Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31174

DAVEON MCCULLOUGH,

Petitioner–Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent–Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 1:05-cv-00674

Before JONES, Chief Judge, and BENAVIDES and PRADO, Circuit Judges.

PER CURIAM:*

Daveon McCullough, pro se, appeals the district court’s denial of his

petition for a writ of habeas corpus. A Louisiana jury convicted McCullough of

second degree murder and sentenced him to life without the possibility of parole.

McCullough argues that the state court infringed his right to due process when

it excluded statements provided by his co-perpetrators that did not implicate

him in the murder, in violation of Chambers v. Mississippi, 410 U.S. 284, 302

(1973). 

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2010

Charles R. Fulbruge III

Clerk

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Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we may not grant a writ of habeas corpus with respect to a claim

decided on the merits in state court unless the state court’s judgment “resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C § 2254(d)(1). Because McCullough has not

demonstrated that the Louisiana court unreasonably applied Chambers to the

facts of his case, we affirm the denial of his petition.

I. FACTUAL AND PROCEDURAL HISTORY

The details of the brutal murder giving rise to this case, in which a group

of young men bludgeoned to death an eighty-two year old woman, are thoroughly

recounted in the Louisiana Third Circuit Court of Appeals’s opinion affirming

McCullough’s conviction on direct review. See State v. McCullough, 774 So. 2d

1105, 1108–12 (La. Ct. App. 2000). At McCullough’s trial, the State introduced

testimony from Jerry Joseph and William Wansley, both of whom implicated

McCullough in the murder. No other State witnesses testified to McCullough’s

involvement, and the State did not introduce any physical evidence tying

McCullough to the crime.

Joseph was connected to the murder by Fredrick Gradley, who confessed

his involvement to police and implicated four others, but did not mention

McCullough’s involvement. Upon his arrest, Joseph provided a statement to

police that inculpated four others, including McCullough. Joseph subsequently

testified for the State in McCullough’s trial pursuant to a favorable plea

agreement, and provided the only first-hand account of McCullough’s

involvement.

The State also introduced the statement of Wansley, who briefly shared

a jail cell with McCullough. Wansley testified that when he asked whether

McCullough was entitled to a trial separate from his co-perpetrators,

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 The Louisiana Court of Appeals limited its consideration to Gradley’s, Bush’s, and

1

Howard’s statements, and they are the only statements currently before us.

3

McCullough stated that he believed he could “beat the charge,” but admitted his

involvement in what he described as a gang initiation attack. The State did not

promise Wansley any leniency for his testimony, and Wansley testified that he

knew nothing of the murder before this conversation with McCullough. 

McCullough proclaimed his innocence, asserted an alibi defense, and

accused Joseph and Wansley of lying. To bolster his arguments, McCullough,

through pre-trial motions in limine, sought to introduce the out-of-court

statements of Gradley, Fredrick Bush, Cedric Howard, and two others charged

with the murder after anticipating that these declarants would assert the Fifth

Amendment privilege against self-incrimination if called as witnesses. Gradley, 1

Bush, and Howard had all provided statements to police, none of which

implicated McCullough in the crime. 

Gradley’s statement to detectives inculpated himself and four others, and

not only led to the issuance of arrest warrants for those he named, but was also

admitted into evidence at his trial, which resulted in a conviction for first degree

murder and a sentence of death. Howard, however, denied his involvement in

the murder, and instead told police that he had overheard several others discuss

their plans to commit the crime before it occurred. Likewise, Bush, whom

McCullough described as his “half-brother,” gave two statements—one

sworn—that attempted to deflect attention from his involvement. He reported

that Joseph and one other individual confessed their involvement after the fact

and threatened to falsely implicate others if the police caught them. None of

these three mentioned McCullough at any point.

The state court deferred ruling on the motions until trial, at which point

it denied all five after commenting that it would be unfair to introduce the

statements because the State did not have the chance to cross-examine the

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declarants. McCullough then called Gradley, Bush, and Howard as witnesses,

and all three immediately asserted their Fifth Amendment rights and refused

to testify. McCullough’s counsel made no attempt to compel their testimony, but

instead argued, to no avail, for the introduction of the declarants’ prior

statements to police.

After his conviction, McCullough argued to the Louisiana Court of Appeals

that the trial court erroneously denied his motions in limine. The state appellate

court recognized that under Chambers, a defendant’s fundamental right to

present witnesses in his own defense may require a court to admit hearsay

testimony given “considerable assurance of [the statements’] reliability.”

McCullough, 774 So. 2d at 1124 (alteration in original). It held, however, that

because McCullough had failed to establish the reliability of the statements he

sought to admit, the trial court did not err when it excluded them. Id. at 1125.

Subsequently, the Louisiana Supreme Court denied McCullough’s petition for

state post-conviction relief. See State v. McCullough, 806 So. 2d 669 (La. 2002).

McCullough then filed a petition for federal habeas relief in the Western

District of Louisiana, asserting, inter alia, that the state trial court judge

violated his right to put forth a defense and therefore denied him due process of

law under Chambers. The magistrate judge recommended that the district court

grant McCullough habeas relief after concluding that all three excluded

statements had sufficient indicia of reliability to meet the Chambers standard

and tended to support McCullough’s asserted innocence. The magistrate judge

also concluded that McCullough’s state trial court judge erred because the

prosecutor’s lack of ability to cross-examine witnesses was “not a valid reason

for excluding the hearsay statements,” and that the state trial court judge should

have questioned the witnesses’ assertion of privilege and inquired into the

reliability of the proffered statements.

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 McCullough’s petition also asserted a Brady violation and a claim for ineffective 2

assistance of counsel. The district court denied his petition on those grounds as well, and

McCullough failed to secure a COA as to those issues. 

5

Initially, the district court adopted the magistrate judge’s report and

recommendation in its entirety, and granted McCullough a conditional writ of

habeas corpus. After two days, however, the district court withdrew the grant

for reconsideration, and issued a denial approximately ten months later. After

identifying two possibilities for finding that the state court violated

McCullough’s right to due process—that (1) the declarants did not have a Fifth

Amendment privilege and were available to testify, or (2) the state court should

have admitted their testimony as an exception to the hearsay rule—the district

court discredited both. 

Specifically, the district court held that the trial judge had no affirmative

duty to probe a witness’s assertion of a privilege when the assertion is not

facially spurious and where the objecting party’s attorney fails to raise the issue.

The district court also held that the state court of appeals did not unreasonably

apply Chambers, nor did it erroneously conclude that the declarants’ statements

were not reliable enough to give rise to a due process violation. McCullough

requested a certificate of appealability (“COA”), which the district court denied.

We, however, subsequently granted a COA on the sole issue of whether the

exclusion of the statements deprived McCullough of his right to put forth a

defense in violation of the Due Process clause. Pursuant to that grant,

McCullough appealed the district court’s denial of his habeas petition.2

II. STANDARD OF REVIEW

We review the district court’s findings of fact for clear error and its

conclusions of law de novo. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.

2003) (citing Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002)). Because the

state court ruled on the merits of McCullough’s claim, AEDPA governs our

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review and provides that we “must defer to a state court’s resolution of questions

of law and mixed questions of law and fact unless the state court’s ‘adjudication

of the claim . . . resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.’” Fields v. Thaler, 588 F.3d 270, 273

(5th Cir. 2009) (quoting 28 U.S.C. § 2254(d)(1)). “A state court’s decision is

contrary to clearly established federal law if it ‘applies a rule that contradicts the

governing law set forth’ in Supreme Court cases or ‘if the state court confronts

a set of facts that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from [the Court’s]

precedent.’” Id. (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000))

(alteration in original). 

Likewise, “[a] state court’s decision involves an unreasonable application

of clearly established federal law if the state court ‘correctly identifies the

governing legal rule but applies it unreasonably to the facts of a particular

prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 407–08). The Supreme Court

has held that “[f]or this standard to be satisfied, the state court decision must

have been objectively unreasonable, . . . not just incorrect or erroneous.” Wiggins

v. Smith, 539 U.S. 510, 511 (2003) (internal citation omitted). We review only

the reasonableness of the state court’s ultimate decision, and not the written

opinion explaining that decision. Schaetzle, 343 F.3d at 443 (citing Neal v.

Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)).

III. DISCUSSION

McCullough argues that under the Supreme Court’s decision in Chambers,

the state court’s exclusion of the three proffered statements to the police violated

his right to put forward a defense. In Chambers, a state court barred the

introduction of evidence that another individual had confessed to the murder for

which the petitioner had been charged. 410 U.S. at 291–92. Specifically, the

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petitioner called the declarant, the declarant repudiated his previous four

confessions, and the state court barred the petitioner’s attempts to challenge the

repudiation with evidence of the declarant’s prior out-of-court statements. Id.

at 290–91. 

The Supreme Court reversed, noting first that the extent to which the

declarant’s “sworn confession tended to incriminate him, it tended also to

exculpate” the petitioner, because the state’s evidence precluded the theory that

more than one person committed the murder. Id. at 297. Additionally, although

the petitioner offered hearsay statements, he did so “under circumstances that

provided considerable assurance of their reliability,” including that “each of [the

petitoner’s] confessions was made spontaneously to a close acquaintance shortly

after the murder had occurred,” that “each one was corroborated by some other

evidence in the case,” that “each confession . . . was in a very real sense

self-incriminatory and unquestionably against interest,” and finally, that the

declarant “was present in the courtroom and was under oath,” and therefore

“[h]e could have been cross-examined by the State, and his demeanor and

responses weighed by the jury.” Id. at 300–01. The Court held that the

exclusion of “critical” exculpatory evidence accompanied by considerable proof

of reliability denied the petitioner “a trial in accord with traditional and

fundamental standards of due process.” Id. at 302.

The Chambers Court explicitly limited its holding, stating that “[i]n

reaching this judgment, we establish no new principles of constitutional law. . . .

Rather, we hold quite simply that under the facts and circumstances of this case

the rulings of the trial court deprived [the petitioner] of a fair trial.” Id. at

302–03. Years later, the Court described Chambers as “an exercise in highly

case-specific error correction,” and noted that “the holding of Chambers—if one

can be discerned from such a fact-intensive case—is . . . that erroneous

evidentiary rulings can, in combination, rise to the level of a due process

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violation.” Montana v. Egelhoff, 518 U.S. 37, 53 (1996). We have further

construed Chambers as standing “for the limited proposition that ‘certain

egregious evidentiary errors may be redressed by the due process clause.’” Little

v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998) (quoting Barefoot v. Estelle, 697

F.2d 593, 597 (5th Cir. 1983)).

McCullough has not shown that the state court unreasonably applied the

Chambers holding to the facts of his case. We have described the petitioner’s

trial in Chambers as “a palpable miscarriage of justice” because “the state court

had excluded evidence that strongly pointed the finger of guilt at [the

declarant],” and the declarant’s “inculpation spelled [the petitioner’s]

exculpation.” Maness v. Wainwright, 512 F.2d 88, 91 (5th Cir. 1975). In this

case, however, none of the excluded testimony clearly exculpated McCullough.

Gradley’s sworn confession to police implicated himself, Joseph, and three

others in the group murder, but did not mention McCullough’s involvement.

Significantly, McCullough does not argue that Gradley told police that

McCullough was not involved; rather, he simply points out that Gradley never

mentioned his name. It is unclear from the record whether Gradley intended to

exhaustively list his co-perpetrators, and Joseph’s statement to police—which

implicated McCullough and three others not named by Gradley—suggests that

he did not. 

Similarly, Bush’s and Howard’s statements do not exculpate McCullough.

Howard mentioned that he overheard several individuals planning the murder,

and although he did not mention that McCullough helped plan the crime, he also

did not testify as to those who actually carried out the offense. Likewise, Bush’s

statement recounted a conversation in which two individuals admitted their

participation in the murder after it occurred. Although Bush did not mention

McCullough, he also failed to mention Gradley—the first to confess his

involvement to the police—which detracts from the weight of McCullough’s

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 McCullough also makes a conclusory remark that the trial judge erred by failing to 3

question Gradley, Bush, and Howard as to whether the had correctly asserted their Fifth

Amendment privileges. The three declarants had already been convicted and sentenced to

death for their participation in the murder, and because Gradley and Howard’s convictions

and sentences had been affirmed by the Louisiana Supreme Court, it appears that they may

not have had a valid Fifth Amendment privilege to assert. See State v. Smith, 687 So. 2d 529,

542 (La. Ct. App. 1996). At trial, however, McCullough did not object to their assertion of

privilege, and on appeal, he does not cite any caselaw suggesting that the trial judge had an

affirmative duty to investigate the declarants’ assertion more thoroughly. Assuming that an

error occurred, however, we note that it would not rise to the level of a due process violation

warranting habeas relief, largely because McCullough has not argued that any testimony at

trial by declarants would exculpate him. 

9

assertion that his absence from Bush’s statement exculpated him from the

crime.

Additionally, the statements do not share the same “considerable

assurance of . . . reliability” that the Supreme Court found persuasive in

Chambers. 410 U.S. at 300. Bush and Howard gave their statements in an

attempt to exculpate themselves; in other words, they were not “in a very real

sense self-incriminatory and unquestionably against interest.” Id. Howard did

not provide a sworn statement, and although Bush gave one of his two

statements to police while under oath, McCullough describes Bush as his “half

brother,” which, if anything, raises questions as to the reliability of Bush’s

failure to mention McCullough’s involvement.

Gradley’s statement presents a closer question, as his sworn confession to

police clearly went against his penal interest. The police found his statement

reliable enough to issue warrants for the arrest of those he implicated, and the

state court found it reliable enough to introduce against him at his trial. On the

other hand, Gradley’s assertion of his Fifth Amendment privilege rendered him

unavailable as a witness and thus not subject to cross-examination, which

prevented the State from examining the veracity or accuracy of his confession.3

These distinctions convince us that McCullough has not demonstrated that the

state court unreasonably applied Chambers’s narrow holding.

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IV. CONCLUSION

After reviewing the state courts’s ultimate conclusion on McCullough’s

Chambers claim, we cannot say that it “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C §

2254(d)(1). Because the statements McCullough proffered had neither the

exculpatory effect nor the indicia of reliability necessary to the Chambers

holding, McCullough has not demonstrated a due process violation. We

therefore affirm the district court’s order denying his petition for habeas relief.

AFFIRMED. 

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