1 United States Court of Appeals,

Fifth Circuit.

No. 94-20907.

Sandy E. SHERMAN, Petitioner-Appellant,

v.

Wayne SCOTT, Director, Texas Department of Criminal Justice,

Institutional Division, Respondent-Appellee.

Aug. 30, 1995.

Appeal from the United States District Co urt for the Southern

District of Texas.

Before KING, HIGGINBOTHAM and PARKER, Circuit Judges.

KING, Circuit Judge:

Sandy Sherman was convicted in Texas state court for delivery

of a controlled substance and was sentenced to sixty years of

imprisonment. After the Texas Court of Appeals affirmed his

conviction, Sherman did not seek review in the Texas Court of

Criminal Appeals. Instead, Sherman filed a state application for

habeas relief which was denied by the Texas Court of Criminal

Ap peals. Sherman then sought habeas relief in federal district

court, but the district court dismissed his petition with

prejudice. Sherman filed a notice of appeal and sought a

certificate of probable cause and appointment of counsel. The

district court denied Sherman's request for counsel and granted a

CPC on only one i ssue. Sherman, proceeding pro se, now appeals,

arguing, inter alia, that this court has jurisdiction over all of

his claims because a CPC may not be limited to a single issue.

While we agree that the issuance of a CPC on a ny issue gives us2

jurisdiction over the appeal from the entire judgment ent ered by

the district court, we nevertheless find that Sherman's claims are

without merit, and we affirm the district court's dismissal of his

petition.

I. BACKGROUND

In his federal habeas petition, Sherman argued that: (1)

insufficient evidence to sustain his conviction was presented; (2)

testimony from a chemist whom he was not allowed to cross-examine

was admitted in violation of the confrontation clause; (3) a

photocopy of money used in the drug transaction was improperly

admitted into evidence; and (4) effective assistance of counsel at

trial and on appeal was denied. The respondent moved for summary

judgment. The district court, after carefully and thoroughly

examining Sherman's claims, found that Sher man "ha[d] failed to

demonstrate that Texas is holding him in custody in violation of

the Constitution or a law or treaty of the United States" and

granted the respondent's motion for summary judgment. Accordingly,

the district court entered a final judgment, dismissing Sherman's

petition with prejudice.

Sherman then filed a notice of appeal along with an

application for a CPC. The district court determined that only

Sherman's claim "concern ing the admission of a laboratory tests

report without the testimony of the police chemists who performed

the tests" merited further review. Thus, the district court

granted Sherman's motion "to the extent that it seeks a certificate

of probable cause to appeal [the district] court's conclusion that3

Sherman's conviction was obtained at the expense of his right to

confront the chemists who performed the tests identifying a

controlled substance."

Sherman appeals, reasserting the constitutional claims he

raised in the district court. Additionally, Sherman contends that

his right to appeal was impinged because the district court limited

its grant of the CPC to one issue.

II. DISCUSSION

A. Scope of the CPC

The law governing habeas procedure provides that:

An appeal may not be taken to the court of appeals from the

final order in a habeas corpus proceeding where the detention

arises out of the process issued by a State court, unless the

justice or judge who rendered the order or a circuit justice

or judge issues a certificate of probable cause.

28 U.S.C. § 2 253; s ee also Drew v. Scott, 28 F.3d 460, 462 (5th

Cir.) (noting that "[w]e have no jurisdiction to address the merits

of [an] appeal from the district court's denial of habeas relief

unless we grant a CPC"), cert. denied,

--- U.S. ----, 115 S.Ct. 5,

129 L.Ed.2d 906 (1994). Additionally, the Supreme Court has noted

that a CPC "requires [a] petitioner to make a substantial showing

of the 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) (internal

quota tion omitted) (alteration in original); a ccord Jacobs v.

Scott, 31 F.3d 1319, 1323 (5th Cir.1994), cert. denied,

--- U.S.

--

--, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995). That is, a petitioner

"must demonstrate that th e issues are debatable among jurists of

reason; that a court c ould resol ve the issues [in a different1 The Second Circuit alone has reached a different conclusion

and allows a CPC to limit the issues to be heard on appeal. That

court found that the "absence of explicit authority in § 2253

[was not] dispositive." Vicaretti v. Henderson, 645 F.2d 100,

101 (2d Cir.1980), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70

L.Ed.2d 171 (1981). Accordingly, the court allowed a limitation

of CPCs, but also allowed a panel "to broaden the scope of the

appeal if persuaded that such further consideration would be just

under the circumstances." id. at 102; accord Barber v. Scully,

4 manner]; or that the questions are adequate to deserve

encouragement to proceed further." B arefoot, 463 U.S. at 893 n. 4,

103 S.Ct. at 3 394 n. 4 (citations omitted) (internal quotations

omitted); accord Jacobs, 31 F.3d at 1323.

In the instant case, the district court granted a CPC on only

one issue, apparently in an attempt to preclude Sherm an from

raising his other claims in this appeal. While the effort of the

district court to highlight the only issue that it c onsidered

debatable is laudable, the partial grant of CPC was improper to the

extent that it was designed to limit the jurisdiction of this court

to that issue. The language of § 2253 gives courts of appeal

jurisdiction over "the final order in a habeas corpus proceeding"

after a CPC is granted. 28 U.S.C. § 2253 (emphasis added). Yet,

as the majority of circuit courts addressing this issue have noted,

"[n]othing in the language or legislative history of 28 U.S.C. §

2253 suggests that Congress intended this provision to permit a

judge to limit the issues on appeal." V an Pilon v. Reed, 799 F.2d

1332, 1335 (9th Cir.1986); a ccord Smith v. Chrans, 836 F.2d 1076,

1 079 (7th Cir.1988); H ouston v. Mintzes, 722 F.2d 290, 293 (6th

Cir.1983); United States ex rel. Hickey v. Jeffes, 571 F.2d 762,

765-66 (3d Cir.1978). 1731 F.2d 1073, 1075 (2d Cir.1984).

5 A construction of § 2253 that permitted a CPC that was limited

to certain issues to limit the jurisdiction of the court of appeals

to those issues is "[in]consistent with the general rule that

appeals lie from final judgments or orders, not from determinations

of legal issues." V an Pilon, 799 F.2d at 1335; a ccord Smith, 836

F.2d at 1079; H ickey, 571 F.2d at 765; s ee also Houston, 722 F.2d

at 293 (rejecting limited CPCs and noting that petitioners "appeal[

] not from issues decided by the district court, but from the final

order[s] of the district court").

A dditionally, "the purpose of requiring the petitio ner to

obtain a certificate of probable cause is to sc reen frivolous

appeals." S mith, 836 F.2d at 1079. The instant case demonstrates

that "[t]o the extent that limited certificates of probable cause

represent an effort to eliminate frivolous issues from

consideration on appeal, they have little practical effect." Van

Pilon, 79 9 F.2d at 1336; a ccord Smith, 836 F.2d at 1079-80

(discussing Van Pilon ). As the V an Pilon and Smi th courts

recognized:

Because we construe a habeas petitioner's notice of appeal as

an applicat ion for a certificate of probable cause, those

petitioners who are issued limited certificates will

nevertheless obtain further consideration of the entire

petition b y this court. It appears likely that petitioners

will also continue to argue the merits of excluded claims in

the appeal for which a certificate was granted in the hopes of

having those claims considered.

Smith, 836 F.2d at 1079-80; accord Van Pilon, 799 F.2d at 1336.

Finally, these courts' constructi on of the rule is6

jurisprudentially sound, because allowing limited CPCs would allow

"a single district judge, a single circuit judge, or even a panel

of the Court of Appeals to prescribe the issues which another panel

may consider in support of, or in opposition to, a judgment."

Hickey, 571 F.2d at 766; a ccord Houston, 722 F.2d at 293. Such a

rule might lead to a situation where:

the application of a settled principle of constitutional law

wou ld justify the reversal of a denial of habeas corpus

relief, but the pro se applicant in applying for a certificate

of probable cause did not articulate the settled ground with

sufficient clarity. If a limited certificate could preclude

consideration of the settled ground, it could force a panel of

necessity to deci de a novel or unsettled issue of

constitutional law unnecessary.

Hickey, 571 F.2d at 766; s ee also Houston, 722 F.2d at 293 (noting

this potential problem).

Accordingly, as the Third, Sixth, Seventh, and Ninth Circuits

have held, a grant of CPC gives this court jurisdiction over the

entire judgment entered by the district court disposing of all the

claims asserted by the petitioner in the district court. We are,

however, benefitted when district courts identify, as the district

court has done here, those issues (if any) that they consider

"debatable among jurists of reason."

B. Confrontation Clause Issues

Sherman contend s that his Confrontation Clause rights were

violated because a drug analysi s report was admitted through the

testimony of a laboratory supervisor instead of thr ough the

testimony of the chemists who prepared the report. We disagree.

The Conf rontation Clause provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right ... to be7

confronted with the witnesses against him." U.S. Const., amend.

VI. The Supreme Court has noted that:

[T]he Clause envisions a personal examination and

cross-examination of the witness in which the accused has an

opportunity, not only of testing the recollection and sifting

the conscience of the witness, but of compelling him to stand

face to face with the jury in order that they may look at him

and judge by hi s demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of belief.

Ohio v. Roberts, 448 U.S. 56, 63-64, 100 S.Ct. 2531, 2537-38, 65

L.Ed.2d 597 ( 1980) (internal quotation omitted). The Court,

however, has also noted that "competing interests, if closely

examined, may warrant dispensing with confrontation at trial." I d.

(internal quotation omitted) (citation omitted). Accordingly, the

Court repeatedly has found that "[w]hile a literal interpretation

of the Confrontation Clause could bar the use of any out-of-court

statements when the declarant is unavailabl e ... that view [is]

unintended and too extreme." Idaho v. Wright, 497 U.S. 805, 814,

110 S.Ct. 3139, 3145, 111 L.Ed.2d 638 (1990) (internal quotation

o mitted). Thus, there can be little doubt that "the

[Confrontation] Clause does not necessarily prohibit the admission

of hearsay statements against a criminal defendant, even though the

admission of such statements might be thought to violate the

literal terms of the Clause." Id. at 813, 110 S.Ct. at 3145.

In interpreting the relationship between the Confrontation

Clause and the hearsay rules, the Supreme Court has instructed

that:

when a hearsay declarant is not present for cross-examination

at trial, the Confrontation Clause normally requires a showing

that he is unavailable. Even then, his statement is

admissible only if it bears adequate "indicia of reliability."8

Reliability can be inferred without more in a case where the

evidence falls within a firmly rooted hearsay exception. In

other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Roberts, 448 U.S. at 66, 110 S.Ct. at 2539. In R oberts, the Court

noted that "[a] demonstration of unavailability ... is not always

required," id. at 65 n. 7, 110 S.Ct. at 2538 n. 7, and the Court

later clarified that " Roberts stands for the proposition that

una vailability analysis is a necessary part of the Confrontation

Clause inquiry only when the challenged out-of-court statements

were made in the course of a prior judicial proceeding." W hite v.

Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 741 , 116 L.Ed.2d 848

(1992).

Thus, when dete rmining whether an out-of-court statement

admitted in a criminal trial violates the Confrontation Clause, we

must examine whether the evidence contains particularized

guarantees of trustworthiness. As the Supreme Court has stated,

these "particularized guarantees of trustworthiness required for

admission under the Confrontation Clause must

... be drawn from the

totality of circumstances that surround the making of the statement

and that render the declarant particularly worthy of belief."

Wright, 497 U.S. at 820, 110 S.Ct. at 3149 (internal quotation

omitted). Further, R oberts and other cases make clear that

"statements admitted under a firmly rooted hearsay exception are so

trustworthy that adversarial te sting would add little to their

reliability." I d. at 821, 110 S.Ct. at 3149 (internal quotation

omitted). As to these other statements, the Supreme Court teaches

that "evidence possessing particularized guarantees of2 The Supreme Court also made clear that the indicia of

reliability cannot come from corroboration with other evidence at

trial, noting that "[t]o be admissible under the Confrontation

Clause, hearsay evidence used to convict a defendant must possess

indicia of reliability by virtue of its inherent trustworthiness,

not by reference to other evidence at trial." Wright, 497 U.S.

at 822, 110 S.Ct. at 3150.

3 The Federal Rules of Evidence provide that certain evidence

is "not excluded by the hearsay rule even though the declarant is

unavailable as a witness." Fed.R.Evid. 803. Included among such

9 trustworthiness must be at least as reliable as evidence admitted

under a firmly rooted hearsay exception

... [and] must similarly be

so trustworthy that adversarial testing would add little to its

reliability." Finally, "[i]f the declarant's truthfulness is so

clear from the surrounding circumstances that the test of

cross-examination would be of marginal utilit y, then the hearsay

rule [and the Confrontation Clause] do[ ] not bar admission of the

statement at trial." Id. at 820, 110 S.Ct. at 3149. 2

In applying this rule to laboratory repor ts, other circuit

courts have determined that such reports contain the particularized

guarantees of trustworthiness to keep th em from violating a

defendant's rights under the Confrontation Clause. See Minner v.

Kerby, 30 F.3d 1311 (10th Cir.1994); United States v. Baker, 855

F.2d 1353, 1360 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109

S.Ct. 2072, 104 L.Ed.2d 636 (1989); R eardon v. Manson, 806 F.2d 39

(2d.Cir.1986), cert. denied, 481 U.S. 1020, 107 S.Ct. 1903, 95

L.Ed.2d 509 (1987). In B aker, on a d irect appeal, the Eighth

Circuit determined that "[w]hen made on a routine basis, laboratory

analyses of controlled substances are admissible as business

r ecords under Federal Rule of Evidence 803(6)." 3 B aker, 855 F. 2 devidence is:

A memorandum, report, record, or data compilation, in

any form, of acts, events, conditions, opinions, or

diagnoses, made at or near the time by ... a person

with knowledge, if kept in the course of a regularly

conducted business activity, and if it was the regular

practice of that business activity to make the

memorandum, report, record, or data compilation, all as

shown by the testimony of the custodian or other

qualified witness, unless the source of the information

or the method or circumstances of preparation indicate

lack of trustworthiness.

Fed.R.Evid. 803(6).

10 at 1359. Because the reports were admitted as a business record,

the Eighth Circuit found that "the district court acted under a

firmly rooted exception" to the hearsay rule and therefore did not

violate the Confrontation Clause. Id. at 1360.

In Minner, a habeas petitioner claimed that the admission of

a police chemist's notes through the testimony of the chemist's

supervisor violated the Confrontatio n Clause. The M inner court

rejected this claim, finding that t he notes had "sufficient

particularized indicia of reliability" to satisfy the Clause. The

court found the notes reliable because they "concern[ed]

mechanically objective tests and were taken contemporaneously with

the p erformance of the tests." M inner, 30 F.3d at 1314-15. The

court also found the police chemist's notes trustworthy because the

supervisor checked the computations of the chemist, and the results

were verified by tests conducted by a second chemist. I d. at 1314-

15. Additionally, the court noted that the supervisor "testified

as to standard lab procedures and testified that [the che mist's]

notes indicat[ed] that he followed those procedures in testing the4 Rule 803's exceptions to the hearsay rule state that

certain public records are not excluded even though the declarant

is unavailable. Specifically the Rule allows admission of:

"Records, reports, statements, or data compilations, in

any form, of public offices or agencies, setting forth

(A) the activity of the office or agency, or (B)

matters observed pursuant to a duty imposed by law as

to which matters there was a duty to report, excluding,

however, in criminal cases matters observed by police

officers and other law enforcement personnel ...."

11 substance at issue." I d. Consequently, the M inner court concluded

that "[t]he admission of [the chemist's] laboratory notes into

evidence was proper under the Confrontation Clause." Id.

Finally, in Reardon, the Second Circuit found that a chemist's

report admitted through the testimony of a supervisor did not

violate the Confrontation Clause. R eardon, 806 F.2d at 41. Noting

that the chemists who prepared the r eport analyzed thousands of

compounds each year and were not likely to independently remember

any particular test, the court concluded that " there would have

been little potential utility in requiring the State to produce the

... chemists for cross-examination." I d. Accordingly, the R eardon

court found that the evidence possessed sufficient indicia of

reliability and did not offend the Confrontation Clause.

This court has not had occasion to address whether a

laboratory report admitted through testimony by someone other than

the individual who prepared that report violates the Confrontation

Clause. Although in the present case the lab report was admitted

as a business record, without objection, we need not address

whether such reports qualify for a recognized exception to the

hearsay rule 4 because we find that the report in question had t h eFed.R.Evid. 803(8) (emphasis added). Additionally the Rule

provides that:

A statement not specifically covered by any of the ...

exceptions but having equivalent guarantees of

trustworthiness, [are admissible even if the declarant

is unavailable], if the court determines that (A) the

statement is offered as evidence of a material fact;

(B) the statement is more probative on the point for

which it is offered than any other evidence which the

proponent can procure through reasonable efforts; and

(C) the general purposes of the[ ] rules and the

interests of justice will be served by admission of the

statement into evidence.

Fed.R.Evid. 803(24).

12 "particularized guarantees of trustworthiness" required by the

Confrontation Clause.

Specifically, the laboratory analysis in the instant case was

admitted through the testimony of the supervisor of the two

chemists who prepared the report. The supervisor testified about

his own qualifications and experience as well as the qualifications

and experience of the two chemists who performed the tests.

Additionally, the supervisor recounted the standard analytical

procedures used to determine the composition of unknown substances.

Finally, the supervisor testified that the report indicated that

the chemists reached their results after performing these tests and

following standard testing procedures. There seems little question

that these routine procedures, performed and recorded also under

standard laboratory procedures, were trustworthy. See Minner, 30

F.3d at 1314-15; R eardon, 806 F.2d at 41; c f. U nited States v.

McCormick, 54 F.3d 214, 223-224 (5th Cir.1995) (noting, in the

context of a parole revocati on hearing, that laboratory report,5 The Second Circuit's decision in United States v. Oates,

560 F.2d 45 (2d Cir.1977), concerned the admissibility of a

laboratory report under the Federal Rules of Evidence, an issue

that we do not reach in this case. Our conclusion is based on

Confrontation Clause analysis set out by the Supreme Court; that

is, the particularized guarantees of trustworthiness found in the

report and the fact that cross-examination of the chemists would

have been of little utility. See Reardon, 806 F.2d at 42 (" Oates

was not decided on constitutional grounds but on an

interpretation of the Federal Rules of Evidence....").

13 although "not so inherently reliable to be automatically admissible

in any revocation hearing," was shown by the chain of custody,

step-by-step testing processes, and quality control procedures to

be reliable).

Furthermore, like the majorit y of other circuits that have

addressed this issue, we fail to see what benefit Sherman would

have gained by cross-examining th e chemists who prepared the

report. As several courts have echoed, "production of the chemist

who performed the test "rarely leads to any admissions helpful to

the party.' " R eardon, 806 F.2d at 42 (quoting United States v.

Bell, 785 F.2d 640, 643 (8th Cir.1986)); a ccord Minner, 30 F.3d at

1315; cf. McCormick, 54 F.3d at 224 (in parole revocation case,

commenting that "[w]e cannot fathom what additional, enlightening

information the district court could have gleaned had [the parolee]

been permitted to cross-examine the laboratory technicians").

Because the testimony of the supervisor demonstrated that the

report had particularized guarantees of trustworthiness and because

cr oss-examination of the chemists who prepared the report would

have been of little use to Sherman, we find that the admission of

the report did not violate the Confrontation Clause. 5 S ee Wright,6 We are further persuaded that habeas relief is not proper

on this issue because even if the laboratory report lacked the

"particularized guarantees if trustworthiness" required by the

Constitution, any error stemming from admission of the report was

harmless. We have stated that "[t]he erroneous admission of

prejudicial testimony justifies habeas corpus relief only when it

is material in the sense of [being a] crucial, critical, highly

significant factor." Andrade v. McCotter, 805 F.2d 1190, 1193

(5th Cir.1986) (internal quotations omitted) (second alteration

in original); see also Delaware v. Van Arsdall, 475 U.S. 673,

679-84, 106 S.Ct. 1431, 1435-38, 89 L.Ed.2d 674 (1986) (noting

that "Confrontation Clause errors [are] subject to ... harmless

error analysis"). Additionally, the Supreme Court has stated

that:

Whether such an [evidentiary] error is harmless in a

particular case depends upon a host of factors, all

readily accessible to reviewing courts. These factors

include the importance of the witness'[s] testimony in

the prosecution's case, whether the testimony was

cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the

witness on material points, the extent of

cross-examination otherwise permitted, and, of course,

the overall strength of the prosecution's case.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438; accord

Cupit v. Whitley, 28 F.3d 532, 536-47 (5th Cir.1994), cert.

denied, --- U.S. ----, 115 S.Ct. 1128, 130 L.Ed.2d 1091

(1995); Johnson v. Blackburn, 778 F.2d 1044, 1051 (5th

Cir.1985).

In the instant case, the laboratory report was not the

only evidence that the material in question was cocaine. An

undercover police officer testified that he purchased a

substance that all parties to the transaction treated as

cocaine. Additionally, that officer testified that a field

test of the substance also indicated that it contained

cocaine. Accordingly, because the evidence of the

laboratory report was cumulative, it was not material in the

sense of being a crucial, critical, highly significant

14 497 U.S. at 820, 110 S.Ct. at 3149 ("If the declarant's

truthfulness is so clear fromthe surrounding circumstances that

t he test of cross-examination would be of marginal utility, then

the hearsay rule [and the Confrontation Clause] do[ ] not bar

admission of the statement at trial."). 6factor; thus, even if the admission of the laboratory

report had violated the Confrontation Clause, which it did

not, it would not warrant habeas relief.

15 C. Other Claims

Sherman makes several additional claims, all of which we have

considered and find to be without merit.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district's denial of

Sherman's application for habeas relief.