UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

___________

No. 99-41216

____________

ALBERTO VALDEZ,

Petitioner - Appellee,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justi c e,

Institutional Division,

Respondent-Appellant.

Appeal from the United States District Court

for the Southern District of Texas, Corpus Christi

April 12, 2002

ON PETITION FOR REHEARING EN BANC

(Opinion 12/3/01, 5th Cir., 2001, 274 F.3d 941)

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The court having been polled at the request of one of the members of the court and a majority

of the judges who are in regular active service not having voted in favor (F ED

. R. A PP

. P. and 5 TH

C IR . R. 35), the Petition for Rehearing En Banc is DENIED.1 See Valdez v. Cockrell , 274 F.3d 941, 950–51 (5th Cir. 2001).

2 Valdez v. Johnson, 93 F. Supp. 2d 769, 776 (S.D. Tex.1999) (quoting State Hrg. on Prop.

Find. & Concl. Law, 144–45).

-2- JAMES L. DENNIS, Circuit Judge, joined by JACQUES L. WIENER, JR., HAROLD R. DeMOSS,

JR., and ROBERT M. PAR KER, Circuit Judges, dissenting from the denial of the Petition for

Rehearing En Banc:

Before the court is a panel opinion holding that a full and fair hearing in state court is not a

prerequisite to the application of 28 U.S.C. § 2254’s “deferential scheme.” 1 Because this

interpretation of the AEDPA precludes meaningful review of state court decisions render ed in a

pro cedurally defective manner, this case merits the full attention of this court. Therefore, I

respectfully dissent from the denial of rehearing en banc.

The parties present a habeas court with opposing views or beliefs concerning the underlying

facts and procedural process that resulted in a criminal conviction. But the only way for the habeas

court to know what went on at trial is to read the transcript. Review of the reco rd is particularly

important when the habeas judge did not preside over the criminal trial. The state habeas judge in

Alberto Valdez’s case was not the trial judge, and he admitted, in cavalier fashion, that he was not

familiar with the record: “I have never read the record of the trial and I don't intend to. I don't have

the time.” 2 Nevertheless, the state habeas court issued findings of fact and conclusions of law denying

Valdez relief.3 372 U.S. 293 (1963).

4 161 F.3d 1249 (10th Cir. 1998).

5 See Tow nsend , 372 U.S. at 312–13.

6 Id. at 316.

7 Miller , 161 F.3d at 1254 (internal quotation and citation omitted).

-3- Valdez later file d a federal habeas petition, and the district court granted relief on his

ineffective assistance of counsel claim. The district court was certainly aware of the AEDPA and the

r espect that it bestows on a state habeas court’s adjudication on the merits. It also recognized,

however, that the state habeas judge’s failure to read the record denied Valdez a full and fair hearing

on a federal constitutional claim. The court therefore found that § 2254(e)(1)’s presumption of

correctness and § 2254(d)’s standards of review were largely inapplicable. In reaching this

conclusion, the court rel

i ed on the Supreme Court’s decision in Townsend v. Sain 3 and the Tenth

Circuit’s opinion in Miller v. Champion

. 4 In T ownsend

, the Court held that a federal evidentiary

hearing is mandatory if the habeas applicant did not receive a full and fair hearing in state court. 5 In

a mandatory federal evidentiary hearing, “it is the federal judge’s duty to disregard the state findings

. . . .” 6 The Miller court observed, in a post-AEDPA case, that the denial of a full and fair hearing

in state court still renders inoperative the statutory presumption of correctness:

[Although] [f]ederal courts entertaining habeas petitions must give a presumption of

correctness to state courts' factual findings,

... [t]his presumption of correctness does

not apply ... if the habeas petitioner did not receive a full, fair, and adequate hearing

in the state court proceeding on the matter sought to be raised in the habeas petition. 78 Stewart v. Martinez-Villareal

, 523 U.S. 637, 64 4 (1998). The Suprem e Court recentl y

rejected a Fifth Circuit interpretation of the AEDPA in favor of a more stringent habeas review of

state court decisions. S ee Williams v. Taylor

, 529 U.S. 362 (2000) (rejecting the “reasonable jurists”

standard adopted by this court in Drinkard v. Johnson

, 97 F.3d 751, 769 (5th Cir. 1996), in favor of

an “objectively unreasonable” standard). See also Max-George v. Reno , 205 F.3d 194 (5th Cir.

2000), overruled by INS v. St. Cyr , 533 U.S. 289 (2001).

9 See Miller

, 161 F.3d at 1254 (“[B]ecause the state court did not hold any evidentiary hearing,

we are in the same position to evaluate the factual record as it was. Accordingly, to the extent the

state court’s dismissal of Mr. Miller’s petition wa s based on its own factual findings, we need not

afford those findings any deference.”).

-4- Tod ay, a majority of this court takes a different approach from our sister circuit and again

disregards the Supreme Court’s warnings against interpreting the AEDPA in a manner that produces

“far-reaching and seemingly perverse” implications for habeas practice. 8 The panel opinion insulates

a state habeas court’s decision on a federal ineffective assistance of counsel claim, which is highly fact

specific, from meaningful review in a federal habeas court without regard to the quality of the state

court’s fact- finding pro cedure. But if a full and fair hearing is not a prerequisite to a state-court

adjudication on the merits that is entitled to deference in federal court under the AEDPA, then state

courts are free to (1) rubber-stamp the prosecuting body’s proposed findings of fact and conclusions

of law, (2) deny the petitioner relief without affording him a hearing, and (3) effectively prevent a

federal court from later granting the requested relief. I do not believe that the AEDPA left the Great

Writ so impotent. 9 According to one leading scholar:

A change of that kind wou ld be dramatic and not something that anyone

wo uld lightly read into the [AEDPA] . . . . One can imagine that, in so me

circumstances at least, serious constitutional questions would be raised by a rule that

requires a federal court to accept a factual finding made in state court, with no written

statement of the finding on which to focus and with no ability to assess the process10 Larry W. Yackle, Federal Evidentiary Hearings Under the New Habeas Corpus Statute

, 6 B.U. P UB

. I NT

. L.J. 135, 140–41 (1996).

11 28 U.S.C. § 2254(d)(2).

12 28 U.S.C. § 2254(e)(1).

-5- out of which that finding emerged and the evidence on which it was based.

. . . .

I read § 2254(e)(1) to drop the specific procedural and substantive standards

contained in the former § 2254(d). But I do not read it to dispense with a federal

court's rudimentary responsibility to ensure that it is deciding a constitutional claim

based on factual findings that were forged in a procedurally adequate way and were

anchored in a sufficient evidentiary record. In this sense, § 2254(e)(1) departs from

prior law, but only to substitute general notions of procedural regularity and

substantive accuracy for detailed statutory standards. 10

The AEDPA repealed former § 2254(d) and replaced it with two new provisions dealing with

state co urt fact-findings and fact-finding procedures, 28 U.S.C. §§ 2254(d)(2) and 2254(e)(1). A

United States district court has the authority to grant a writ of habeas corpus where the state-court

adjudication of the claim “resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 11 But this authority must

be interpreted in relation to the congressional directives that “a determination of a factual issue made

by a State court shall be presumed to be correct,” and that a habeas petitioner “shall have the burden

of rebutting the presumption of correctness by clear and convincing evidence.” 12 In my dissent from13 See Valdez v. Cockrell , 274 F.3d 941, 968 (5th Cir. 2001) (Dennis, J., dissenting).

1 4 1 R ANDY H ERTZ & J AMES S. L IEBMAN

, F EDERAL H ABEAS C ORPUS P RACTICE AND

P ROCEDURE § 20.2c, at 826 (4th ed. 2001).

15 Valdez v. Cockrell , 274 F.3d at 951 n.17.

-6- t he panel majority’s opinion, I stated that § 2254(d)(2) and §2254(e)(1) must be read i n pari

materia

. 13 Doing so leads to the conclusion that the “‘determination[s] of a factual issue made by a

State court’ that section 2254(e)(1) tells cou rt s to ‘presume[] to be correct’ are only those

determinations that survive section 2254(d)(2)’s winn owing out of ‘ unreasonable

determination[s].’” 14 The panel majority, however, found what it considered to be “an easier way to

harmonize § 2254(d)(2) and § 2254(e)(1)” and offered the following example:

[A] district court may find by clear and convincing evidence that the state court erred

with respect to a particular finding of fac t , t hus rebutting the presumption of

correctness with respect to that fact. S ee § 2254(e)(1). It is then a separate question

whet her the state court's determination of facts was unreasonable in light of t he

evidence presented in the state c ourt proceedi ng. S ee § 2254(d)(2). Thus, it is

possible that, while the state court erred with respect to one factual finding under §

2254(e)(1), its determination of facts resulting in i t s decision in the case was

reasonable under § 2254(d)(2). 15

This explanation

makes sense in cases where the petitioner received a full and fair hearing in state

court. If the state court does not afford such a hearing, a federal evidentiary hearing is mandatory16 See, e.g., Hughes v. Johnson , 191 F.3d 607, 630 (5th Cir. 1999).

17 28 U.S.C. § 2254(d)(2).

18 See 1 H ERTZ & L IEBMAN

, supra note 14, § 20.2c, at 825–31.

19 See Morris v. Cain

, 186 F.3d 581, 584 (5th Cir.1999) (“A full and fair ad judication of a

petitioner’s claims in state court is a prerequisite for application of AEDPA’s review provisions.”);

Corwin v. Johnson

, 150 F.3d 467, 471 (5th Cir.1998) (“In this Circuit, provided the state court

conducted a

full and fair adjudication of the petitioner’s claims, pure questions of law and mixed

questions of law and fact are reviewed under § 2254(d)(1), and questions of fact are reviewed under

§ 2254(d)(2).”).

20 See supra text accompanying note 10.

-7- under Townsend

. 16 It is here that the panel majority’s explanation places the district judges in this

circuit in a difficult position by requiring a district court, after spending time and energy conducting

an evidentiary hearing, to disregard the evidence developed before it and instead give deference to

a state-court decision made through defective process or on an incomplete record. This court would

achieve better results if it recognized that the denial of a full and fair hearing in state court produces

per se “an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 17 Such a p er se rule would be fully consistent with the text of the AEDPA. 18 Moreover,

it would continue a consistent theme in our jurisprudence recognizing that we defer to a state habeas

court so l o ng as it delivers a real decision on the merits based on a procedurally reasonable

determination of the facts. 19 Finally, it would avoid the serious constitutional questions raised by the

panel majority’s interpretation of the AEDPA. 20

ENDRECORD-8-

Judges Wiener and Parker join Judge Dennis’s dissent and write separately to add the following:

The crux of the majority’s opinion is that application of the AEDPA’s deferen c e scheme

swings on whether the state habeas court reached an “adjudication on the merits.” The majority’s

“logic” simplist ically reasons that (1) anything

—— everythin g —— that is not “procedural ” i s

autom ati cally “substantive”; (2) any ruling that is “substantive” is an “adjudication on the merits”;

ergo , (3) any non-procedural ruling is an adjudication on the merits and is immunized from federal

habeas review under the AEDPA’s deference scheme. As accepted by the majority, this flawed

syllogism eviscerates meaningful federal habeas review of a state court’s flaunting abdication of its

duty to apply “the law of th[e Supreme] Court to the facts of a prisoner’s case.” Valdez , 274 F.3d

at 946-47. When, as here, the state h abeas judge delays a determination for six years of inaction

between two perfunctory hearings, loses the exhibits in the meantime, and announces that he is too

busy to acquaint himself with the case by reading the trial transcript, we cannot credit that judge’s

putting pen to paper and rubberstamping the state’s proposed findings as being an “adjudication on

the merits.” If this court’s level of deference extends to what happened in this case, t hen federal

habeas review has been reduced to nothing more than a search for the state judge’s signature

——

a classic example of exalting form over substance.

ENDRECORD-9-

Judge DeMoss joins in Judge Dennis’ dissent f or t he reasons stated therein and for the

additional reason that the only reason this habeas matter is under AEDPA is the ineptitude of the state

habeas judge in taking six years to reach a final decision on petitioner’s claims.