REVISED, May 15, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-20023

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SIDNEY ANDRE MCDONALD,

Plaintiff-Appellant,

VERSUS

GARY L. JOHNSON,

Director, Texas Department of Criminal Justice,

Institutional Division,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

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May 11, 1998

Before GARWOOD, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Sidney McDonald appeals the denial of an evidentiary hearing

a nd dismissal of his petition for writ of habeas corp us. We

affirm.

I.

McDonald pleaded guilty in state court to delivery of cocaine.

P ursuant to a plea bargain, the state recommended fifteen yea rs'

imprisonment. The court accepted McDonald's guilty plea and1 See United States v. Gipson , 985 F.2d 212, 215 (5th Cir. 1993) (“If a

petitioner can prove that the ineffective assistance of counsel denied him the

right to appeal, then he need not further establish SS as a prerequisite to habeas

relief SS that he had some chance of success on appeal.”). As discussed below,

under Texas law, McDonald had only a conditional right to appeal; he needed the

trial court's permission to do so. Because the state does not contest that

McDonald's lawyer was required to inform him of this right, we assume arguendo

that McDonald has stated a claim for ineffective assistance of counsel.

2 sentenced him to the suggested term. No direct appeal was taken.

McDonald filed a habeas petition in state court, challenging

his conviction and sentence. He alleged, inter alia , ineffective

assistance of counsel, claiming that his trial counsel had failed

to inform him of his righ t to appeal. 1 He was denied an

evidentiary hearing. The Texas Court of Criminal Appeals then

denied his application without a written order.

McDonald file d a second habeas petition in state court,

raising largely the same arguments. The state court denied his

claim as procedurally barred. It determined that “there are no

controverted, previously unresolved facts material to the legality

of the Applicant's con finement which require an evidentiary

hearing.” Accordingly, the court did not render specific factual

findings. The Texas Court of Criminal Appeals again denied

McDonald's application without a written order.

McDonald proceeded to fe deral court, seeking relief under

28 U.S.C. § 2254(d). The state moved for summary judgment,

introducing an affidavit from McDonald's court-appointed trial

counsel. In the affidavit, counsel stated that he had fully

informed McDonald that McDonald could not appeal without the trial

court's p ermission. The state attached court records suggesting

that the trial court also had warned McDonald of his conditional2 Under T EX

. C ODE C RIM

. P. Art. 26.13(a)(3), before accepting a guilty plea,

the trial court must inform the defendant of

the fact that if the punishment assessed does not exceed the

p unishment recommended by the prosecutor and agreed t o by the

defendant and his attorney, the trial court must give its permission

to the defendant before he may prosecute an appeal on any matter in

the case except for those matters raised by writ ten motions filed

prior to trial . . . .

McDonald claims that the trial court also failed to inform him of his right to

appeal.

3 right to appeal, although there is no transcript of the sentencing

proceedings. 2

McDonald countered with an affidavit claiming that neither the

trial court nor his lawyer had ex plained to him his right to

appeal. He did not proffer any other evidence. The district court

denied his request for an evidentiary hearing and dismissed his

petition as frivolous pursuant to 28 U.S.C. § 1915(d), adding that

portions of h is affidavit “border[ed] on perjury.” McDonald

appealed, and we granted a certificate of appealability on the

issue of whether counsel had advised him of his right to appeal.

II.

Deni als of an evidentiary hearing are reviewed for abuse of

discretion. United States v. Cervantes , 132 F.3d 1106, 1110 (5th

Cir. 1998). We review dismissals pursuant to § 1915(d) under the

same standard. H amilton v. Lyons

, 74 F.3d 99, 102 (5th Cir. 1996).

A.

Because McDonald filed his federal habeas petition on May 7,

1996, his claims are governed by the Antiterrorism and Effective4

Death Penalty Act (“AED PA”). Accordingly, his request for an

evidentiary hearing must be evaluated under 28 U.S.C. § 2254(e)(2),

which provides, in relevant part:

If the applicant has failed to develop the factual basis

of a claim in State court proceedings, the court shall

not hold an evidentiary hearing on the claim unless the

applicant shows that SS

(A) the claim relies on SS

(i) a new rule of const itutional law, made

retroactive to cases on collateral review by

the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could n ot have

been previously disco vered through the

exercise of due diligence . . . .

Becau se McDonald does not allege that his ineffective assistance

claim relies on a new rule of con stitutional law or a hidden

factual predi cate, he cannot secure an evidentiary hearing if he

failed to develop a factual basis for his claim in the state court

proceedings.

It is undisputed that no factual basis was developed in the

state courts; they found McDonald's claim procedurally barred and

thus did not hold an evidentiary hearing. The more difficult

q uestion is whether, for purposes of § 2254(e)(2), McDo nald

“failed” to develop the factual basis.

Two circuits have understood the phrase “failed to develop” in

§ 2254(e)(2) as requiring some sort of omission by the petitioner;

in other words, he cannot be deemed to have failed to develop a

factual basis for his claim if the basis was left undeveloped

through no fault of his own. In Love v. Morton , 112 F.3d 131 (3d5

Cir. 1997), the court held that the petitioner could not be said to

have failed to develop the factual record when the trial judge's

abrupt declaration of a mistrial prevented him from doing so. The

court concluded that “factors other than the defend ant's action

prevented a factual record from being developed,” and therefore the

petitioner was entitled to an evidentiary hearing. Id . at 136.

Similarly, in Burris v. Parke , 116 F.3d 256, 258 (7th Cir.),

cert. denied

, 118 S. Ct. 462 (1997), the court remarked:

“'F ailure' implies omission SS a decision not to introduce evidence

when there was an opportunity, or a decision not to seek an

opportunity.” It concluded that “the word 'fail' cannot bear a

strict-liability reading under which a federal court would

disregard the reason for the shortcomings of the record.” Id . at

259.

Whether a petitioner who, without any default on his part, was

procedurally barred from developing a factual basis for his claim

can be said t o have “failed” to do so is a question of first

impression in this circuit. We join the Third and Seventh Circuits

in concluding that, for purposes of 28 U.S.C. § 2254(e)(2), a

petitioner cannot be said to have “failed to develop” a factual

basis for his claim unless the undeveloped record is a result of

his own decision or omission. Accordingly, McDonald's claim is not

precluded under 28 U.S.C. § 2254(e)(2). If it were, “a state could

insulate its decisions from collateral attack in federal court by

refusing to grant evidentiary hearings in its own courts.” B urris

,

116 F.3d at 259.6 B.

This conclusion does not end the analysis, however, for even

if McDonald's claim is not precluded by § 2254(e)(2), that does not

mean he is entitled to an evidentiary hearing SS only that he may be.

Consisten t with AEDPA's goal of streamlining the habeas process,

§ 2254(e)(2) specifies the situations where e videntiary hearings

are allowed

, not where they are r equired

. Thus, if a petitioner

seeking a hearing clears this initial hurdle, he must still

persuad e the district court. This subsequent determination is

committed to the district court's discretion pursuant to Rule 8 of

the Rules Governing § 2254 Cases. In determining whether an

evide ntiary hearing is proper, the district court may expand the

record and consider affidavits, exhibits, or other materials that

cast light on the merits of the petition.

The district court did not hold an evidentiary hearing, but

considered McDonald's affidavit along with an affidavit from his

trial counsel, who stated that he had informed McDonald of his

conditional right to appeal. The court also considered the records

from McDonald's sentencing hearing, which indicated that the state

court had fulfilled its legal duty to inform McDonald of this right

before accepting his guilty plea.

We agree with the district court that an evidentiary hearing

was unnecessary u nder these circumstances. Given that the court

had before it affidavits from the two central parties SS McDonald and

his trial counsel SS it is uncertain what add itional evidence could

h ave been introduced. “[A] petitioner need not receive an3 See also Young

, 938 F.2d at 560, quoting Blackledge v. Allison

, 431 U.S.

63, 74 (1977): “A petitioner is not entitled to an evidentiary hearing . . . if

his claims are merely 'conclusory al l egations unsupported by specifics' or 'contentions that in the face of the record are wholly incredible.'”

7 evidentiary hearing if it would not develop material facts relevant

to the constitutionality of his convicti on.” Y oung v. Herring

,

938 F.2d 543, 560 n.12 (5th Cir. 1991) (on remand). 3 The district

court had sufficient facts before it to make an informed decision

on the merits of McDonald's claim and, accordingly, did not abuse

its discretion in refusing to hold an evidentiary hearing.

III.

The district court dismissed McDonald's petition under

28 U.S.C . § 1915(d). That section, now codified at 28 U.S.C.

§ 1915(e)(2)(B), permits the district court to dismiss the claim of

a petitioner proceeding in forma pauperis if the court determines

that the action is frivolous. A complaint is frivolous if it lacks

an arguable basis in law or fact. McCormick v. Stalder , 105 F.3d

1059, 1061 (5th Cir. 1997).

The court did not abuse its discretion in finding that

McDonald's claim lacked an arguable basis in fact. The court

considered the affidavits of both sides as well as documents from

the sentencing proceeding, and noted the internal contradictions in

McDonald's affidavit SS raising th e possibility of perjury SS and

observed the absence of supporting evidence other than the

petitioner's own self-serving allegations.

Specifically, the court considered the affidavit of McDonald's8

trial counsel stating that he had fully advised his client of his

limited right to appeal under Texas law. The court also considered

McDonald's own signed statement that he had fully discussed the

case with his attorney. Finally, the court considered the signed

declaration of the trial judge stating that, before accepting

McDonald's guilty plea, he too had advised McDonald of his right to

appeal. The court then concluded that McDonald had failed to

introduce evidence establishing an arguable factual basis for his

allegation that both his lawyer and the trial judge had failed to

inform him of his rights.

Given the district court's careful con sideration of the

pleadings and the expanded record, we cannot say that it abused its

discre tion in dismissing McDonald's claim under § 1915(d). The

judgment, accordingly, is AFFIRMED.