18 Defense counsel further sought to discredit Fobb before the jury by offering

psychological reports showing that Fobb was mentally retarded.

54

Fobb’s condition, but Henderson was unaware of it.18 Counsel argued to the jury

both in opening and closing statements that Fobb was blind. The question of

Fobb’s credibility due to vision problems was certainly palpable at trial, and

additional medical records and testimony concerning Fobb’s vision would have

been cumulative to evidence already before the jury. See Skinner v.

Quarterman, 528 F.3d 336, 345 n.11 (5th Cir. 2008) (“[A]ny ineffective assistance

claim must falter where the evidence to be discovered is so similar and

cumulative that failure to find and present it would not prejudice the result.”).

The district court noted that two expert witnesses retained by Woodfox as

part of his post-conviction proceedings opined based on a review of Fobb’s

medical records that Fobb was “very probably significantly visually impaired”

at the time of the murder and that it would have been “impossible” for Fobb to

have identified someone 30 to 40 feet away by vision alone. Because there is no

indication in the record that these experts were available to testify and would

have done so at the 1998 trial, there can be no claim of ineffectiveness for failing

to call them as witnesses. See Day, 566 F.3d at 538. Moreover, Fobb never

testified to the exact distance that he was from Woodfox when he saw Woodfox

enter the Pine 1 dorm. We therefore find this evidence not only cumulative but

also speculative.

We also note that counsel conceivably could have had a strategic reason

for not presenting expert and medical record evidence concerning Fobb’s vision.

As part of the defense, counsel called Gary Gremillion, who in 1981 became the

prison’s Classification Administrator,to testify about Fobb’s release on a medical

furlough in 1974. The examination of Gremillion also showed that Fobb was

blind, but defense counsel elicited Gremillion’s view that Fobb did not meet the

usual requirements for a medical furlough, at least under the policies in effect
No. 08-30958

55

when Gremillion became Classification Administrator. Counsel intimated

through Gremillion that Fobb was given special treatment in return for his

testimony against Woodfox. This was consistent with the overall defensive

strategy evident at trial to show that prison officials framed Woodfox and

induced the testimony against him. But counsel arguably could not

overemphasize Fobb’s blindness through the medical records because then it

might look like Fobb deserved the furlough. Instead, counsel suggested that

Fobb’s testimony was “bought and paid for.” While counsel did not ignore Fobb’s

vision, he also presented evidence to suggest that the State essentially bribed

Fobb. We do not find such a trial strategy to have rendered the trial

fundamentally unfair. See Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005)

(“A conscious and informed decision on trial tactics and strategy cannot be the

basis for constitutionally ineffective assistance of counsel unless itis so ill chosen

that it permeates the entire trial with obvious unfairness.”) (internal quotation

marks and citation omitted). 

Furthermore, we believe the absence of additional evidence about Fobb

does not rise to the level of prejudice under Strickland given that Hezekiah

Brown and Joseph Richey also placed Woodfox at the scene of the murder. In

light of this evidence, and our discussion above, we cannot conclude that but for

counsel’s failure to further discredit Fobb’s eyesight there is a reasonable

probability thatthe jury would not have convicted Woodfox. See Strickland, 466

U.S. at 694.

D. Failure to object to hearsay testimony

Woodfox argued in the state and district courts that his trial counsel was

ineffective for failing to object to the State’s questioning of three witnesses that

elicited hearsay responses about statements made by Chester Jackson. Jackson,
No. 08-30958

56

who did not testify in Woodfox’s first trial, pleaded guilty to manslaughter in

connection with Miller’s murder and then testified in 1974 against co-defendants

Herman Wallace and Gilbert Montegut. In 1998, the State sought pre-trial

approval to use Jackson’s 1974 testimony as evidence in Woodfox’s second trial

because Jackson had died in the interim. The Louisiana First Circuit Court of

Appeal ruled that the prior testimony was inadmissible hearsay because

Woodfox never had an opportunity to cross-examine Jackson. Despite this

ruling, Woodfox contends, and the district court agreed, that the State

impermissibly elicited hearsay testimony about an incriminating statement

Jackson gave to prison officials during the murder investigation.

The testimony atissue came from Sheriff Daniel, Warden Henderson, and

Deputy Warden Lloyd Hoyle. Because of their similarity, we first consider the

testimony of Daniel and Henderson. During questioning of Sheriff Daniel about

the investigation of Miller’s murder, the State established that officials took a

statement from Jackson on April 19, two days after the murder and after Daniel

had obtained the statement from Hezekiah Brown identifying Woodfox as the

killer. The prosecution asked whether Daniel had “acquire[d] any information

from Chester Jackson that changed [his] mind about issuing an arrest warrant”

for Woodfox. Daniel responded negatively.

The State similarly cross-examined Warden Henderson, who had been

called by Woodfox, about the investigation. Henderson stated that Hezekiah

Brown had incriminated Woodfox, Wallace, and Jackson, and that prison

officials decided to confront Jackson because he was the “weakest of the three.”

Jackson then gave his statement. When Henderson began to state what Jackson

had said, defense counsel immediately objected. The prosecutor instructed

Henderson not to say what Jackson told him, but asked “did you get any

information from Chester Jackson that contradicted what Hezekiah Brown had

told you about Albert Woodfox’s involvement in this case.” Like Daniel,
No. 08-30958

57

Henderson also responded negatively. Woodfox contends that defense counsel

should have objected to Daniel’s and Henderson’s testimony.

Under the Louisiana rules of evidence, an investigating officer may be

permitted to refer to statements made to him by other persons involved in the

case without it constituting hearsay if it explains his own actions during the

course of an investigation and the steps leading to the defendant’s arrest. See

State v. Watson, 449 So. 2d 1321, 1328 (La. 1984); State v. Edwards, 406 So. 2d

1331, 1349 (La. 1981). This hearsay exception has limits, however, and

generally will not include an “explanation” that “involves a direct assertion of

criminal activity against the accused.” State v. Hearold, 603 So. 2d 731, 737 (La.

1992).

The district court held that the questioning of Daniel and Henderson

indirectly elicited the substance of Jackson’s statement. Woodfox contends on

appealthatthe testimony readily revealed that Jackson had stated that Woodfox

participated in the murder. Under this reasoning, the testimony about Jackson’s

statement would fall outside of the “explanation” exception for hearsay because

it would constitute a direct out-of-court accusation by Jackson against Woodfox.

We conclude, however, that the testimony plainly did not reveal what Jackson

said. It merely demonstrated that during the course of the investigation, Daniel

and Henderson did not learn anything to change their minds about what

Hezekiah Brown told them. This is unlike State v. Wille, 559 So. 2d 1321 (La.

1990), where the Louisiana Supreme Court held that an investigating officer’s

testimony about statements from witnesses improperly revealed the substance

of accusatory hearsay assertions againstthe defendant. The court noted that the

investigator there was careful not to say that the witnesses told him the

defendant killed the victim, but he did say thatthe witnesses led him to conclude

that the defendant was the prime suspect and to believe that the defendant was

responsible for the crime. Id. at 1332 n.8. That is not true here, where Brown
No. 08-30958

19 We also note again that with respect to Henderson’s testimony, defense counsel did

lodge an immediate objection when Henderson was about to state what Jackson said. This

prompted the prosecutor to specifically instruct Henderson not to relate the contents of

Jackson’s statement.

58

had already incriminated the defendant and neither Daniel nor Henderson

stated that Jackson named Woodfox or led them to believe Woodfox was

involved. For all the jury knew from Daniel’s and Henderson’s testimony,

Jackson might have said nothing at all about Woodfox. Therefore, we conclude

that it is not unreasonable to find that counsel was not deficient for failing to

object to the testimony, which otherwise helped explain the course of the

investigation.19

Woodfox’s claim about Deputy Warden Lloyd Hoyle’s testimony requires

a little more discussion, but we conclude that the state court’s denial of relief

with respect to that claim was also not unreasonable. Woodfox’s defensive

strategy throughoutthe trial was to show that prison officials targeted him after

the murder and framed him for the crime because he was considered to be a

troublemaker and a political activist. He claimed that he was immediately

placed in lockdown status as part of a biased investigation and that prison

officials influenced the other inmates to lie about his involvementin the murder.

In support of this theory, defense counsel called Deputy Warden Hoyle and

repeatedly asked Hoyle about whether the pace ofthe investigation had been too

quick and whether Hoyle believed people were blamed who were not involved.

He sought agreement from Hoyle that Woodfox was already a suspect on April

17, the day of the murder, before officials had even interviewed anyone. When

Hoyle’s responses did not support Woodfox’s theory, defense counsel asked the

following questions:

Defense counsel: If I told you that – that Mr. Woodfox was formally

charged by a grand jury in this matter two and a half weeks after

the incident, would that refresh your recollection?
No. 08-30958

59

Hoyle: No it wouldn’t refresh my recollection at all, ‘cause I heard

his name mentioned on the nineteenth.

Defense counsel: Okay. But, that was the first time you – you 

heard his name mentioned.

Hoyle: That’s the only time I heard his name mentioned, by one of

the perpetrators who was with him.

Defense counsel: Okay. But, that was on the nineteenth?

Hoyle: That was on the nineteenth, at the A Building.

Defense counsel then tendered Hoyle for cross-examination, and the

prosecutor immediately asked the following:

Prosecutor: Mr. Hoyle, you – was the nineteenth, that statement

that you’re talking about, was that the statement – was that

Chester Jackson?

Hoyle: That was a prelude to the statement of Chester Jackson.

Prosecutor: And was that the only statement that you were present

for, during the first couple of days?

Hoyle: I didn’t even stay for the statement, basically. I stayed for

the minute that a certain convict walked into that interrogation

room and admitted his role in the thing, and named Woodfox, and

Wallace as the perpetrators of that stabbing. I couldn’t stand even

to be in the room with that pair. I left.

The district court held that defense counsel was ineffective for failing to

objectto this testimony because it directly revealed Jackson’s hearsay statement

thatimplicated Woodfox. The State contends that the testimony was admissible

as relevant to explain the investigation’s progress and also to rebut Woodfox’s

conspiracy theory defense. We agree that because the statement directly

accused Woodfox, the mere fact that it explains the progression of the

investigation “may not be used as a passkey to bring before the jury the
No. 08-30958

60

substance of the out-of-court information that would otherwise be barred by the

hearsay rule.” Hearold, 603 So. 2d at 737. That does not end the matter,

however, because although an investigating official’s testimony explaining his

conduct almost always has only marginal relevance and will generally be

inadmissible when it reveals accusatory hearsay statements, the Louisiana

Supreme Court has indicated that the conduct of an investigating officer will

sometimes need to be explained. Wille, 559 So. 2d at 1331 & n.7. To be sure,

such a necessity will occur “‘only in rare instances,’” id. (citation omitted), and

requires “some unique circumstances in which the explanation of purpose is

probative evidence of a contested fact . . . .” Hearold, 603 So. 2d at 737. We

think the instant case presents the kind of rare instance contemplated by the

Louisiana Supreme Court.

Defense counsel’s direct examination of Hoyle put at issue the

circumstances under which Woodfox became a suspect, particularly when and

how Hoyle first heard Woodfox was suspected. Counsel clearly suggested that

Woodfox was targeted from the start on the investigation. Hoyle’s testimony

directly contradicted thattheory. It was therefore probative of a contested issue

attrial, and we cannot say an objection from counsel would have been sustained.

See id.; see also State v. Guy, 669 So. 2d 517, 525 (La. Ct. App. 1996) (holding

that testimony about informant’s tip was not inadmissible where inter alia the

propriety of the officer’s actions was made relevant by the defense’s theory that

informant was unreliable and was paid to fabricate testimony against

defendant). Furthermore, information learned by investigators during the

course of an investigation will often have an “impermissible hearsay aspect as

well as a permissible nonhearsay aspect,” at which point “the issue of relevancy

becomes significantly interrelated with the hearsay issue.” Wille, 559 So. 2d at

1331. The court is required to “balance the need of the evidence for the proper

purpose against the danger of improper use of the evidence by the jury.” Id.
No. 08-30958

61

This balancing question is an issue for the state court applying state law. On

habeas review we will defer to a state court’s interpretation and application of

state law because we search only for violations of federal law. See Fierro v.

Lynaugh, 879 F.2d 1276, 1278 (5th Cir. 1989).

Woodfox argues that the testimony from Daniel, Henderson, and Hoyle

did not refute his trial defense because it did not explain why prison officials

initially decided to question Jackson, nor did it reveal that Jackson made

allegations that he was beaten during questioning. But Woodfox could have

brought out this information himself, and he makes no allegation that counsel

was ineffective for not doing so. Because Woodfox put the propriety of the

investigators’ conduct at issue in his direct examination as part of his reasoned

trial strategy, and Hoyle’s testimony provided an explanation ofthe conduct, we

conclude that defense counsel was not ineffective for failing to object.

We also agree with the State that Woodfox failed to show prejudice under

Strickland from counsel’s alleged deficiency in failing to object to the testimony

of these witnesses. As noted above, neither Daniel nor Henderson revealed the

substance of Jackson’s statement. And while Hoyle testified that Jackson

incriminated Woodfox, this hearsay testimony was cumulative of testimony from

Hezekiah Brown and Joseph Richey. Because the testimony was cumulative of

other evidence, we cannot hold that but for counsel’s failure to object the results

of the trial would have been different. See Strickland, 466 U.S. at 694; see also

United States v. Allie, 978 F.2d 1401, 1408–09 (5th Cir. 1992) (holding on direct

appealthatimproper admission of hearsay evidence that was merely cumulative

constituted harmless error). We therefore hold that it was not an unreasonable

application of clearly established federal law for the state court to conclude that

Woodfox failed to show his counsel was ineffective for failing to object to the

testimony.

IV. Conclusion
No. 08-30958

20 In addition to his ineffective assistance claims, Woodfox raised a Brady claim in his

§ 2254 petition that the State suppressed investigation notes from Sheriff Daniel that would

have impeached the testimony of Joseph Richey and Paul Fobb. The district court did not

examine the claim “in any great detail,” but it held that the suppressed notes would have

allowed Woodfox to impeach or discredit Richey and Fobb by showing their initial statements

differed from their testimony. After carefully examining the trial transcript and the alleged

inconsistencies in the investigative notes, we conclude that Woodfox’s Brady claim is

unavailing because, despite facial inconsistencies with the testimony, the investigation notes

do not satisfy Brady’s materiality requirement. See Banks v. Thaler, 583 F.3d 295, 311 (5th

Cir. 2009) (suppressed evidence is “material” if “‘there is a reasonable probability that, had the

evidence been disclosed to the defense, the result ofthe proceeding would have been different’”)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

Richey testified on cross-examination that his statements to prison officials were

“exactly” as he testified about seeing Woodfox exit the Pine 1 dorm, but that fact was not

included in Daniel’s note from Richey’s initial statement on April 17, 1972. However, Richey

also specifically testified that he had given a “generic” answer when he was first questioned.

Counsel could have used Richey’s own direct testimony to impeach him on his crossexamination that he had given exactly the same statement. Moreover, Richey’s testimony

alternately referred to statements given to Daniel, Warden Dees, and Captain Dixon on both

April 17 and May 16. It is not at all clear from the transcript that when Richey testified that

his statements to investigators had always been the same as his testimony, he meant that he

discussed Woodfox when he was first interviewed. Such a conclusion is actually contrary to

Richey’s testimony that he gave only a “generic” answer when first questioned.

Fobb testified at trialthat he saw Woodfox enter the Pine 1 dorm, but the investigation

notes show that he initially told investigators that he had remained in his dorm on the

morning ofthe killing and that the dorm man could confirm this. Fobb’s initial statement was

consistent with Sheriff Daniel’s testimony that many of the inmates claimed on April 17 that

they lacked any information about the murder. Indeed, it is hardly surprising that Fobb would

62

This was not a perfect trial, and certainly the jury’s task was complicated

by the great lapse in time between the crime and the trial, which resulted in the

deaths of many witnesses, the loss of memory, and the loss of physical evidence.

Those issues are not uncommon when a defendant is subject to a second

prosecution after an earlier successful appeal. Nevertheless, we must keep in

mind only the clear legal issues presented by the case and the very deferential

scope of review of a state habeas court’s decision, which limits our review to

reasonableness, not whether we think the state court decision was merely

incorrect or erroneous. Under that deferential standard, and for the foregoing

reasons, we conclude that the district court erred in its conclusion that counsel

rendered constitutionally ineffective assistance.20 We therefore VACATE the
No. 08-30958

initially deny seeing anything that morning. Based on our review of the record, we are not

convinced that the investigation notes on Richey and Fobb “‘put the whole case in such a

different light as to undermine confidence in the verdict.”’ Strickler v. Greene, 527 U.S. 263,

290 (1999) (quoting Kyles, 514 U.S. at 435). Therefore, the state court’s denial of habeas relief

on the Brady claim was not unreasonable.

63

district court’s judgment and REMAND for resolution of the only remaining

issue relating to the selection of the grand jury foreperson.

VACATED and REMANDED.
No. 08-30958

64

LESLIE H. SOUTHWICK, Circuit Judge, dissenting.

The majority has given reasonable answers to the factual and legal

questions raised by this appeal. At several points, the questions are difficult

ones regarding the operation of the Antiterrorism and Effective Death Penalty

Act (“AEDPA”). See 28 U.S.C. § 2254(d). I answer a few of the questions

differently than my colleagues, leading me to the opposite overall result. 

The guard who was murdered in 1972 by someone at Angola State Prison

was Brent Miller, a young man who had only recently begun work there. The

viciousness of his murder cannot be overstated. My conclusion, though, is that

the appellee has properly presented a significant flaw in the trial at which he

was convicted. My dissent does not concern whether the appellee was guilty, but

only whether defects in his trial may now be addressed in this court.

The State raised five issues on appeal. I have no disagreement with the

majority on most of them. I also agree with the majority that there is no

violation of the process due to Woodfox when he was retried decades after the

offense occurred. Instead, I discuss only these two issues:

(1) Did the district court consider Woodfox’s claims de novo and without

any deference to the state court’s rulings on them. 

(2) Was there constitutionally ineffective counsel when there was no

objection to reading the testimony of Hezekiah Brown to the jury; he had

testified at the 1973 trial but died prior to the one in 1998.

(1) Standard of Review Applied by the District Court.

A federal court defers to the final decision on the merits of the state court

that ruled on an inmate’s habeas claims that are then brought in federal court.

See 28 U.S.C. § 2254(c). We do not function as a superior state court, reviewing

challenges to convictions as if we were part of the state appellate review system.

Instead, our role is limited though important. The majority and I recognize the
No. 08-30958

65

same standard under AEDPA, namely, that our review usually examines

whether the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or an “unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d). A prerequisite for that level of deference is that the claims must have

been “adjudicated on the merits” in the State court. Id. Even when the claims

were not adjudicated on the merits, we do not analyze them at all if they are

unexhausted. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (“exhaustion

requirementis satisfied when the substance of the federal habeas claim has been

fairly presented to the highest state court.”)

According to the State, the district court looked at Woodfox’s ineffective

assistance of counsel claims without giving any deference to the state court. The

factual foundation for that argument is footnote 15 of the Magistrate Judge’s

report, the entire report then being adopted by the district court. That footnote

expressed the conclusion that the state habeas court had “completely failed to

address” Woodfox’s Due Process and Confrontation Clause arguments, and so

had not decided those issues “on the merits” within the meaning of AEDPA.

This is the Magistrate Judge’s footnote:

While Woodfox asserted this claim (that his indictment should

have been challenged on Due Process and Confrontation Clause

grounds) in his application for post-conviction relief, he also

asserted therein that his counsel should have challenged his

indictment on speedy trial grounds. The state trial court, through

its adoption of the State’s opposition to Woodfox’s post-conviction

relief application as its reasons for denying that application, only

addressed Woodfox’s speedy trial arguments and did not address his

Due Process and Confrontation Clause contentions. Thus, although

Woodfox “fairly presented” his Due Process and Confrontation

Clause contentions for purposes of exhaustion under AEDPA, since

the state court completely failed to address those arguments, this

Court will review those contentions de novo, rather than under the
No. 08-30958

66

deferential standard of review typically used where a state court has

adjudicated a claim on its merits.

For this reasoning,the Magistrate Judge cited Lambert v. Beard, 2007 WL

2173390 (E.D. Penn. 2007). In a parenthetical, the Magistrate Judge explained

Lambert as holding that“if petitioner ‘fairly presented’ a claim to the state court

(i.e., exhausted it), but the state court completely failed to address it, or refused

to consider it because of an inadequate procedural bar, the federal district court

reviews the claim de novo.” Id. at *8 (shown as quoted by Magistrate).

The point is significant, because if the claims were properly presented but

then “not adjudicated on the merits in state court, the deferential AEDPA

standards of review do not apply,” and the claim is reviewed de novo. Henderson

v. Cockrell, 333 F.3d 592, 598 (5th Cir. 2003). 

We are to decide claim by claim the level of scrutiny to give to a state court

habeas ruling under Section 2254. That is because a federal habeas application

is not to be granted “with respect to any claim” that was resolved on the merits

in state court, when the “adjudication ofthe claim” meets the standards that are

set out in the statute. 28 U.S.C. § 2254(d).

The district court considered de novo the admission ofthe Hezekiah Brown

transcript. It is not possible to determine whether that was error without first

examining how the state court considered that claim. I analyze that matter after

addressing some preliminary concerns.

(2) Reading of the Transcript of Hezekiah Brown’s 1973 Testimony.

The majority begins its analysis of the Confrontation Clause issue with a

discussion of whether the claim was exhausted in state court. I agree that

exhaustion must be considered, as there has been no explicit waiver of the point

by the State. I do not similarly begin with that issue, though, because my

discussion of exhaustion will occur during consideration of how the state courts
No. 08-30958

67

resolved the use of the transcript of former testimony. Though I place the

discussion somewhatlater in my analysis than does the majority, simply because

I find it easier to explain at that point, I agree it is a threshold question.

The State captions this Confrontation Clause issue with the assertion that

defense counsel was not ineffective “in failing to make a meritless objection to

Brown’s 1973 Transcript Testimony.” Hezekiah Brown died in 1996. At the

1998 trial, a state investigator sat in the witness chair, reading Brown’s

testimony from 1973 as a prosecutor asked the questions from the transcript.

Defense counsel did not object to the introduction of the testimony.

(a) Brown’s Testimony: Basis of State Court Ruling

A threshold question under AEDPA is whether relief was denied in state

court on the merits of the federal claim. If the state court denied relief on “a

state law ground that is independent of the federal question and adequate to

support the judgment,” we do not consider the federal questions. Lee v. Kemna,

534 U.S. 362, 375 (2002) (citation omitted). The state-law ground can be either

substantive or procedural law. Id. There is an exception to the bar when cause

for and prejudice from the default is shown, or when there has been a

fundamental miscarriage of justice. Lott v. Hargett, 80 F.3d 161, 164 (5th Cir.

1996). Woodfox has not argued these exceptions.

Evaluating whether a substantive or procedural determination was made

by the state district court is conducted through this three-part test:

(1) what the state courts have done in similar cases; (2) whether the

history of the case suggests that the state court was aware of any

ground for not adjudicating the case on the merits; and (3) whether

the state courts’ opinions suggest reliance upon procedural grounds

rather than a determination on the merits.

Mercadel, 179 F.3d at 274 (quoting Green v. Johnson, 116 F.3d 1115, 1121 (5th

Cir. 1997)). The state court that interests us most is the final one, because its

ruling is the effective one. As the majority has discussed, though, there is no
No. 08-30958

1 There is no suggestion Woodfox procedurally stumbled as he sought further review

of the state district court’s decision, thereby creating a new basis for denying relief. 

68

explanation in the two higher court rulings. So we must “‘look through’ to the

last clear state decision on the matter.” Jackson v. Johnson, 194 F.3d 641, 651

(5th Cir. 1999) (citation omitted). The only available evidence of the basis of the

Louisiana Supreme Court’s decision is the state district court’s reasoning.1

I too quote the 21st District Court’s two relevant documents, as they are

the key to what follows. One was an undated “Written Reasons,” which was

followed by a Judgment dated October 25, 2004. The following is the entirety of

the first document except for the case caption and signature:

WRITTEN REASONS

Initially, it should be noted that according to Louisiana Code

of Criminal Procedure Article 930.2, Petitioner has had the burden

of proving thatthe relief he seeks should be granted. He must prove

that he is entitled to such relief. La. C.Cr.P. Art. 930.2, Official

Revision Comment. Accordingly, he has the burden of proof

regarding each ofthe claims upon which he bases his application for

post-conviction relief.

In light of such burden of proof,the Court has fully considered

the application, the answer and all relevant documents and has

determined that Petitioner has failed to carry his burden of proof.

In determining that the Petitioner’s application should be denied,

the Court, moreover, adopts the State’s Response to Application for

Post-Conviction Relief [dated September 30, 2004] as the written

reasons for the Court’s decision.

The Judgment of October 25, 2004, has this relevant language:

JUDGMENT

The allegations presented by Petitioner have been fully

addressed in the State’s Response to Application for Post-Conviction

Relief filed herein by the Louisiana Attorney General’s Office. A

review of the record of these proceedings, as well as the answer,

indicates that there is no need to hold an evidentiary hearing in the

proceedings. For written reasons this day adopted and assigned, the

Court finds that the allegations are without merit and the
No. 08-30958

69

Application may be denied without the necessity of any further

proceedings.

It is true that the district court stated that Woodfox had “failed to carry

his burden” of proving his allegations. The majority concludes that this phrase

constitutes a ruling on the merits regarding every claim. I disagree that this is

a fair reading. Even though the district court did not detail its reasons, it gave

us their location by adopting the State Attorney General’s explanation. 

The majority finds support for its conclusion by giving a dictionary

definition of the word “moreover,” a word that appears in the “Written Reasons”

to preface why the court then refers to the State’s Response. I do not see

“moreover” as a signal that the State’s Response contains other reasons for the

ruling. Instead, the state district court explicitly said that the State’s Response

has the reasons for the ruling. In my dissecting of the state court’s language, I

conclude that the State’s Response contains the specific reasons for the court’s

ruling, issue by issue. The “failed to carry his burden” language is a

generalization which is then given meaning by the State’s Response.

As noted by the majority, the reference to Louisiana Code of Criminal

Procedure Article 930.2 also does not add much to either side of the scales of

whether the ruling was a procedural or a merits-based one. 

Of course,the majority and this dissent are both trying to discern meaning

from sentence structure and word usage in a document in which the writer may

not have been trying to give such refined guidance, but it is all we have. 

Consequently, I turn to the document that was adopted by the state trial

judge as the reasons for the decision. I will use the shorthand of the “State’s

Response” and the “Application for PCR” when referring to these important

documents.

The claim is whether it was error at the 1998 trial to read to the jury the

transcript of Hezekiah Brown’s 1973 testimony. The State’s Response was quite
No. 08-30958

70

brief. “What is very interesting is that, although there is a discussion of the

testimony of Hezekiah Brown included in the Statement of Facts portion of the

[A]pplication [for PCR], there is no mention of it in the Claims for relief section.”

The State then explained how central Brown’s testimony was to the conviction.

Without it, the State claimed, “there would probably be no case.” Two more

paragraphs followed, detailing what Brown had said in 1973. The State neither

analyzed the Confrontation Clause nor made other legal arguments. 

I conclude that the State’s Response took the position that there were no

legal arguments as to Brown’s testimony to which a legal response needed to be

made. This is the argument that the state trial court will be deemed to have

embraced, namely, that the issue was not properly presented. It is the only

written reason the state court could have adopted. Though it is an independent

state ground, it also needs to be an adequate one.

(b) Brown’s Testimony: Adequacy of Independent State Ground

A state court’s declaring procedural default cannot automatically be

accepted as an adequate state ground. If the state’s procedural rule is not

“firmly established and regularly followed,” it will not be considered adequate.

Ford v. Georgia, 498 U.S. 411, 423-24 (1991); Hughes v. Quarterman, 530 F.3d

336, 341 (5th Cir. 2008). A novel state procedural rule, inconsistently applied,

and about which a litigant might have no knowledge, cannot be used to block

review in federal court of the constitutional claim. Ford, 498 U.S. at 424-25.

A foundation for understanding how the issue was presented is to know

the facts underlying it. Factual allegations about Brown appear in Woodfox’s

Application for PCR over a four-page section: Brown received favorable

treatment soon after he identified Woodfox, was moved to much more

comfortable housing, had the warden’s promise to seek a pardon, and otherwise

was given incentives that were not known to the defense at the time of Brown’s
No. 08-30958

71

1973 testimony. He was pardoned in 1986, the result of continuing efforts by the

former warden and other officials. 

Brown’s 1973 testimony denies being promised anything. This excerpt

starts with Brown’s questioning at the prison soon after the murder.

Prosecutor: Did anybody promise you anything to make you tell the

truth?

Brown: Promise me anything?

Prosecutor: Did they?

Brown: No. They didn’t threaten me. I sat there a long time; I

waited before I could say anything. Nobody promised me nothing.

Later, he was asked whether there were promises for his trial testimony:

Prosecutor: Hezekiah, because of your trial testimony here today,

did you – let me ask you this: You stated that no one from the State

promised you anything for this testimony, is that correct?

Brown: That’s right.

Prosecutor: All right, but we did tell you that you would not be put

back in the same place at – 

Brown: That’s right.

Prosecutor: – The penitentiary?

Brown: They told me that.

Prosecutor: – With Albert Woodfox?

Brown: That’s right.

With Woodfox’s second trial near, a hearing on motions was held on July

31, 1998. An assistant attorney general stated that she had asked Murray

Henderson, the Angola warden from 1965 to 1975, if there were “any formal

deals with any of the witnesses,” and was told that the only promise had been

to provide security at the dog pen. 

At the December 1998 trial, though, Henderson testified that, prior to

providing his initial statement on the murder, Brown had already been moved

out of the main prison to the “dog pen,” a minimum security area reserved for
No. 08-30958

72

trustees who looked after the prison’s hunting dogs. Henderson testified in 1998

that he personally promised to seek a pardon for Brown, a pardon ultimately

granted. Brown was serving a life sentence for multiple aggravated rape

offenses and only recently had his death penalty vacated. 

The State characterizes Henderson’s testimony as describing a promise

that was made only after the trial. This is specifically what Henderson said:

Defense: And did you -- did you have any -- did you make any

statements to Hezekiah Brown with regard to what you would do?

Henderson: I told him that we would protect him.

Defense: Excuse me, let me -- let me ask my question[.] What you

would do in exchange for statements about what happened and in

exchange for testimony?

Henderson: I told him that I would protect him.

Defense: And you told him you would protect him, send him to the

dog pen?

Henderson: Do what?

Defense: Send him to the dog pen?

Henderson: Yeah. I don’t remember when I told him that, but I

guess after he gave us the information.

Defense: Didn’t you also tell him that if he gave you the information

and proceeded to testify for the State, that you would also promise

to support a pardon application for him?

Henderson: Yeah, I told him that later, I’ve forgotten when. And

shortly after that, or sometime after that, I was – I went to

Tennessee as Commissioner of Corrections and I went up to the dog

pen and told him that because I was leaving, didn’t mean that I

wouldn’t continue to try to do something for him.

In summary, Henderson testified that he promised to move Brown to a

safer area of the prison. Counsel asked whether he also promised to pursue a

pardon. Henderson answered that the promise about pardon help was made

“later,” meaning later than his first promise. Henderson did not testify that his
No. 08-30958

73

promise was after the trial. Henderson said he left for Tennessee “shortly” or

“sometime after” the promise was made. Henderson left Angola in 1975. 

The first letter from Henderson supporting Brown’s pardon was sent a

month after the 1974 trial of the last inmate indicted for Miller’s murder.

Henderson wrote more letters later. A reasonable, even if not necessary,

inference is a promise to help secure a pardon would not have been held in

reserve, but would have been made to encourage Brown prior to his testimony.

Still, defense counsel did not in 1998 get a firm answer from the former warden

on when the promises were made. Henderson said he had forgotten.

To be clear, this testimony was heard by the 1998 jury. The argument is

that the failure to cross-examine Brown on the promises in 1973 meant that the

transcript of Brown’s testimony should never have been introduced in 1998.

In dealing with the effect of this testimony on the present Section 2254

claims, I first examine the issue of exhaustion. The State’s Response to the

Application for PCR in state court admitted the facts but said that Woodfox’s

attorneys never asked for relief based on this. It took fifty pages for Woodfox’s

Application for PCR to move beyond factual allegations to its claims for relief.

The factual recitation discusses Henderson’s testimony about Brown, saying that

a “vast amount of information of previously-suppressed impeachment evidence

has come to light.” 

The heading in the brief for the first claims is this:

I & II. The Prosecution Presented False Evidence and Withheld

from the Defense Evidence that was Favorable and Material to the

Defense.

Subheading A immediately follows, asserting thatthe State was “obligated

to provide all exculpatory evidence to the defense.” In that subsection, the

caselaw was discussed that supported the principles asserted in the heading and

subheading, without relating the arguments to the facts of his case. Most

relevant to Brown’s testimony, the section analyzed precedents that require the
No. 08-30958

74

prosecution to disclose any agreement it has entered regarding a witness’s

criminal exposure. Giglio v. United States, 405 U.S. 150 (1972); Napue v.

Illinois, 360 U.S. 264 (1959). The Application for PCR also discussed the

seminal case requiring the prosecution to turn over exculpatory information,

namely, Brady v. Maryland, 373 U.S. 83 (1963). 

In all that discussion, Hezekiah Brown was never mentioned, and neither

was anyone else. There was no effort to join the law to the facts of this case.

Brown was not the focus of any later section of the pleading.

In summary, in the Application for PCR, Brown was clearly a principal

concern in its first fifty pages. Then, in the first section of the claims for relief,

legal principles relevant to the promises to Brown are analyzed. Subsection A

appears intended to discuss the alleged defects in Brown’s 1973 testimony and

its introduction in 1998. The caselaw, particularly Napue and Giglio, has little

relevance to anyone else. However, the State’s Response is correct that no relief

specifically identifying Brown was requested. I agree with the majority that

this Application for PCR presented no coherent argument on Confrontation.

The state district court’s response to this filing met all three components

of the Mercadel test for whether a court ruled on a state procedural ground.

That ground was failure to argue the claim regarding Brown in the Application

for PCR. I realize that the majority has looked just as carefully at the same

materials and found this clearly to have been a merits-based ruling. The points

of departure for our rather disparate decision are what to make of the reference

in the “Written Reasons” to Woodfox’s not carrying his burden of proof, to the

incorporation of the State’s Response, and to the actual arguments made by the

State in that Response. I have set out my analysis of those already.

Because Woodfox’s Application for PCR was “held” to have insufficiently

presented the claim regarding Brown, the adequacy of such a ruling needs to be

determined. I look for a state rule that describes an applicant’s obligations. I
No. 08-30958

75

find there must be a “statement of the grounds upon which relief is sought,

specifying with reasonable particularity the factual basis for such relief.” La.

Code Crim. Proc. Ann. art. 926 B(3). The final section of that article states this:

“Inexcusable failure ofthe petitioner to comply with the provisions ofthis Article

may be a basis for dismissal of his application.” Id. § 926 E. 

Woodfox’s lengthy Application for PCR was part petition and part brief.

The State’s Response was also in the form of a brief as well as an answer. There

is no argument that this was procedurally improper under Louisiana law.

I find no presentation requirements set out in the Louisiana Code of

CriminalProcedure for post-conviction written legal arguments in district court.

Louisiana caselaw reveals that some flexibility is permitted, particularly when

the presentation is pro se (this one was not). For example, an inmate filed an

application that neither assigned nor briefed any errors; it was dismissed after

the district court granted an extension of time to correct. State v. Anderson, 561

So. 2d 1391, 1392 (La. App. 5 Cir. 1990). The Louisiana Supreme Court has held

that a district court should exercise discretion when deciding whether, in the

interests of justice, an applicant for post conviction relief should be allowed to

amend a timely filed but poorly drafted application. State ex rel. Glover v. State,

660 So. 2d 1189, 1197 n.8 (La. 1995), abrogated on other grounds, State ex rel.

Oliveri v. State, 779 So. 2d 735, 742 (La. 2001). Only “[i]nexcusable failure” to

comply with the provisions should cause dismissal. La. Code Crim. Proc. Ann.

art. 926 E. 

The particular defect argued by the State, valid as far as it went, would

have earned a bad grade in legal drafting but hardly prevented the substance of

the claim from being understood. I am uncertain whether the shortcomings in

the Application for PCR would even be considered a failure under article 926 to

state the “grounds.” If so, before the state district court dismissed for the failure

in Woodfox’s pleading to tie the facts regarding Brown to the law of Brady and
No. 08-30958

2 Of course, I have only imputed this reasoning to each state court. There is some

artificiality to this process for understanding the state court’s application of its procedural

rules. Still, we are required to proceed this way. 

76

Giglio, some consideration was supposed to be given to whether, in the interests

of justice, allowing an amendment would be justified to remove ambiguity in the

legal presentation.2 Finally, nothing suggests that this sloppiness would be

thought “inexcusable failure” of compliance. 

In some state court precedents, there was evidence available of a state

court practice contrary to the one under review. For example, we rejected a

Texas procedural ruling that an objection was inadequate at trial to preserve an

issue. Rosales v. Dretke, 444 F.3d 703, 708 (5th Cir. 2006). We found that the

Texas Court of Criminal Appeals often showed more tolerance for the inartful

objections made at trials held before the relevant federal constitutional issues

under Batson had been identified. Id. (discussing Batson v. Kentucky, 476 U.S.

79 (1986)). A more recent decision found that a state procedural rule barring a

claim was “strictly or regularly applied evenhandedly” to most claims. Turner

v. Quarterman, 481 F.3d 292, 301 (5th Cir. 2007).

Woodfox has the burden to show that the procedural rule is not “regularly

applied, . . . or that the rule was exorbitantly applied under the circumstances

of the case.” Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006) (internal

quotations and citations omitted). There was no discovered practice of zerotolerance for post-conviction application inadequacy. Ford, 498 U.S. at 425. To

the contrary, caselaw and the Louisiana Code of Criminal Procedure are fairly

forgiving. The burden was carried to show that the state courts did not apply a

firmly established, regularly applied rule.

Though the state ground was inadequate, the issue still had to be

exhausted in state court. Mercadel, 179 F.3d at 275. In Mercadel, we concluded

that the inmate’s improper filing in the state Supreme Court as opposed to a
No. 08-30958

77

state district court was the procedural reason for the dismissal; it was also the

reason the claims were unexhausted. Id. 

I do not find that same difficulty here. There must be a fair presentation

of the claim, including presenting it in a “procedurally correct manner.” Deters

v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). Thwarting the state procedures by

not adequately presenting an issue so that the state courts will consider it

constitutes a failure to exhaust. Mercadel, 179 F.3d at 275. 

Among the minimum requirements of a fair presentation is that the

inmate be clear that he is making a claim under the federal constitution and not

solely under state law. Duncan v. Henry, 513 U.S. 364, 365 (1995) (inmate

argued in state court that an erroneous evidentiary ruling was a “miscarriage

of justice”; not until federal court did he make a claim of a Due Process

violation). We have used “substantial equivalent” as the degree of similarity

needed between the state and federal claims. Whitehead v. Johnson, 157 F.3d

384, 387 (5th Cir. 1998). The purpose being served is that a state court must be

given the “opportunity to pass upon and correct” the alleged errors in the

conviction. Duncan, 513 U.S. at 365 (quoting Picard v. Connor, 404 U.S. 270,

275 (1971)). 

It is not necessary to cite “book and verse on the federal constitution,” but

the substance must be presented. Picard, 404 U.S. at 278 (quotation omitted).

We have referred to a need to present the “same facts and legal theory” before

we will find an issue exhausted in state court. Ruiz v. Quarterman, 460 F.3d

638, 643 (5th Cir. 2006). The legal theory presented in state court must not be

“distinct” from the one presented in federal court. Id.

Applying those principles, I conclude that Woodfox clearly was making a

federal constitutional claim. An application in state court for post-conviction

relief, perfect upon its filing in its research, reasoning, and presentation, is not

necessary. When the application is dismissed prematurely on inadequate state
No. 08-30958

78

grounds, the processes of the adversary system that can lead to amendments of

pleadings and arguments are short-circuited. It would only be speculation as to

what would have happened in state court, including how the presentation of the

legal arguments might have developed. Speculation serves no analytical

purpose. Because Woodfox’s case should have been allowed to proceed further,

I would not now fault him for what he had not yet argued before the dismissal.

The only basis before us for the dismissal was the one adopted by the district

court, then approved by the reviewing courts. That basis was inadequate.

Because the state courts did not reach the merits, because they relied on

an inadequate state ground, and because the issues were fairly presented, I turn

to the merits. Powell v. Quarterman, 536 F.3d 325, 343 (5th Cir. 2008).

(c) Analysis of Legal Issues Regarding Brown’s Testimony

The majority analyzes the merits through AEDPA deference. However,

for AEDPA’s standards to apply to our merits analysis, the claims must have

been adjudicated on the merits. 28 U.S.C. § 2254(d)(1); Henderson, 333 F.3d at

598. Of course, the majority says they were. Because I have concluded that the

merits were never reached and an inadequate procedural ground was the basis

for denial of relief, I examine the claim under pre-AEDPA standards.

Henderson, 333F.3d at 598. “The pre-AEDPA standards do not require a federal

court to defer to the state court’s legal conclusions.” Kunkle v. Dretke, 352 F.3d

980, 985 (5th Cir. 2003). On collateral review, we apply the law at the time the

conviction became final, with certain narrow exceptions. Teague v. Lane, 489

U.S. 288, 310 (1989). For purposes of retroactivity analysis, this date is

November 13, 2001, when the Supreme Court denied certiorari to review

Woodfox’s direct appeal. See Beard v. Banks, 542 U.S. 406, 411 (2004). 

The first claim raised by Woodfox in his amended Section 2254 application

was a Confrontation Clause and Due Process violation resulting from the use of

Brown’s testimony in the 1998 trial. Both the federal and the state rules of
No. 08-30958

79

evidence regarding the use of prior sworn testimony were cited. The violation

was said to arise from the absence of an adequate opportunity to cross-examine

Brown on the key items of impeachment. Woodfox cited Confrontation Clause

jurisprudence that developed after his conviction became final. See Crawford v.

Washington, 541 U.S. 36 (2004). Also woven into the argument was the issue of

the State’s failing to disclose the exculpatory and impeachment material. See

Brady, 373 U.S. 83. The claim is properly seen as a hybrid of failure to disclose

and, on that basis, an inadequate opportunity to cross-examine.

Woodfox’s argumentis built on the foundation that his multiple 1998 trial

counsel were ineffective in failing to make the proper objections to reading

Brown’s 1973 testimony into the record. A claim seeking relief for ineffective

assistance of counsel requires showing both that counsel performed deficiently,

and that the deficiencies were prejudicial to the defense. Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). Prejudice means “thatthere is atleast

‘a reasonable probability that, but for counsel’s unprofessional errors, the result

ofthe proceeding would have been different.’” Neal v. Puckett, 286 F.3d 230, 241

(5th Cir. 2002) (en banc) (quoting Strickland, 466 U.S. at 694). 

Crawford v. Washington, cited by Woodfox, was decided after Woodfox’s

conviction became final and is not to be applied retroactively. Whorton v.

Bockting, 549 U.S. 406, 421 (2007). Instead, the relevant Supreme Court

precedent is Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, an out-of-court

declarant’s testimony was admissible provided it either fell under a “firmly

rooted hearsay exception” or bore other “adequate indicia of reliability.” Id. at

66; United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004). The parties do

not dispute that a firmly rooted hearsay exception existed for sworn testimony

given at an earlier proceeding. The following is the language from the state

evidentiary rule describing the former testimony whose admission was firmly

rooted:
No. 08-30958

3 Wallace v. State, No. 10-73-6820 (19th Jud. Dist., Oct. 9, 2007); writ den’d, 2007 KW

2525 (La. App. 1st Cir. 2008) (one judge dissenting on Brady issue).

80

Testimony given as a witness at another hearing of the same or a

different proceeding, ifthe party against whom the testimony is now

offered, or, in a civil action or proceeding, a party with a similar

interest, had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination.

La. Code Evid. Ann. art. 804(B)(1); Avants, 367 F.3d at 445 (holding that the

Fed. R. Evid. 804(b)(1) exception, equivalent to La. Code Evid. Ann. art.

804(B)(1), was a firmly rooted hearsay exception). 

The district court found that Woodfox’s first trial counsel lacked the

“opportunity” to make a sufficient cross-examination “regarding the prospect of

a pardon and incentives” for his cooperation. This was because the state had

“suppressed” information regarding those issues at the time of the first trial.

While no court has ever found a Brady violation with respect to the incentives

offered Brown and others, a commissioner reviewing a state habeas claim in

2006 found such a violation and recommended vacating the conviction of another

inmate convicted for the murder. By a supplement to the record, the State filed

the order ofthe 19th Louisiana District Courtthat rejected the recommendation

and denied relief in 2007.3

The Roberts test is disjunctive; a search for particularized “indicia of

reliability” is only required when a statement does not fall under a firmly rooted

hearsay exception. Fratta v. Quarterman, 536 F.3d 485, 499-500 (5th Cir. 2008).

This controversy concerns the firmly rooted exception for prior testimony, and

it is that principle I explore.

This court once “declined to decide whether ineffective or minimal

examination of the witness” was sufficient to bar admission of a record of the

prior testimony. Magouirk v. Warden, Winn Corr. Ctr., 237 F.3d 549, 554 (5th

Cir. 2001). We held that if trial court interference prevented any cross-
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examination, testimony from a prior court proceeding was inadmissible due to

the absence of an opportunity for questioning the witness. Id. 

Among the authorities on which we relied was one in which at a

preliminary hearing, some cross-examination of the later unavailable witness

had occurred. Mechler v. Procunier, 754 F.2d 1294, 1297-98 (5th Cir. 1985).

Even though defense counsel in the earlier proceeding had not yet seen the

ballistics and autopsy reports, we held that the cross-examination “was neither

de minimis nor ineffective.” Id. at 1298. The unavailable witness, Frances Wise,

was the only eyewitness to the murder. She notified authorities that she was

leaving the state, and her testimony was preserved at a hearing in which crossexamination by defense counsel occurred. That testimony was then introduced

at the trial over a defense objection. The autopsy and ballistics report had not

yet been provided to counsel at the time of the hearing.

Chief Judge Clark, writing for the court, identified the following

components of meaningful cross-examination:

Wise’s testimony, like that at question in Roberts, was tested

“with the equivalent of significant cross-examination.” 448 U.S. at

70, 100 S.Ct. at 2541. As in Roberts, the questioning of Wise clearly

partook of cross-examination as a matter of form, replete with

leading questions, “the principal tool and hallmark of crossexamination.” Id. at 70-71, 100 S.Ct. at 2541. In addition,

Mechler's counsel’s questioning comported with the principal

purpose of cross-examination: “to challenge whether the declarant

was sincerely telling what [s]he believed to be the truth, whether

the declarant accurately perceived and remembered the matter [s]he

related, and whether the declarant’s intended meaning is

adequately conveyed by the language [s]he employed.” Id. at 71,

100 S.Ct. at 2541.

Id.

Questioning an eyewitness about ballistics results and an autopsy is a test

of the plausibility of the story. The witness might become less certain as a

result, but it is the kind of doubt that jurors themselves can grasp with some
No. 08-30958

4 Though the decision does not become precedential for this reason, I note that all three

judges deciding Monaco were on this court prior to the 1981 split of the Fifth Circuit.

82

equivalence. If the witness has no known bias, her sincerity is not the question.

On the other hand, questioning a man who was serving a life sentence about

what specific promises might have been offered him for a pardon is a direct

challenge to his honesty, something only the witness can answer. How

believably he answers can be critical. The Mechler reasoning is valid and

supportive of Woodfox’s claim because of this distinction.

The opportunity to cross-examine must be a meaningful one. “In some

cases, however, because of particular circumstances, the opportunity to crossexamine at the earlier proceeding may not have resulted in a test of the

reliability of the statement.” 5 JACK B. WEINSTEIN & MARGARET A. BERGER,

WEINSTEIN’S FEDERAL EVIDENCE § 804.04[3][b] (Joseph M. McLaughlin ed., 2d

ed. 2009). Among the citations for that statement was a decision in which the

earlier cross-examination was of a witness whose violation of the sequestration

rule was not known until after his testimony. United States v. Monaco, 702 F.2d

860, 866 (11th Cir. 1983).4 The court found no evidence that the witness’s

improper conversations with two other witnesses led to a tailoring of his

testimony to match theirs. Id. at 868. The court concluded that because the

violation did not relate to the substance of his testimony, it did not affect the

admissibility of the prior testimony. Id.

These prior decisions properly isolate the narrow concern relevant in the

present case. Each of those decisions stopped short of opining on a situation in

which the unknown impeachment evidence that could not be used in the earlier

cross-examination would affect the core of that prior testimony. That could be,

as here, because of powerful incentives at work on the witness, or for other

reasons. It is necessary to go a step further than any of these precedents.
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As mentioned, the claim has been presented as a hybrid of Brady and

Giglio principles. I find no evidence that the prosecution in 1973 or even in mid1998 knew what the warden said he promised. Even so, the intent of the State

to withhold evidence is not key. In Giglio,the Supreme Court acknowledged the

uncertainties about whether the Government had been aware of the promises

made to a key witness against Giglio. The Court found the doubts to be

irrelevant due to the importance of the witness.

Here the Government’s case depended almost entirely on

Taliento’s testimony; withoutitthere could have been no indictment

and no evidence to carry the case to the jury. Taliento’s credibility

as a witness was therefore an important issue in the case, and

evidence of any understanding or agreement as to a future

prosecution would be relevant to his credibility and the jury was

entitled to know of it. 

Giglio, 405 U.S. at 154-55.

It seems to me that these are the key facts. (1) At least as early as the

State’s Response to the Application for PCR, the State had acknowledged that

Brown was the indispensable witness to its case. (2) Yet unknown at the time,

this inmate serving a life sentence, who only recently had been freed from a

death sentence, was allegedly promised the best efforts of the warden to get him

pardoned. 

The imprecision in how the former warden in 1998 expressed the date of

the promise has already been noted. I have already discussed that this issue

properly received de novo review in the District Court, including as to the facts.

We are to examine the District Court’s finding on this factual issue for clear

error. Lefevre v. Cain, 586 F.3d 349, 352-53 (5th Cir. 2009). It was a reasonable

finding by the District Court that such a promise would have been offered as a

pre-trial carrot and not as post-trial lagniappe – a word appropriately

originating in Louisiana to describe a gratuity. 8 OXFORD ENGLISH DICTIONARY
No. 08-30958

5 The Supreme Court emphasized that the Confrontation Clause is founded on the need

for the accused to be able to face the accuser when the accusations are being made to a jury.

The Court gave a “notorious” example of why that is crucial by describing the 1603 trial of Sir

Walter Raleigh for treason. Crawford v. Washington, 541 U.S. 36, 44 (2004). Introduced into

evidence was a letter and prior testimony of one of his alleged accomplices. Raleigh thought

the witness would recant if called to face him, but the judges refused. Id.

84

590 (2d ed. 1989). I therefore find we should sustain the finding that at the time

Brown testified, he did so with a promise of the warden’s help to get a pardon.

Of course, the 1998 jury knew about the promise from the warden. That

is not enough. Cross-examination is not replicated when the witness never has

to respond to the impeaching evidence. See United States v. Garcia, 530 F.3d

348, 353 (5th Cir. 2008) (“Only through live cross-examination can the

fact-finder observe the demeanor of a witness, and assess his credibility.”)

(quoting Int’l Shortstop Inc. v. Rally’s Inc., 939 F.2d 1257, 1265-66 (5th Cir.

1991)). There would be no need to determine whether prior cross-examination

was “meaningful” if it were always sufficient that the unknown subjects for

questioning at the first trial were explained at the second.5

I have not discussed any precedent directly on point, as I have found none.

The search for precedents far from its jurisdiction can deflect a court from

making a careful analysis of a somewhat novel issue. Nonetheless, I find an

opinion reviewing a quite similar set of facts from the Supreme Court of

Pennsylvania. Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992). Melvin

Hauser was the state’s only witness at a preliminary hearing. It became known

later that Hauser had made a prior inconsistent statement to police, had a

criminal record, and thatthe prosecutor was contemplating charges against him

concerning the same attempted burglary for which Bazemore was being

prosecuted. None of these facts were known to defense counsel when crossexamining Hauser at the preliminary hearing.
No. 08-30958

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At trial, Hauser invoked his Fifth Amendment rights. The Pennsylvania

Supreme Court reasoned that Bazemore had not been given a “fair opportunity”

to cross-examine the witness earlier. 

The real basis for the admission of testimony given by a witness at

a former trial is to prevent the miscarriage of justice where the

circumstances of the case have made it unreasonable and unfair to

exclude the testimony. It naturally follows that testimony from the

former trial should not be admitted if to do so would result in a

miscarriage of justice.

Id. at 686 (quoting 29 AM. JUR. 2D EVIDENCE § 738).

The Pennsylvania court also said that even though cross-examination had

occurred, the fact that counsel had not known of the significant impeachment

evidence keptthe witness’s recollections from being “fully tested” by the defense.

Id. at 687. The court did not find the harm removed by allowing other witnesses

at trial to testify about the inconsistent statement and other evidence. Their

testimony would not be a complete picture of the responses the witness might

otherwise have made when faced directly with impeachment evidence. 

The mere opportunity to impeach an unavailable witness indirectly

is obviously not the same thing as the opportunity to cross-examine

(and impeach) the witness directly. Had the defense in this case

had the opportunity to confront Hauser directly and to crossexamine him directly with the benefit of the vital withheld

information, Hauser may have recanted his prior testimony or he

may have made other responsive statements or reactions which

would have strengthened appellant’s defense by casting doubt upon

Hauser’s credibility or his prior inconsistent account of the

circumstances in question. The introduction of such impeaching

information indirectly is clearly an inadequate substitute for a full

and fair opportunity to examine the witness himself or herself.

Id. at 688 n.4. See also, 4 HANDBOOK OF FEDERAL EVIDENCE 804:1; 2 WHARTON'S

CRIMINAL EVIDENCE 6:10.40 (15th ed.) (citing Bazemore for these points).

The extra step for Woodfox’s argument is that defense counsel did not

object in 1998. Ineffective assistance of counsel analysis thus applies. Because
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the indispensable Hezekiah Brown’s testimony from the 1973 trial could not be

admitted in 1998, it was ineffective assistance of counsel for Woodfox’s attorneys

not to have objected based on Ohio v. Roberts. The precise error was not settled

law, but counsel’s failure to make a strenuous effortto raise these principles and

seek exclusion fell below minimum competence. Prejudice from that failure is

clear, as excluding the testimony would have likely ended the case.

This determination requires that the writ of habeas corpus be granted,

vacating the state court judgment of conviction. The district court was correct

when it did exactly that.

I would affirm the grant of relief.