UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-5192

RICKY DON BLACKMON,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

 (May 26, 1994) 

Before POLITZ, Chief Judge, JOLLY and EMILIO M. GARZA, Circuit

Judges.

POLITZ, Chief Judge:

Ricky Don Blackmon appeals an adverse summary judgment

rejecting his 28 U.S.C. § 2254 petition for habeas corpus relief.

For the reasons assigned we vacate the judgment and remand for

further proceedings consistent herewith.

Background

In March 1987 Ricky Don Blackmon and his girlfriend Donna Mae

Rogers were unemployed, impoverished, and living outside Dallas,
 

1Blackmon's statement and confession were admitted at trial.

2

Texas. Rogers told Blackmon she knew people in Joaquin, Texas who

would be good targets for a robbery. She drove Blackmon there,

telling him she would lure an old acquaintance, Carl J. Rinkle, to

the Rinkle house where she would knock him unconscious and steal

his cash. Blackmon was to wait outside the house. Rogers entered

the residence but returned to tell Blackmon she could not knock

Rinkle out. After Rogers went back inside Blackmon looked through

a bedroom window and saw a nearly naked Rogers with a completely

naked Rinkle on the bed. Blackmon contends that when he saw this

he became so enraged that it caused him to break into the house and

murder Rinkle. Blackmon took a large sword, which he had made from

a sawmill blade, out of the trunk of his car and knocked on the

front door. Rinkle answered the door unarmed. Blackmon killed

Rinkle, brutally slashing his body. Blackmon and Rogers then

looted the residence of various items, including approximately $700

in cash.

Several weeks later Blackmon was arrested just before

midnight. He gave a taped statement and signed a written

confession at 5:30 a.m. the next day.1 Blackmon was charged in a

two-count indictment with the capital murder of Rinkle during the

course of committing and attempting to commit the offenses of

burglary of a habitation and robbery. Rogers gave a taped

statement and signed confession. Copies of both were provided to

Blackmon prior to his trial. The state did not call Rogers as a

witness until the sentencing phase.
3

The trial began on October 19, 1987. On October 23 the state

notified Blackmon for the first time of its intent to use, during

the sentencing phase, evidence of an uncharged Oklahoma double

homicide. The jury returned a verdict of guilty. During the

sentencing phase the state presented extensive evidence of

uncharged crimes allegedly committed by Blackmon in Oklahoma.

Blackmon had no prior criminal convictions. The state's witnesses

included Terry Sittig, who had pleaded guilty to the Oklahoma

murders, Raymond Smith and Gary Keith Hall.

Sittig was brought to Shelby County from an Oklahoma prison

just prior to testifying. Sittig had pleaded guilty to the

Oklahoma murders; he was to testify that Blackmon assisted in the

crime. Sittig asked to speak with Blackmon. Blackmon's counsel

simultaneously sought an interview. The state objected, arguing

that defense counsel should not be allowed to speak with Sittig

until after Sittig had testified. The trial court ruled that

Blackmon's counsel was entitled to read Sittig's written statement

and was to be given five minutes to ask Sittig whether the

statement was true. The trial court instructed that a prosecutor

was to be present during defense counsel's interview. That

interview was conducted in a police car in the presence of a

prosecutor and several law enforcement officers. Following the

interview, Blackmon's counsel objected on the basis of surprise and

asked for a one-week continuance to investigate the uncharged

allegations. This objection was overruled and the continuance was

denied.
 

2Blackmon v. State, 775 S.W.2d 649, No. 70001 (Tex.Crim.App.

Sept. 13, 1989) (unpublished).

 

3Blackmon v. Texas, 496 U.S. 931 (1990).

4

On October 29, 1987 the state announced that two of Blackmon's

former cellmates in the Shelby County jail, Smith and Hall, would

be called as witnesses. Warrants were issued to have them brought

back to Shelby County. According to Blackmon, once Smith and Hall

arrived at the Shelby County jail they were instructed to remain

hidden from Blackmon in order to prevent any investigation into the

content of their testimony. Smith and Hall faithfully followed

those instructions, including crawling on the floor in certain

parts of the jail in order to remain out of Blackmon's sight. When

counsel for Blackmon made repeated inquiries at the jail in

attempts to interview the former cellmates, jail personnel

misrepresented that they were not present. It was only on the eve

of their testimony that their presence was made known and then only

late at night by telephone long after Blackmon's counsel had gone

to sleep. According to Smith and then-jailor Phillip Lynch, both

Smith and Hall were present in the Shelby County jail several days

prior to trial but the state concealed their presence despite

repeated inquiries from Blackmon's counsel.

At the conclusion of the punishment phase the jury

affirmatively answered the special issues; the trial court assessed

punishment of death by lethal injection. Blackmon's conviction and

sentence were affirmed on direct appeal,2 and the United States

Supreme Court denied Blackmon's petition for writ of certiorari.3
 

4759 F.2d 1194 (5th Cir. 1985), cert. denied, 475 U.S. 1132

(1986).

5

Blackmon unsuccessfully sought habeas relief in state court and

then filed the instant habeas petition. The district court granted

the state's motion for summary judgment rejecting Blackmon's

petition but granted a certificate of probable cause. Blackmon

timely appealed.

Analysis

After addressing the merits of two of Blackmon's 31 federal

habeas claims, the district court concluded, "[a]fter reviewing the

entire record, the Court finds that all of Blackmon's remaining

claims for relief are without merit." Blackmon asserts that

because the district court addressed only two of his 31 claims, its

order did not provide the specificity necessary to provide a

meaningful opportunity for review by this court, citing Flowers v.

Blackburn.

4 The district court expressly stated, however, that it

had reviewed the pleadings and entire record to determine that

Blackmon had not raised any genuine issue of material fact and that

the state was entitled to judgment as a matter of law. Flowers is

distinct in that respect. In this setting, the fact that the

district court specifically addressed only two out of 31 claims

does not, alone, constitute reversible error.

Blackmon next contends that the findings of fact adopted by

the state court were drafted by an assistant district attorney and

provided to the court ex parte without affording Blackmon notice or

an opportunity to respond. Blackmon asserts that in granting
 

5United States v. Cates, 952 F.2d 149 (5th Cir.), cert.

denied, 112 S.Ct. 2319 (1992).

 

6The special issues provided under Tex. Code Crim. Proc. Ann.

art. 37.071(b) are:

(1) whether the conduct of the defendant that caused the

death of the deceased was committed deliberately and with

the reasonable expectation that death of the deceased or

another would result;

(2) whether there is a probability that the defendant

would commit criminal acts of violence that would

constitute a continuing threat to society;

(3) if raised by the evidence, whether the conduct of the

defendant in killing the deceased was unreasonable in

response to the provocation, if any, by the deceased.

 

7Hernandez v. State, 643 S.W.2d 397, 401 (Tex.Crim.App. 1982),

cert. denied, 462 U.S. 1144 (1983).

6

summary judgment the district court improperly accorded the state

court's factual findings a presumption of correctness. Blackmon

did not raise this claim in the trial court and it will not be

considered for the first time on appeal.5

Blackmon complains that only the first two special issues

regarding deliberateness and future dangerousness were submitted to

the jury and that the third special issue regarding provocation was

not.6 In order to raise the issue of provocation, "it is necessary

that there be evidence of the deceased's conduct just prior to his

death; also, that evidence must be sufficient to be considered

provocation."7 Here, Blackmon was a party to the criminal episode

in which Rogers lured Rinkle into his home to steal his money.

During his interrogation Sheriff Paul Ross asked: "Did you ever

tell her to go back and get in bed with Carl or did she do this on

her own?" Blackmon answered: "I told her she could put the make
 

8McBride v. State, 862 S.W.2d 600, 611 (Tex.Crim.App. 1993),

petition for cert. filed (Dec. 21, 1993) (Statements by the victim

were "insufficient to constitute `provocation' where appellant

creates the criminal episode as he did here, initiates the

violence, and assaults several unarmed individuals with a deadly

weapon."). 

 

9See, e.g., Marquez v. Collins, 11 F.3d 1241 (5th Cir. 1994)

(finding that the jury could have considered defendant's jealous

rage due to wife's infidelity in his murder of his niece under

future dangerousness special issue).

 

10Brady v. Maryland, 373 U.S. 83 (1963).

7

on him like she was but I didn't actually tell her she had to."

Rinkle was unarmed when he answered the door and could not defend

himself. As Blackmon participated in the creation of the criminal

episode, initiated the violence, and brutally assaulted and killed

an unarmed individual, the fact that he saw Rogers perform as

instructed is patently insufficient to establish provocation.8

Blackmon further claims that the Texas capital sentencing

scheme is unconstitutional as applied to his case because the jury

was not allowed to give full consideration to the mitigating

evidence that he murdered Rinkle in a jealous rage. Blackmon's

claim in unavailing. The jury was able to consider any mitigating

effect that evidence might have under the future dangerousness

issue. The jury could have concluded that Blackmon killed in an

episodic jealous rage and that he would therefore be unlikely to

pose a danger in the future.9 We perceive no constitutional

violation.

Blackmon raises a Brady10 claim by asserting that the state

improperly withheld Rogers' statements and testimony until the

sentencing phase so as to avoid a jury instruction on voluntary
 

11Id. at 87.

 

12See May v. Collins, 904 F.2d 228 (5th Cir. 1990), cert.

denied, 498 U.S. 1055 (1991).

 

13United States v. Agurs, 427 U.S. 97 (1976); Mattheson v.

King, 751 F.2d 1432 (5th Cir. 1985), cert. dismissed, 475 U.S. 1138

(1986).

8

manslaughter. In order to succeed on a Brady claim Blackmon must

show: (1) the prosecution suppressed evidence; (2) the evidence

was favorable; and (3) the evidence was "material either to guilt

or punishment."11 Evidence is material only if there is a

reasonable probability that, had the evidence been disclosed, the

result of the proceeding would have been different. The state is

not required to furnish a defendant with exculpatory evidence that

is fully available to the defendant or that could be obtained

through reasonable diligence.12 The exculpatory evidence to which

Blackmon refers is Rogers' testimony and statements concerning

Blackmon's alleged jealous nature and sudden passion killing of

Rinkle. Any jealous nature Blackmon might possess would be

information known to Blackmon; thus there was no need for the state

to provide such evidence. Furthermore, the prosecutor is under no

duty to make a complete and detailed accounting to defense counsel

of all investigatory work done.13 No Brady violation occurred.

Blackmon contends that Smith, Hall, and Sittig each obtained

promises of assistance in exchange for their testimony implicating

Blackmon in the uncharged double homicide in Oklahoma, but that

they each falsely testified that they had not been promised

assistance and that the prosecutor used the false testimony in his
 

14Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S.

83 (1963).

 

15Napue v. Illinois, 360 U.S. 264 (1959).

 

16United States v. Blackburn, 9 F.3d 353 (5th Cir. 1993).

 

17Giglio, 405 U.S. at 153.

 

18Q. And, of course, you're not getting anything --

any consideration for coming up here and

testifying, you're just doing it because

you're a good buy [sic]?

 A. No, sir. I just -- I just came tell [sic]

what I heard, that's all.

9

closing argument. Blackmon asserts a due process violation in the

state's suppression of impeachment evidence14 and its use of the

perjured testimony.15 Blackmon additionally asserts that because

the prosecutor failed to respond to the allegation that a deal was

made with Sittig in contravention of the lower court's order, the

record in inconclusive and an evidentiary hearing is essential.

To obtain a reversal based upon the prosecutor's use of

perjured testimony, Blackmon must show that (1) the statements were

actually false; (2) the state knew they were false; and (3) the

statements were material, i.e., a highly significant factor

reasonably likely to have affected the jury's verdict.16 To obtain

reversal based upon the prosecutor's suppression of impeachment

evidence, Blackmon must likewise show that the evidence was

material, irrespective of good faith or bad faith by the

prosecution.17 From the record we are able to determine that Smith,

despite receiving a letter from the prosecutor which was sent to

the Parole Board in exchange for his testimony, denied that any

such agreement existed.18 During cross-examination Hall indicated
 

19Q. Did you ever tell anybody before last Friday

anything about this?

 A. No, sir.

 Q. When you were bench warranted up here, you

thought it was the right thing to do, is that

right?

 A. Yes, sir.

 Q. Just to get your conscience clear?

 A. I guess so.

 Q. Not getting anything out of this are you?

 A. No, sir.

 Q. No consideration, nobody is going to write

anything for you to the Parole Board?

 A. Well, I was told that if I told the truth that

it would help me out on parole.

10

an agreement whereby the prosecutor would help him before the

Parole Board if he testified truthfully,19 and the prosecutor

acknowledged the agreement during closing argument. It is unclear

from the record whether Sittig had an agreement with the prosecutor

which was not revealed to Blackmon or the jury. A letter was sent

by the prosecutor to the Oklahoma Parole Board acknowledging

Sittig's cooperation with Blackmon's prosecution. As the

prosecutor never responded to these allegations, Sittig's affidavit

indicates there was an agreement, and the state vigorously denies

that one existed, there appears to be a genuine issue of material

fact. The record does not reflect whether Smith had a deal which

was never revealed and, as noted, is unclear with respect to

Sittig. A determination of materiality cannot be made at this

point. Because Smith, Hall, and Sittig were the only sources of

evidence to link Blackmon directly to the Oklahoma murders, we

remand for an evidentiary hearing for the express purpose of

clarifying the conflicting evidence and the making of all relevant
 

20Although the district court found that Sittig gave his

statement of his own free will, in light of the contradictory

evidence we find that such a determination cannot be made without

an evidentiary hearing. The state habeas court's finding of fact

in this regard is: "The record is devoid of any evidence that

there were undisclosed agreements on the part of the State to

provide lenient treatment for any of the State's witnesses in

exchange for their testimony." (Findings of Fact ¶ 21) (emphasis

added). This is clearly unsupported by the record which contains

conflicting evidence. This conflict must be resolved. See

Townsend v. Sain, 372 U.S. 293 (1963).

 

21Blackmon also interjects that due to the lack of adequate

notice, the state had a duty under Brady to produce the prior

testimonies of James Sherfield (the surviving eyewitness to the

Oklahoma attack) and Officer Madison, and Sittig's plea colloquy.

As Blackmon shows no legal basis for this argument, we do not

accept same.

 

22Gardner v. Florida, 430 U.S. 349 (1977) (plurality).

 

23See, e.g., Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979),

cert. denied, 444 U.S. 1013 (1980); Lockett v. Blackburn, 571 F.2d

309 (5th Cir.), cert. denied, 439 U.S. 873 (1978).

11

fact-findings.20

Next Blackmon alleges a due process violation because of the

state's hiding of witnesses Smith and Hall and his lack of access

to Sittig, and he further alleges that these claims cannot be

resolved without an evidentiary hearing.21 A state violates a

capital defendant's right to due process under the fourteenth

amendment when it uses evidence at the sentencing phase of the

trial which the defendant does not have a meaningful opportunity to

rebut.22 This violation becomes more pronounced when the state

makes an affirmative effort to conceal witnesses to prevent a

timely investigation and fair presentation of testimony.23 A prima

facie showing of a due process violation, however, does not entitle
 

24United States v. Henao, 652 F.2d 591 (5th Cir. Unit B 1981).

12

a defendant to reversal absent a showing of prejudice.24

Although the state court found that no unfair surprise

occurred with respect to introduction of the Oklahoma murders,

Blackmon raises an additional objection. He complains that he was

denied adequate access to Sittig, contending that the circumstances

surrounding the brief interview in a police car did not provide a

fair opportunity for preparation of a proper defense. Blackmon

similarly complains of inadequate access to Smith and Hall who

allegedly were hidden in the jail. Without appropriate access to

Smith, Hall, and Sittig, Blackmon could not prepare for and impeach

them with any arrangements which might have been made in exchange

for their testimony. No state court findings were made with

respect to this aspect of Blackmon's claim. Remand is necessary

for an evidentiary hearing in order to evaluate more properly

Blackmon's due process claim as it relates to inadequate access,

and to determine whether prejudice existed.

With respect to unfair surprise, Blackmon points to two pieces

of evidence which could not be rebutted because of the minimal

notice that the Oklahoma double homicide evidence would be

introduced: Sittig's testimony that only he and Blackmon were

involved in the double homicide and Officer Madison's testimony

that a car fitting the description of Blackmon's, with Texas

license plates, was present at the scene of the Oklahoma murders.

The state court found that it could not determine what Blackmon's

counsel might have done differently had more time been given to
 

25Massiah v. United States, 377 U.S. 201 (1964).

13

prepare. Blackmon asserts that with more time he could have shown

that Sittig's testimony at Blackmon's trial conflicted with

statements he made during his plea colloquy. With respect to

Officer Madison's testimony, Blackmon contends that he could have

shown that Officer Madison testified falsely regarding the car with

Texas license places. Without examining the transcript of the

Oklahoma trial we cannot know if that is the case. We must

likewise remand for an evidentiary hearing and appropriate findings

thereon.

Finally, Blackmon asserts that the district court erred in

rejecting his sixth amendment Massiah25 claim without holding an

evidentiary hearing. Blackmon's former cellmates, Smith and Hall,

testified that Blackmon made incriminating statements concerning

the two Oklahoma murders. Blackmon contends that the information

contained in these statements was originally supplied to the

informants by Shelby County jail officials, the informants were

promised assistance in their cases in exchange for help in

obtaining information from Blackmon, and the informants

subsequently used that information to taunt Blackmon into

confessing to the crime. The district court reviewed the evidence

submitted by Blackmon without a hearing and determined that the

record supports the conclusion that no sixth amendment violation

occurred.

"It is the duty of the district court, and ours as well, to

review de novo the legal conclusions reached on the basis of the
 

26May v. Collins, 955 F.2d 299, 315 (5th Cir.), cert. denied,

112 S.Ct. 1925 (1992).

 

27The district court noted that the state "trial court did not

make any express findings of fact or conclusions of law on this

issue but did conclude that the `applicant has failed to demonstate

that his conviction was unlawfully obtained.'"

 

28372 U.S. 293, 313-14 (1963) ("There cannot even be the

semblance of a full and fair hearing unless the state court

actually reached and decided the issues of fact tendered by the

defendant.").

 

29Maine v. Moulton, 474 U.S. 159, 176 (1985).

14

facts."26 Because no state court findings were entered relating to

this claim,27 we conclude that the district court's denial of relief

without benefit of an evidentiary hearing violated Townsend v.

Sain.

28 Although the state correctly points out that the "Sixth

Amendment is not violated whenever -- by luck or happenstance --

the State obtains incriminating statements from the accused after

the right to counsel has attached,"29 it is not clear from the

record that the information was obtained from Blackmon by "luck or

happenstance." To the contrary, the affidavit of Raymond Smith

states that "After that, Keith and I kept our ears open around

Ricky. But he didn't say much at all. Finally, Keith got him to

talking. . . ." In addition, when Hall testified regarding the

information obtained from Blackmon, he stated, "He [Blackmon] said

that -- well, I asked him -- we asked him why did he kill them

. . . ."

The state argues that the evidence fails to show that Smith

and Hall were ever instructed to interrogate Blackmon. Even if

that is true, it is unavailing. Our decision in United States v.
 

30954 F.2d 1015 (5th Cir. 1992).

 

31Id. at 1019-20.

 

32Kuhlmann v. Wilson, 477 U.S. 436 (1986).

15

Johnson30 is instructive on this point. In Johnson we explained

that even when officers instruct an agent not to ask a defendant

questions about his case, if the agent does more than just listen

to elicit incriminating remarks, a sixth amendment violation

occurs.31 Thus our inquiry must focus on what Smith and Hall did

to obtain the incriminating statements. It is not clear how

Blackmon was convinced to talk or whether Smith and Hall, acting as

agents of the state, deliberately attempted to elicit incriminating

remarks.32 The affidavits and testimony present a genuine issue of

material fact; the granting of summary judgment was inappropriate.

In attempting to answer the sixth amendment issue before us, it is

immediately apparent that the credibility determinations required

cannot be made. An evidentiary hearing is required.

We VACATE the judgment of the district court and REMAND for

further proceedings consistent herewith.