IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10270

ERNEST GEORGE MCBRIDE,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

September 16, 1997

ON REHEARING

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

We sua sponte withdraw our prior opinion at 1 18 F.3d 432, which held AEDPA to be

applicable, and substitute the instant opinion.

This habeas corpus case p resents the question of whether Ernest G. McBride’s Sixth

Amendment right to confront and cross-examine an adverse witness was violated when his parole was

revoked on the basis of h earsay testimony. Despite being acquitted of sexual assault (the jury

deliberated five minutes), the Texas Board of Corrections nevertheless revoked McBride’s parole

solely on the basis of a police officer’s testimony as to what the alleged victim of the sexual assault

told the officer. Although the alleged victim testified at trial, she never appeared before the parole

board, and the State presented no evidence showing good cause excused the alleged vict im’s absence.

After exhausting his state habeas remedies, McBride sought federal habeas relief. The magi strate1 McBride’s parole officer, Thomas Blevins, filled out an emergency warrant, and he described the

“circumstances of the offense” as follows:

Complainant stated she was walking on a sidewalk when release e grabbed her and stated

“You white bitch, if you call the police I will kill you”. Rel easee put one hand over

complainant’s mouth and then hit her several times. Releasee then dragged complainant into

a parking lot[] pay attendant booth and forcibly had vaginal intercourse.

2 judge rejected McBride’s contentions, and the district court adopted the magistrate’s conclusions of

fact and law. We granted a Certificate of Appealabilit y o n t he sole question of whether the State

deprived McBride of the right to cross-examine and confront an adverse witness during his parole

revocation hearing. Finding a violation of McBride’s Sixth Amendment rights, we REVERSE and

REMAND this case to the district court with directions to send the case back to the parole board so

that McBride may receive a new revocation hearing.

BACKGROUND

Ernest G. McBride was sentenced to two life sentences in 1976 for aggravated robbery. He

was paroled in 1988. Approximately four years after his release on parole, McBride was charged

with sexually assaulting Tawanna Illescas. After McBride was initially arrested, he was released

because Illescas declined to press charges. However, law enforcement officers thereafter ran

McBride’s name through an FBI computer and di sco vered that he had a criminal record. Law

enforcement then contacted Illescas, and at that point she agreed to press charges. McBride was

subsequently rearrested and a grand jury charged him with sexual assault.

In the meantime, a warrant ordering McBride’s arrest on a parole-violation charge was

issued. 1 In particular, the basis for arresting McBride was that he violated Rule 2 of his parole, which

provided the following: “I recognize that my parole release is conditional and agree to abide by the

following terms and conditions:

. . . 2. Obey all municipal, county, state, and federal laws.” On June

1, 1992, Parole Officer Thomas Blevins explained McBride’s rights in the parole revocation process

to him and informed McBride that he was charged with violating Rul e 2 as a result of Illescas’s

accusations. McBride refused to sign the documents that showed that he was so informed. McBride

did, however, request a preliminary revocation hearing, which was held on June 15, 1992.2 Both the preliminary revocation hearing as well as the final revocati on heari

ng were tape

recorded. The testimony, however, was never transcribed. In addition, we note that much of the tape

is h ard to hear because of background noise and because participants simply did not speak loud

enough. For example, McBride’s attorney cross-examined detective Stanley McNear (t he State’s

only witness), yet on our copy of the tape, the attorney cannot be heard. Only McNear’s answers are

audible.

Moreover, side A of the tape cuts off as McBride’s attorney is speaking and begins on side B with

McBride in mid-sentence saying “. . . we don’t get along.” We have listened to the tape numerous

times and we are unable to say with any degree of certainty that side B picks up where side A left off.

We must therefore conclude that some statements made at the hearing were never picked up on the

audio tape, thereby depriving us of a complete source of objective evidence of what occurred during

the parole revocation hearings. This is troubling for obvious reasons: Because these hearings

implicate constitutionally protected liberty interests (here, McBri de faced a life sentence), it is

paramount that meaningful appellate review be based on a complete and accurate record.

3 A. The Preliminary Revocation Hearing 2

At the preliminary hearing, McBride was informed that he had the right to call witnesses on

his behalf. McBride immediately became concerned and responded as follows:

What [am] I supposed to do? They, they can’t even find her [i.e., Illescas] right now.

What [am] I supposed to do, go l ook for her, tel l her to com e down here and

straighten this out for me, sir?

The hearing officer responded: “ N o, we’ll do that for you. We’ll find the complainant

. ” (Emphasis

added.) McBride is then heard saying, “I sure hope so.” Further along into the preliminary hearing,

McBride once again asked the hearing officer whether “the complainant [was] supposed to be here,”

to which the hearing officer responded, “[n]ot at a preliminary hearing.”

The hearing officer ultimately concluded that there was probable cause to believe that

McBride sexually assaulted Illescas, so he recommended a hearing to determine whether McBride’s

parole should be revoked. The final revocation hearing was set for August 10, 1992.

B. McBride’s Subsequent Acquittal on the Sexual Assault Charge

In July 1992 (after the preliminary hearing, but before the final revocation hearing), the jury

acquit t ed McBride of the sexual assault charge. McBride asserts, and the State does not indicate

otherwise, that the jury deliberated for only five minutes before reaching a not guilty verdict. The

record also shows that Illescas’s credibility was a hotly contested issue.

C. The Parole Revocation Hearing3 Another police officer was scheduled to testify, but he never showed up.

4 Despite McBride’s acquittal, the revocation hear ing was held as scheduled. Attorney

Maribeth Murphy was appointed to represent McBride at the hearing. Although Illescas testified at

trial, she was not called by the State to testify at the parole revocation hearing. Instead, only three

witnesses appeared: Parole Officer Blevins, Dallas police detective Stanley McNear, and McBride. 3

Before any of the witnesses testified, Blevins told the participants that detective McNear had

not yet arrived. At that point, McBride interrupted the proceedings, stating, “How can they, uh, have

a witness

. . .,” but then was immediately told to “talk to your at t orney .” McBride is then heard

discussing the matter with his attorney

, complaining that lies were told at the trial and that “how can

they just c o me in here and, uh, say what they got to say. I don’t understand that.” McBride’s

attorney then respond ed t hat t he revocation hearing is different from the trial, there is a different

standard of evidence in parole revocation hearings a s opposed to jury tri al s, and that the State i s

entitled to call witnesses. In response to McBride’s question about witnesses called on his behalf,

his attorney responded (rather curtly) that McBride had never given her a list of wit nesses. Then

McBride’s attorney immediately said the following: “But you’re certainly here to testify, are you not?

To testify on your own behalf. To confront these witnesses at the hearing.”

Blevins was the first to testify. He stated that McBride told him in July 1992 that he did not

force Illescas to have sexual intercourse with him. Detective McNear then testified that Illescas told

him that McBride “dragged her to a parking booth, struck her several times, threatened to kill her and

forced her to have sexual intercourse.” Illescas also told McNear that McBride took $117 from her.

McNear testified that a hospital examination that same day showed that Illescas had been involved

in sexual intercourse, although McBride had used a condom. McNear also testified that Illescas had

bruises and scratches on her face. The medical report, however, was never offered into evidence, and

McNear testified that Illescas was in Colorado at the time of the hearing.

McBride’s counsel did not formal ly o bject to McNear’s testimony, but at the close of the

evidence, she argued that McBride’s parole should not be revoked because the only evidence offered4 The trial court stated the following:

3. The Court finds that the procedural due process exhibited by the documents provided

shows that Applicant was provided a proper hearing and due process.

4. The Court finds that Applicant’s complaints about his parole being revoked are without

merit and recommends that they be denied.

5. The Court finds that Applicant has not been denied any rights guaranteed by him by the

Constitution of the United States . . . .

5 against McBride was hearsay. McBride thereafter testified that Illescas consented to have sex with

him and that he did not threaten or strike her.

Solely on the basis of McNear’s testimony, the hearing officer conclude d that McBri de

engaged in unconsented sexual intercourse with Illescas and that he threatened to inflict bodily injury

on Illescas. Both the hearing officer and the field officer recommended revo cat io n o f McBride’s

parole. On September 10, 1992, McBride’s parole was revoked and he was to serve out the rest of

his life sentence, excluding the time during which he was out on parole.

PROCEDURAL HISTORY

In August 1994, McBride filed a habeas petition in state court. The trial court deni ed

McBride’s petition, concluding in three brief sentences that McBride’s Sixth Amendment rights were

not violated. 4 A judge of the Texas Criminal Court of Appeals denied habeas relief based on the trial

court’s findings.

McBride then filed a writ of habeas corpus in federal court on June 28, 1995, essentially

rearguing the claims he made in state court. The magistrate judge denied McBride’s petitio n,

concluding, among other things, that the parole revocation hearing did not violate McBride’s rights

under the Due Process Clause o f the Fourteenth Amendment. McBride filed objections to the

magistrate’s report on February 26, 1996, however, the district court adopted the magi strate’s

conclusions of fact and law and denied h abeas relief on February 27, 1996. McBride then filed a6

notice of appeal on March 14, 1996. On March 18, 1996, the district court denied a Certificate of

Probable Cause (CPC). On July 1, 1996, this court treated McBride’s applicatio n for CPC as an

application for a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1) and granted

a COA on the issue of

“whether McBride is entitled to relief on grounds that the state’s evidence at

his parole revocation hearing consisted of hearsay.

. . . F arrish v. Mississippi State Parole Bd.

, 836

F.2d 969 ([5th Cir.] 1988).”

DISCUSSION

I. S TANDARD OF R EVIEW

We granted a COA on the s o le quest io n of whether McBride’s Sixth Amendment right to

confront and cross-examine adverse witnesses was violated. As such, our review would ordinarily

be limit ed to that issue alone. S ee Lackey v. Johnson

, 116 F.3d 149, 151-52 (5th Cir. 1997).

However, the Supreme Court’s decision in Lindh v. Murphy

, 117 S. Ct. 2059 (1997) changes our

previous conclus io n t hat the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub.L. No. 104-132, 110 Stat. 1214 (1996) applies to this case. In Lindh , the Supreme Court held

that in noncapital cases, chapter 153 of the AEDPA does not apply retroactively. 117 S. Ct. at 2068.

Because § 2254 is implicated in this case and because § 2254 is part of chapter 153 of the AEDPA,

the Court’s holding in Lindh applies to this appeal.

Prior to Lindh

, our cases held that the AEDPA applied to all habeas petitions pending on the

effective date of the statute. Our polestar of guidance was Drinkard v. Johnson

, 97 F.3d 751 (5th

Cir. 1996), c ert. denied

, 117 S. Ct. 1114 (1997), in which we concluded that the AEDPA did n o t

raise the retroactivity concerns highlighted in Landgraf v. USI Film Products

, 511 U.S. 244, 114 S.

Ct. 1483, 128 L.Ed. 2d. 229 (1994). However, L indh ’s holding now guides our analysis of this issue.

See Blankenship v. Johnson

, 118 F.3d 312, 315 (5th Cir. 1997); Green v. Johnson

, 116 F.3d 1115,

1119-20 (5th Cir. 1997).

Accordingly, because McBride’s federal habeas petition was filed before the effective date of

the AEDPA, Lindh compels the conclusion that the AEDPA does not apply to McBride’s habeas5 Because of the holding in Lindh

, we sua sponte wit hdraw our prior opi ni on at 118 F.3d 432,

which held AEDPA to be applicable, and substitute the instant opinion.

6 Carchman v. Nash

, 473 U.S. 716, 725-26 (1985); Hamilton v. Lyons

, 74 F.3d 99, 105 (5th Cir.

1996); United States v. Grandlund , 71 F.3d 507, 509 (5th Cir. 1995), cert. denied , 116 S.Ct. 1031

(1996), and opinion clarified , 77 F.3d 811 (5th Cir. 1996).

7 petition, and we construe our previous grant of a COA as a grant of a CPC. 5 Unlike the more narrow

standard of review applicable to habeas petitions that come within the AEDPA, Lackey v. Johnson

,

116 F.3d at 151-52, a grant of a CPC on a particular issue nonetheless brings up all issues raised in

a petitioner’s federal habeas petition, id. at 152 (authority cited therein).

This different, broader scope of review, however, does not change the result in this case, for

we have reviewed all

o f McBride’s claims and conclude that only his Sixth Amendment claim has

merit. This case therefore presents a pure question of law, such that we must determine whether

McBride has made a “substantial showing of a denial of [a] federal right.” B arefoot v. Estelle

, 463

U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983).

II. T HE C ONFRONTATION C LAUSE AND P AROLE R EVOCATION H EARINGS

McBride claims that his right to procedural due process was violated because the State

revoked his parole in violation of his Sixth Amendment right to confront and cross-examine adverse

witnesses. Specifically, McBride asserts (and the State does not disagree) that the sole evidentiary

basis for revoking his parole consisted of hearsay evidence introduced by officer McNear, evidence

that consisted of Illescas’s statements to McNear about what happened on the night Illescas was

allegedly assaulted. Accordingly, argues McBride, he was denied the opportunity to cross-examine

and confront Illescas in violation of the Sixth Amendment. We agree.

In the seminal decision of Morrissey v. Brewer

, 408 U.S. 471 (1972), the Supreme Court held

that the constitutional right to procedural due process atta ches t o parole revocation hearings. In

reaching this conclusion, the Court recognized that “the concept of due process is flexible,” but that

its flexibilit

y “is a recognition that not all situations calling for procedural safeguards call for the same

kind of procedure.” I d. at 481. As such, although a formal trial-like procedure is not required, 6 the8

Court, after concluding that the Due Process Clause of the Fourteenth Amendment provided at least

informal procedural protecti ons to parolees, outlined the minimum constitutional requirements for

the two critical stages in the parole revocation process.

First, states conduct a preliminary hearing, in which the State determines “whether there is

probable cause or reasonable ground to believe that the arrested parolee has committed acts that

would constitute a v io lation of parole conditions.” 408 U.S. at 485. Because there may be a

substantial lag time between the parolee’s arrest and subsequent determination of wh ether parol e

should be revoked, the Court recognized the need for “some minimal inquiry” which would take place

“as promptly as convenient” to determine whether the parolee should be incarcerated pending a final

determination by the parole board. Accordingly, at the preliminary hearing stage, the Court

suggested at least three procedural protections:

[1] the parolee should be given notice that the hearing will take place and that its

purpose is to determine whether there is probable cause to believe he has committed

a parole violation. The notice should state what parole violations have been alleged.

[2] At the hearing the parolee may appear and speak in his own behalf; he may bring

letters, do cuments, or individuals who can give relevant information to the hearing

officer. [3] On request of the parolee

, persons who have given adverse information

on which parole revocation is to be based are to be made available for questioning in

his presence. However, if the hearing officer determines that the informant would be

subjected to risk of harm if his identity were disclosed, he need not be subjected to

confrontation and cross-examination.

Id. at 486-87 (emphasis added). We have emphasized the Supreme Court’s words because they

indicate that the Court surely was not suggesting that a parolee has the right, in eve ry preliminary

hearing, to conf

ro nt and cross-examine adverse witnesses. The right, as the Court subsequently

explained, is a “conditional one”—the condition being the parolee’s affirmative request to confront

an adverse witness. See Gagnon v. Scarpelli , 411 U.S. 778, 786 (1973).

Second, if the State determines that there is probable cause for believing the parolee violated

the terms of his parole, the State must afford the parolee (if he or she so chooses) a final revocation

hearing whose purpose goes beyond a determination of probable cause “to a final evaluation of any

contested relevant facts and consideration of whether the facts as determined warrant revocation.”

408 U.S. at 438. The Court provided six, essential protections required by the Due Process Clause:9

[1] written notice of the claimed violations of parole; [2] disclosure to the parolee of

evidence against him; [3] opportuni ty to be heard in person and to present witnesses

and documentary evidence; [4] the right t o co nfront and cross-examine adverse

witnesses (u nless the hearing officer specifically finds good cause for not allowing

confrontation) ; [5] a “neutral and detached” hearing body such as a traditional parole

board, members of which need not be judicial officers or lawyers; and [6] a written

statement by the fac t finders as to the evidence relied on and reasons for revoking

parole

. Id. at 489 (emphasis added). The Court stressed that the final revocation hearing should be a “narrow

inquiry,” yet sufficient ly flexible so that the parole board may “consider evidence including letters,

affidavits, and other mat erial t hat would not be admissible in an adversary criminal trial.” I d.

(emphasis added). The goal always is to ensure that “the finding of a parole violation will be based

on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the

parolee’s behavior .” Id. at 484 (emphasis added).

We have since added some flesh to the basic Morrissey framework. In F arrish v. Mississippi

State Parole Bd.

, 836 F.2d 969 (5th Cir. 1988), we declined to afford a commissioner of corrections

qualified immunit

y for permitting hearsay testimony in a parolee’s preliminary hearing. We began by

noting the inherent problems with hearsay testimony, which we said “presents a two-fold problem:

it prevents the parolee from confronting and cross-examining the declarant, and unreliable hearsay

undermines the accuracy of the fact-finding process.” I d. at 978. We then proceeded to apply these

principles to a “classic example of when the use of hearsay impermissibly viol ates the ri ght

[guaranteed in Morrissey ] to confront and cross-examine the declarant.” I d. In an analysis of facts

virtually identical to those presented in this case, we concluded as follows:

The only evidence that Farrish committed the alleged parole violation—the sale of

marijuana—was Mo hon’s [i.e., the hearsay declarant] testimony. Mohon’s selfserving statements contradicted Farrish’s version of the same events, and the

statements were inherently unreliable because if believed, they shift ed a potential

conviction for drug dealing from Mohon to Farrish. In short, the question of whether

Farrish sold marijuana required a credibility choice between th e two witnesses.

Ho wever, rather than appearing as Farrish requested, Mohon testified in a mo st damaging wa y—t hro ugh the police officers. The admission of Mohon’s hearsay

statements effectively depri ved Farrish of his right to confront the adverse witness

whose information provided the basis for parole revocation in a situation where his

interest in exercising that right was paramount.

Id. ; accord United States v. McCormick , 54 F.3d at 226 n.49 (dictum).7 Of course, this statement is not entirely accurate. In M orrissey

, the Supreme Court

unambiguously stated that if the parolee requests the presence of an adverse witness, that adverse

witness must be produced unless good cause excuses the witness’s absence. 408 U.S. at 487.

10 This case involves a denial of McBride’s right to confront and cross-examine an adverse

witness during the final revocation hearing. Although F arrish i nvo lved a preliminary revocation

hearing, we think the principles laid down i n that case apply with equal force here. The charge of

sexual assault turned on a credibility choice between McBride and Illescas, yet M cBride was not

provided an opportuni ty to confront Illescas and perhaps cast a shadow on her credibility. In

addition, McBride was acquitted of the sexual assault charge and the only evidence presented in the

parole hearing (and the evidence the parole board relied on in its decision to revoke parole) consisted

of the hearsay testimony presented by detective McNear about what Illescas told him happened on

the night in question. McBride faced a life sentence if his parole was revoked, and we conclude that

the evidence admitted at the revocation hearing violated McBride’s constitutional right to procedural

due process.

The State concedes that the only evidence offered against McBride at the revocation hearing

consisted of hearsay. The State’s only argument in this appeal is that because McBride failed to

object to the he arsay t est imony as it was being presented, he cannot now complain that his Sixth

Amendment rights were violated. We reject this contention for a number of reasons.

First, we do not believe, as the State asserts, that McBride failed to “adequately invoke his

right to confront and cross-examine the victim.” Our review o f the record reveals that on at least

three occasions, McBride clearly expressed an intent to have Illescas present during the revocation

proceedings: (1) at the preliminary hearing, McBride stated that he was concerned about being able

to locate Ille scas, t o which the hearing officer replied, “ w e’ll do that for you. We’ll find t he

complainant ”; McBride then responded, “I sure hope so”; (2) at another po int in the preliminary

hearing, M c Bride asked the hearing officer whether Illescas was “supposed to be here,” and the

hearing officer said, “[n]ot at a preliminary hearing”; 7 and (3) at the beginning of the parole hearing,

McBride complained about the proposed testimony of detective McNear because, in McBride’s eyes,8 Indeed, McBride asserts in his pro se brief on appeal t hat object ions were made by counsel

regarding the hea rsay evidence; however, he was never provided a copy of the hearing tapes to

prepare his appeal. Accordingly, McBride’s refutation of the State’s claim o f waiver is of limited

persuasive value.

11 that testimony would reflect the lies told at tr ial. In addit ion, at the close of the “evidence,”

McBride’s attorney argued that McBride’s parole should not be revoked because the only evidence

against McBride consisted of hearsay. And, as we have pointed out in footnote 2, the tape recording

of the final revocation hearing does not present us with a full accounting of what happened at that

hearing, so we cannot accept the State’s suggestion that neither McBride nor his attorney objected

to the introduction of hearsay testimony. 8

In light of all of these facts, we simply cannot conclude that McBride failed to invoke his right

to confront and cross-examine Illescas at the revocation hearing—especially because her testimony

(offered, as it was, through detective McNear) was the only evidence introduced against McBride.

McBride was told in no uncertain terms by the hearing officer that they would find Illescas for him,

and because that statement was made on the heels of McBride’s concern over Illescas’s appearance

at the revocation proceedings, it was reasonable for McBride to rely on the State’s assurances that

Illescas would appear before the parole board. We recognize that McBride’s invocation of his Sixth

Amendment rights was not as clear as it could have been. However, we do not believe that

preserving the Sixth Amendment right to confront and cross-examine adverse witnesse s requires

parolees to invoke their right in only one way. We have listened (several times) to the tape of the

revocation hearings, and we are convinced that McBride invoked his right (to no avail) to confront

and cross-examine Illescas.

Second, we reject the State’s contention that we should deny McBride habeas relief because

he could have done more (short of cross-examining Illescas) to cast doubt on Illescas’s version of the

events. The State cites to our decision in M cCormick

, 54 F.3d 214, for the proposition that “if crossexamination of [Illescas] was so critical to his defense he or counsel could have simply produced a

statement of facts of her testimony at the criminal trial where he had been found not guilty. Thus, an12

alternative was clearly available to McBri d e which he did not pursue.” The State is correct in its

position that McBride could have done all of these things, and in fact, McBride did introduce some

evidence from the criminal trial during the revocation hearing.

However, the State’s reading of McCormick goes too far because the same argument could

have been made in Farrish and every other case in which the State relies on the hearsay testimony of

a single witness to revoke an individual’s parole. Such a result, we thi nk, cuts the heart out of

Morrissey ’s guarantee of the right to confront and cr o ss-examine adverse witnesses at final

revocation hearings. Moreover, dictum in M cCormick supports our conclusion. Citing F arrish

,

here’s what we said in McCormick : “[w]e are troubled by the district court’s apparent admission of

Officer Velasquez’ testimony reg arding the CI. H ad that been the only evidence of McCormick’s

drug possession, we are confident that t he district court would have erred in relying on it as

competent evidence,

. . . unless, of course, the court made a specific finding that good cause excused

the CI from testifying .” 54 F.3d at 226 n.49 (emphasis added). M cCormick ’s reaffirmance of the

principles underlying Farrish compels our conclusion today.

Finally, in it s letter brief to this court, the State suggests that Illescas could not attend the

hearing because she was in Denver, Col orado. To the extent the State suggests that good cause

excused Illescas’s absence from the hearings, we reject the argument because there was no finding

of good cause or evidence of why Illescas should not appear sufficient to overco me or outweigh

McBride’s right to confrontation or cross-examination.

CONCLUSION

Finding that the State violated McBride’s Sixth Amendmen t right to confront and crossexamine Illescas during his parole revocation he aring, we REVERSE the district court’s denial of

habeas relief, and REMAND this case to the district court with directions to send the case back to

the parole board so that McBride may receive a parole revocation hearing consistent with the Due

Process Clause of the Fourteenth Amendment.

REVERSED and REMANDED.13