IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20890

DANIEL JAMES SIXTA

Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.

DENNIS, Circuit Judge:

Petitioner Daniel James Sixta (“Sixta” or “the petitioner”), a Texas state

prisoner, appeals the district court’s grant of summary judgment to Respondent

Rick Thaler (“the respondent”) on his petition for habeas relief made pursuant

to 28 U.S.C. § 2254. Sixta moved for a certificate of appealability (“COA”) on

various grounds, and we granted his request as to a single issue: Whether the

respondent in a § 2254 proceeding is constitutionally obliged to serve his answer

and any exhibits thereto on a habeas corpus petitioner. We conclude that the

applicable procedural rules require the respondent in a § 2254 proceeding to

serve both the answer and any exhibits attached thereto on the habeas

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2010

Lyle W. Cayce

Clerk

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petitioner, and we therefore do not reach the constitutional question presented.

The respondent complied with these procedural rules because he properly served

the answer, to which there were no attachments or exhibits, on Sixta. We

accordinglyaffirm the district court’s grant of summary judgment and denial of

habeas relief. We also deny the remainder of Sixta’s motion for a COA.

I. BACKGROUND

A jury convicted Sixta of intoxication manslaughter in Texas state court

in December 2002. The trial court sentenced him to 20 years imprisonment. His

conviction was affirmed on direct appeal. The Texas Court of Criminal Appeals

refused his petition for discretionary review, and the United States Supreme

Court denied his petition for a writ of certiorari.

The evidence at trial established the following facts: Sixta drove Carolyn

Messen, a longtime friend and sometime girlfriend, to a beauty salon at

approximately 3:00 p.m. on the day in question. Sixta then went to a pool hall

and returned to pick up Messen about three hours later. Messen could tell that

Sixta had been drinking. The two went to dinner at a nearby restaurant and

Sixta continued to drink. After dinner, the couple went to a bar where they

played video games, and each of them had more than one drink at the bar.

Messen testified at trial that, on the way home from the bar, Sixta was driving

aggressively and a bit too fast. A car driven by Martha Alford made a left turn

in front of Sixta’s vehicle, and the two vehicles collided. Alford’s sister, Linda

Coble, was a passenger in Alford’s car. Coble was killed in the accident. Officer

David Pearson, who performed an accident reconstruction at the scene,

determined that Sixta had been speeding prior to the accident. Blood samples

taken after the accident revealed that Sixta’s blood alcohol content was nearly

three times the legal limit, and Pearson concluded that Sixta’s intoxication

caused the accident. The jury found Sixta guilty.

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After the Texas state courts denied his application for collateral relief,

Sixta filed the instant § 2254 petition in the federal district court. In his

petition, Sixta challenged various aspects of his trial and conviction proceedings,

claiming, inter alia, that his trial counsel rendered ineffective assistance and

that the prosecution engaged in misconduct.

The district court ordered the respondent to file an answer.

Approximately two weeks before filing an answer, the respondent on his own

initiative filed a complete set of the state court records with the district. The

respondent then filed an answer to Sixta’s petition and urged the district court

to deny Sixta’s claims. The respondent, however, did not attach any exhibits or

portions of the state court record to the answer. The respondent served his

answer on Sixta, but none of the state court records.

Throughout the proceedings below, Sixta expressly moved for copies of the

state court record and informed the district court of his need for those

documents. After the respondent answered, Sixta filed a motion to stay and

abate the proceedings so that he could obtain copies of the state court records

“from the Clerk of the Court.” Specifically, he requested that the district court

clerk loan him the state court records or that it furnish him a copy of those

records at Sixta’s expense. Sixta asserted that he needed the state court records

so that, inter alia, he could submit them to an accident reconstruction expert and

so that he could adequately reply to the respondent’s answer. The respondent

opposed Sixta’s request. The district court denied the motion. Sixta thereafter

wrote again to the district court clerk inquiring as to the cost and method for

purchasing the trial transcripts and records. The district court docket sheet does

not reflect that Sixta ever received a reply to his inquiry.

Sixta then filed a motion seeking leave to file an amended petition. The

district court found that Sixta was attempting to assert four new claims, that

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three of the new claims were unexhausted and that all were frivolous, and thus

denied the motion to amend as futile.

Noting that the respondent’s answer cited legal precedent and facts

outside the petition, the district court construed the respondent’s answer as a

motion for summary judgment and ordered Sixta to respond to that motion.

Sixta subsequently filed his opposition to the respondent’s summary-judgment

motion. In addition to responding to the merits of the respondent’s motion, Sixta

sought to have the district court order the respondent to serve him with copies

of the state court records that it had submitted to the court in support of its

summary-judgment motion. Sixta asserted that, without the state court records,

he was unable to adequately respond to specific factual assertions made by the

respondent. He also asserted that the respondent had a constitutional duty to

serve him with those documents filed in support of its answer. Alternatively,

Sixta requested to borrow the state court papers from the court and averred that

he would return them to the district court at his own expense.

The district court entered a memorandum opinion granting summary

judgment in favor of the respondent and denying Sixta’s claims. Accordingly,

the district court dismissed Sixta’s § 2254 petition, and it sua sponte denied him

a COA. The district court denied Sixta’s timely motion for reconsideration, but

granted him leave to proceed in forma pauperis. Sixta timely applied and moved

for a COA on five issues. We granted a COA on the service issue presented here,

and have not yet ruled on the remaining issues for which he seeks a COA.

II. STANDARD OF REVIEW

The district court’s interpretation of procedural rules is reviewed de novo,

as are any constitutional questions raised by this appeal. Knight v. Kirby Inland

Marine, 482 F.3d 347, 355 (5th Cir. 2007); United States v. Perez-Macias, 335

F.3d 421, 425 (5th Cir. 2003).

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III. DISCUSSION

This appeal asks us to determine whether the respondent in a § 2254

proceeding is constitutionally obliged to serve his answer and any exhibits

thereto on a habeas corpus petitioner. We first consider any preliminary

procedural questions (i.e., whether the habeas petitioner has a procedural right

to service of the answer and any exhibits attached thereto) that might render

resolution of the constitutional questions unnecessary. See Slack v. McDaniel,

529 U.S. 473, 485 (2000) (“The recognition that the ‘Court will not pass upon a

constitutional question although properly presented by the record, if there is also

present some ground upon which the case can be disposed of’ allows and

encourages the court to first resolve procedural issues.” (quoting Ashwander v.

TVA, 297 U.S. 288, 347 (1939) (Brandeis, J., concurring))).

In § 2254 proceedings, the Rules Governing Section 2254 Cases (the

“Habeas Rules”), in combination with the Federal Rules of Civil Procedure (the

“Civil Rules”), provide the applicable procedural law. See Habeas Rule 1(a)

(“These rules govern a petition for a writ of habeas corpus filed in a United

States district court under 28 U.S.C. § 2254.”); Fed. R. Civ. P. 1 (“These rules

govern the procedure in all civil actions and proceedings in the United States

district courts.”). When they conflict, the Habeas Rules control. See Habeas

Rule 12 (“The Federal Rules of Civil Procedure, to the extent that they are not

inconsistent with any statutory provisions or these rules, may be applied to a

proceeding under these rules.”); Fed. R. Civ. P. 81(a)(4)(A) (“These rules apply

to proceedings for habeas corpus . . . to the extent that the practice in those

proceedings . . . is not specified in a federal statute, the Rules Governing Section

2254 Cases, or the Rules Governing Section 2255 Cases.”).

Habeas Rule 5(a) requires the respondent in a § 2254 proceeding to file an

answer to the petition when the “judge so orders.” Habeas Rule 5(b) prescribes

the required contents of the answer, specifying that it “must address the

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allegations in the motion” as well as procedural bars to adjudication on the

merits. Habeas Rule 5(c) requires that the answer “indicate what transcripts

. . . are available, when they can be furnished, and what proceedings have been

recorded but not transcribed.” Finally, also under Habeas Rule 5(c), “[t]he

respondent must attach to the answer parts of the transcript that the

respondent considers relevant.”

When the respondent does, in fact, attach exhibits to the answer, there can

be little dispute that those exhibits must be served together with the answer

itself on the habeas petitioner. Civil Rule 5(a) provides that “a pleading filed

after the original complaint” “must be served on every party.” In turn, Civil Rule

7 lists “an answer to a complaint” as a “pleading” and Civil Rule 10(c) provides

that “[a] copy of a written instrument that is an exhibit to a pleading is a part

of the pleading for all purposes.” Considered together, the rules plainly require

that the respondent serve both the answer and any exhibits attached thereto on

the habeas petitioner.

We thus agree with the Fourth Circuit’s decision in Thompson v. Greene,

427 F.3d 263 (4th Cir. 2005), which also reached this conclusion. Thompson

involved a § 2254 proceeding, in which the respondent filed an answer that

“contain[ed] twenty Exhibits.” Although the respondent served the text of the

answer on the petitioner, he neglected also to serve the attached exhibits. See

id. at 265. The Fourth Circuit held that the Habeas and Civil Rules required

service of those exhibits. See id. at 267. First, the Fourth Circuit reasoned that,

under the habeas and civil rules, the “exhibits contained in the habeas corpus

answer” are part of the answer itself for all purposes. See id. at 268. Second, the

Fourth Circuit rejected the respondent’s argument that the applicable rules do

not require service of even the answer: “Although the Habeas Rules do not

explicitly require service of the answer on the petitioner, such service—an

elementary step in litigation in our judicial system—was plainly contemplated

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when the Rules were promulgated by the Supreme Court in 1976. . . . Moreover,

the Civil Rules clearly mandate service on an adversary of pleadings and their

contents.” Id. at 268-69. Finally, the Fourth Circuit concluded that it is

irrelevant under the applicable rules whether (1) the habeas petitioner already

does or should possess the documents; (2) that he can obtain the documents by

court order; or (3) that the respondent has a general policy of not serving the

documents when it would be too expensive. “Each of these contentions borders

on the frivolous.” Id. at 271. The Fourth Circuit accordingly vacated the district

court’s dismissal of the petitioner and remanded for further proceedings. See id.

Sixta relies heavily on Thompson in arguing for overturning the district

court’s judgment but, in doing so, fails to recognize a material difference between

Thompson and the instant case: The respondent here never purported to attach

the state court record, or any portions of it, as an exhibit to the answer. As

explained above, while the respondent filed the entire state court record with the

federal district court, he did so approximately a week or more before filing his

answer. Moreover, the answer does not have any attachments or exhibits, and

only cites to the state court record. Because the respondent in fact served the

answer—and there were no exhibits to serve together with the answer—the

respondent satisfied his procedural obligations insofar as they required him to

serve the answer and the exhibits, if any, on the petitioner.

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This appeal does not call for us to determine whether and to what extent

the applicable procedural rules or the Constitution required the respondent to

attach portions of the state court record as exhibits to his answer. In particular,

we do not address the nature of the respondent’s duty and discretion under

Accordingly, we need not determine whether the United States Constitution requires 1

respondents to serve their answers and any exhibits on § 2254 habeas petitioners. Moreover,

finding no error here, we need not determine whether the failure to comply with the rules’

service requirement is subject to harmless-error review, or whether that failure is a structural

error, as Sixta argues. 

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Habeas Rule 5(c) to attach those portions of the transcript that he “deems

relevant.” First, those issues are outside of the scope of the COA that Sixta

requested and that we granted. “We have jurisdiction to address only the issue

specified in the COA.” United States v. Daniels, 588 F.3d 835, 836 (5th Cir.

2009) (citing Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997)). Second, and

in any event, the parties have not adequately briefed or argued these additional

questions, and they are therefore waived. See United States v. Thames, 214 F.3d

608, 611 n.3 (5th Cir. 2000); see also Fed. R. App. P. 28(a)(9)(A) (“[T]he argument

. . . must contain: [the] appellant’s contentions and the reasons for them, with

citations to the authorities and parts of the record on the which the appellant

relies.”). We thus leave open the possibility that the respondent was

procedurally or constitutionally required to attach some portion of the state

court records as exhibits to the answer, and then to serve those exhibits together

with the answer pursuant to the applicable procedural rules.

* * *

Sixta has also moved for a COA as to four other issues, which we have not

yet considered. Sixta seeks a COA as to whether: (1) the district court erred in

denying his motion to amend his petition to include unexhausted claims as

futile; (2) the district court erred in dismissing certain claims as procedurally

defaulted; (3) the district court erred in concluding that Sixta’s trial counsel did

not render ineffective assistance in failing to consult an accident reconstruction

expert and in advising Sixta not to accept the a plea offer; (4) the prosecution

engaged in misconduct by soliciting knowingly perjured testimony.

A COA may be granted only if the movant makes a substantial showing

of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). As to those

claims on which the district court denied relief on procedural grounds, “a COA

should issue . . . [if] the prisoner shows, at least, that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

Having reviewed Sixta’s motion and the record, we conclude that Sixta has failed

to make the requisite showing as to the additional issues for which he seeks a

COA.

IV. CONCLUSION

Accordingly, we AFFIRM the district court’s judgment denying Sixta’s

petition for habeas relief, and DENY the remainder of his motion for a COA.

AFFIRMED; COA DENIED.

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