UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-50694

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIC ALAN GIACOMEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

September 15, 1998

Before POLITZ, Chief Judge, WIENER and DENNIS, Circuit Judges.

POLITZ, Chief Judge:

Eric Alan Giacomel appeals the denial of his 28 U.S.C. § 2255 petition for

habeas corpus, seeking a remand for a new evidentiary hearing, contending that the

district co urt erred in accepting the magistrate judge’s credibility determination

based in part on a witness’s oral affirmation of an earlier affidavit.

A magistrate judge conducted an evidentiary hearing on Giacomel’s claims,1 Other claims were raised below, but abandoned on appeal. Askanase v. Fatjo

, 130

F.3d 657, 668 (5th Cir. 1997) (“All issues not briefed are wa ived.”). Nevertheless, these

issues appear to have been resolved in the proceedings on the 18 U.S.C. § 3582(c) motion.

2 including his contention that his trial attorney failed to inform him of his right to

app eal. 1 The government filed an affidavit from Giacomel’s trial counsel, Alan

Brown, in which counsel attested that he advised Giacomel about his appellate

rights and the time limits involved but, after discussion, Giacomel agreed that an

appeal would be frivol ous and decided against same. At the evidentiary hearing

Brown testified that he had read and signed the a ffidavit and that the statements

therein were true and correct. Although Brown testified extensively, on direct and

cross, about his representation of Giacomel, he was not otherwise questioned about

the appeal issue. Giacomel testified that he did not discuss his appellate rights with

counsel and, although informed by the court at sentencing of his right to appeal, he

was never informed of the time limits involved.

The magistrate judge found, based on her “fir st-hand examination of attorney

Brown and the movant at the evidentiary hearing,” that Brown’s testimony in his

affidavit was credible and that Giacomel was not credible. She recommended that

relief be denied. Giacomel filed objections, challenging the magistrate judge’s

credibility determinations. In making its d e novo review, the district court noted

that the only evidence contradicting Brown’s affidavit was Giacomel’s testimony,2 Louis v. Blackburn , 630 F.2d 1105 (5th Cir. 1980).

3 which the magistrate judge found incredible. The district court found no basis to

question the magistrate judge’s credibility assessments and adopted same, denying

the requested § 2255 relief.

We find no error in the district court’s acceptance of the magistrate judge’s

credibility calls. In determining the credibility of a witness the fact finder closely

observes the witness, as demeanor is a critical factor therein. 2 The magistrate judge

obviously did this when she heard both Brown’s and Giacome l’s testimony and

viewed and assessed their demeanor. Brown’s oral affirmation of the contents of

his affidavit constituted testimony on which a credibility determination could be

made. A requirement that a witness may not affirm through oral testimony prior

statements made under oath, but must also laboriously restate each, would merely

place form over substance. The affidavit at issue was filed in the record and

available to the parties, and Brown was subject to cross-exam ination. The

magistrate judge’s acceptance of the prior sworn statements made by Brown, an

attorney with 25 years experience, which he affirmed in his oral testimony, was the

product of a credibility assessment that satisfies due process requirements.

The district court was not required to rehear the testimony on which the

magistrate judge based her findings and recommendation to make an independent3 Id. ; United States v. Raddatz , 447 U.S. 667 (1980).

4 evaluation of credibility when, as here, those findings were accepted. 3 We perceive

no error in the district court deferring herein to the magistrate judge’s credibility

findings; the record adequately supports them.

The judgment appealed is AFFIRMED.