Guidry v. Dretke, 03-20991.

• Decision Date: 25 October 2005
• Docket Number: No. 03-20991.,03-20991.
• Parties: Howard Paul GUIDRY, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

429 F.3d 154

Howard Paul GUIDRY, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 03-20991.

United States Court of Appeals, Fifth Circuit.

October 25, 2005.

Kenneth A. Williams, Southwestern University School of Law, Los Angeles, CA, Robert M. Rosenberg, Wilton Manors, FL, for Guidry.

Tina J. Dettmer, Austin, TX, for Dretke.

Appeal from the United States District Court for the Southern District of Texas; Vanessa D. Gilmore, Judge.

ON PETITION FOR REHEARING EN BANC

(Opinion Jan. 14, 2005, 5th Cir., Guidry v. Dretke, 397 F.3d 306)

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in active service not having voted in favor (FED. R.APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

The author of the underlying majority opinion, RHESA HAWKINS BARKSDALE, Circuit Judge, offers the following comments regarding the Dissent to the Denial of Petition for Rehearing En Banc (Dissent to Denial).

Howard Guidry was convicted in Texas state court of murder for remuneration and given the death penalty (death-penalty conviction). The district court granted conditional habeas relief pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA); our divided panel affirmed. The majority opinion and dissent from that opinion go into great detail regarding the numerous factual and legal issues surrounding AEDPA's application, including whether the district court abused its discretion in holding an evidentiary hearing. Guidry v. Dretke, 397 F.3d 306 (5th Cir.2005); id. at 331 (Garza, J., dissenting). Usually, no response is required to a dissent from the denial of en banc review; the underlying panel opinion is answer enough. This is an exception because the Dissent to Denial is wide of the mark. The most glaring instance is its reliance on an AEDPA issue that was never raised by the State in contesting the conditional habeas relief: the interplay of the properly-held evidentiary hearing and 28 U.S.C. § 2254(d)(2) (federal habeas relief to be granted if the state court "decision ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" (emphasis added)).

I.

For his death-penalty conviction, Guidry was granted conditional federal habeas relief on his Fifth and Sixth Amendment claims. Guidry, 397 F.3d at 309. The Dissent to Denial challenges only the majority's holdings on the Fifth Amendment (confession) claim. To understand why en banc review is not compelled for this extremely fact-specific appeal, a far more detailed recitation of the facts is required than is provided by the Dissent to Denial. Of course, the most complete recitation is found in the underlying opinion. See id. at 309-18. Although the following recitation is far more complete than that offered by the Dissent to Denial, it only scratches the surface.

On 1 March 1995, Guidry was arrested for bank robbery; in his possession was the gun used to murder Farah Fratta on 9 November 1994. Id. at 310. On 7 March 1995, while Guidry was being held on the bank-robbery charge, Detectives Roberts and Hoffman questioned him about Farah Fratta's murder, resulting in his confession. Id.

The testimony at the pre-trial hearing on Guidry's motion to suppress the confession provided "sharply contrasting versions of the interrogation leading to the confession". Id. Guidry claimed: his robbery-charge attorney had instructed him not to discuss anything with anyone; therefore, when interrogated about Farah Fratta's murder, Guidry requested his attorney; after his second request, Detectives Roberts and Hoffman left the room; on returning, they advised Guidry they had contacted his attorney, who had given Guidry permission to answer their questions; and, in reliance on such alleged permission, Guidry confessed. Id. at 311.

Guidry's suppression motion claimed his confession was violative of his Fifth Amendment rights. Id. at 310. At the 1996 (first) pre-trial hearing on the motion, Gottlieb, an attorney unaffiliated with the Guidry case, testified about a 15 March 1995 conversation in the chambers of a Texas state judge, who was not present. Id. at 312-13. Those present for the in-chambers conversation were Gottlieb, Guidry's two attorneys for his murder charge, an assistant district attorney, Detective Roberts, and another detective. Id. at 313. According to Gottlieb, while discussing the circumstances under which Guidry had confessed approximately a week earlier, Detective Roberts and the other detective stated that they had talked to Guidry's attorney and obtained his permission for them to talk to Guidry before they took his statement. Id. at 313. Gottlieb testified that she and other in-chambers attorneys were shocked that such permission would have been given to a person suspected of capital murder. Id.

Detective Roberts, on the other hand, gave inconsistent testimony at the 1996 (first) pre-trial hearing, ultimately testifying that he did not know whether Guidry had an attorney, and that he "never did confirm if he had an attorney". Id. at 311-12 (emphasis in original). As discussed infra, a second hearing was held after Guidry's attorneys at the first hearing were allowed to withdraw so they could testify about the in-chambers conversation. As he had done at the first hearing, Detective Roberts gave inconsistent testimony at the 1997 (second) pre-trial hearing. First, he testified that he had "no knowledge that [Guidry] had an attorney"; later, he testified that Guidry had told him he had an attorney but never asked to speak with him. Id. at 312 (emphasis in original). He also testified that he had no recollection of the 15 March in-chambers conversation. Id. at 314.

Duerr, Guidry's robbery-charge attorney, testified at the 1996 (first) hearing that he never gave permission for anyone to discuss such matters with Guidry. Id. at 313. At this point in the hearing, Guidry's two murder-charge attorneys, who had been present at the in-chambers conversation, moved to withdraw as Guidry's counsel so that they could testify about that conversation; the motion was granted. Id. (stating that both attorneys, in addition to Gottlieb, testified at the subsequent 1997 hearing).

The suppression motion was denied orally prior to trial. "Just before doing so, the state court stated that, for purposes of ruling on the admissibility of Guidry's confession, the 15 March in-chambers `conversation was absolutely meaningless, except as it relate[d] to credibility.'" Id. at 314 (alteration and emphasis in original). On 27 March 1997, the trial court entered post-verdict written findings of fact and conclusions of law regarding its pre-trial denial of Guidry's suppression motion, but did not mention the attorneys' testimony at the two pre-trial evidentiary hearings regarding the in-chambers conversation. Id. at 314-15.

On direct appeal, the Texas Court of Criminal Appeals rejected, inter alia, Guidry's Fifth Amendment claim, holding "the trial court's findings were sufficiently detailed". Id. at 315 (quoting Guidry v. State, 9 S.W.3d 133, 142 (Tex.Crim.App.1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000)) (internal quotations omitted).

In May 2000, Guidry filed a state habeas petition raising, inter alia, his Fifth Amendment claim. Id. at 316. Two months later, without an evidentiary hearing, the state habeas trial court adopted verbatim the State's proposed findings of fact and conclusions of law. Id. In November 2000, the Texas Court of Criminal Appeals denied habeas relief, ruling that the habeas trial court's findings and conclusions were supported by the record. Id. Guidry filed his federal habeas petition in November 2001, raising, inter alia, his Fifth Amendment claim and requesting an evidentiary hearing. Id. The district court "denied the State's summary judgment motion and ordered an evidentiary hearing for the voluntariness vel non of Guidry's confession". Id. at 316-17 (detailing the district court's concern about the substantial factual questions pertaining to Guidry's confession, including the state court's failure to evaluate the veracity of the attorneys' testimony as well as the detectives' inconsistent and contradictory testimony). In district court, the State never objected to the evidentiary hearing's being held. Id. at 317.

At the district court evidentiary hearing, Guidry and the attorneys gave "substantially the same testimony" as at the two state pre-trial hearings. Id. On the other hand, Detective Roberts' testimony contained several substantial differences from his state-court testimony. Id. For example, he testified for the first time that, prior to questioning Guidry, he had contacted an assistant district attorney to seek permission to do so because, based on the length of time Guidry had been in jail on the robbery charge, Roberts thought Guidry probably had an attorney. Id. at 317-18. As another example, Roberts testified, again for the first time, that he recalled the in-chambers conversation; and that, in the conversation, he never told Guidry's then murder-charge attorneys that, during Guidry's interrogation, he had contacted Guidry's robbery-charge attorney. Id. at 317.

Based on the evidentiary hearing, the district court ruled that, "pursuant to 28 U.S.C. § 2254(e)(1), Guidry, with the requisite clear and convincing evidence, rebutted the presumption of correctness AEDPA accords to state court determinations of fact". Id. at 318. Accordingly, in September 2003, the district court granted conditional habeas relief on, inter alia, Guidry's Fifth Amendment claim. Id. On...