FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

January 20, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-12201

Non-Argument Calendar

________________________

D. C. Docket No. 04-00087-CV-J-32-MCR

RICKEY EDWARD FILLMORE, 

a.k.a. 

Johnny Leslie Simmons, 

Petitioner-Appellant, 

versus 

SHERIFF NEIL PERRY, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

Respondents-Appellees. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(January 20, 2006)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
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Rickey Edward Fillmore, a Florida prisoner, proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-32, 110 Stat. 1214 (1996), governs this appeal because Fillmore filed his

motion after the AEDPA’s effective date. We granted a certificate of appealability

solely on the following question: whether the district court, based on the record

before it, erred in denying appellant’s claim that his state court guilty plea was

involuntary. 

On appeal, Fillmore argues that the state circuit court participated in his plea

negotiation by stating that it would recommend that Fillmore serve his probation in

Indiana and, because of the court’s participation and promise, Fillmore was

induced to plead guilty. Fillmore further contends that the district court erred in

denying his involuntary plea claim without reviewing the transcript from the state

court plea hearing and in failing to compel the State to submit the transcript to the

court for review. He also maintains that the transcript is crucial to the district

court’s determination that he was given a full and fair hearing in the state court and

whether the state court’s participation in the plea hearing resulted in an involuntary

plea. 

When reviewing a district court’s denial of a § 2254 petition, we review
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“questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error.” LeCroy v. Sec’y, Fla. Dep’t of Corrections, 421 F.3d 1237, 1259

(11th Cir. 2005). Moreover, “[t]he district court’s determination of whether the

state court decision was reasonable . . . is subject to de novo review.” Id. (internal

quotation and citation omitted). 

A § 2254 petition shall not be granted unless a “claim that was adjudicated

on the merits” by the state court:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding. 

28 U.S.C. § 2254(d). In a § 2254 proceeding, “a determination of a factual issue

made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). Further, “[a] petitioner has the burden of

establishing his right to federal habeas relief and of proving all facts necessary to

show a constitutional violation.” Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.

2001). Rule 5 of the rules governing § 2254 cases, however, requires that the

State’s answer to the petition contain the following:

what transcripts (of pretrial, trial, sentencing, or post-conviction
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proceedings) are available, when they can be furnished, and what

proceedings have been recorded but not transcribed. The [State] must

attach to the answer parts of the transcript that the [State] considers

relevant. The judge may order that the [State] furnish other parts of

existing transcripts or that parts of untranscribed recordings be

transcribed and furnished. If a transcript cannot be obtained, the

[State] may submit a narrative summary of the evidence. 

Rule 5(c), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Such transcripts

are crucial because without them, a petitioner would find it difficult if not

impossible to satisfy the steep burden of being entitled to habeas relief.

As an initial matter, Fillmore’s involuntary plea claim is not procedurally

barred because of a failure to exhaust the claim in the state court proceedings. 

Based on a liberal construction of Fillmore’s pleadings, he raised his claim in his

Florida Rule of Criminal Procedure 3.850 motion before the state circuit court and

the Fifth District Court of Appeal (“DCA”), and in his petition for writ of habeas

corpus in the DCA.

As to the merits of Fillmore’s claim, Fillmore bears the burden of proving

the facts that establish a constitutional violation and his right to habeas relief. See

Romine, 253 F.3d at 1357 (explaining that where “the evidence does not clearly

explain what happened, or more accurately why something failed to happen, the

party with the burden loses”). However, under Rule 5 of the rules governing

§ 2254 cases, the State must provide, and indicate the availability of, any relevant
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transcripts, and, if such transcripts are not available, the State may submit a

narrative summary of the evidence. Rule 5(c), Rules Governing § 2254 Cases, 28

U.S.C. foll. § 2254. The State failed to provide or indicate the availability of the

transcript from Fillmore’s plea hearing in its response to Fillmore’s petition. 

Without receiving such a transcript or narrative, Fillmore was not afforded an

opportunity to meet his burden with regards to overcoming the presumption of

correctness of the state court’s factual findings. Accordingly, the district court

inappropriately applied this presumption of correctness regarding whether

Fillmore’s plea was voluntary without Fillmore having access to all of the

information guaranteed under Rule 5 and needed to rebut this presumption. Cf.

Wilson v. Cooke, 814 F.2d 614, 615 (11th Cir. 1987) (per curiam) (district court

could not rely on magistrate’s recommendation regarding habeas petition when the

magistrate did not meet its obligation to furnish a transcript of the evidentiary

hearing that was the basis for the recommendation). Additionally, we cannot give

appropriate appellate review without either a transcript or narrative on the record. 

See id. 

Accordingly, we vacate and remand to the district court with instructions for

the court to require the State to comply with Rule 5 and to determine whether a

transcript of Fillmore’s plea hearing exists or a recording of it is available for

transcription. 

VACATED AND REMANDED.