Wilder v. Cockrell

• Decision Date: 26 November 2001
• Docket Number: No. 01-40296,01-40296
• Citation: 274 F.3d 255
• Parties: (5th Cir. 2001) DONALD ALLEN WILDER, Petitioner-Appellee, v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 255

274 F.3d 255 (5th Cir. 2001)

DONALD ALLEN WILDER, Petitioner-Appellee, v. JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant.

No. 01-40296

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

November 26, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Texas

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The district court having granted conditional habeas relief to Donald Wilder, at issue is whether his several evidentiary and ineffective assistance of counsel claims, made in varying forms during direct appeal and state habeas proceedings, can, for purposes of 28 U.S.C. § 2254(b)(1), exhaust a federal due process claim based on Chambers v. Mississippi, 410 U.S. 284 (1973) (holding due process precludes mechanistic application of hearsay rule to prevent criminal defendant's introduction of exculpatory third-party confessions when surrounding circumstances provide "considerable assurance of their reliability"). The State maintains: Wilder failed to exhaust his Chambers claim in Texas state court; and, in the alternative, the district court, in ruling on the Chambers claim, failed to accord the state court's evidentiary ruling the deference required by federal habeas law, 28 U.S.C. § 2254(d)(1). VACATED and REMANDED with INSTRUCTIONS.

I.

Wilder was convicted of theft and murder in Texas state court. The events giving rise to the convictions began when Wilder, along with brothers Jerry and Jeffrey Furr, arrived in a pickup truck at the McEvers' property. The men hooked the McEvers' flatbed trailer to the pickup truck, and one of them drove the McEvers' tractor onto the trailer. Additionally, one of the men loaded a kerosene heater and door on the trailer.

Kay McEvers, along with her daughters and a family friend, witnessed part of the theft. As the men departed in the pickup truck, trailer in tote, the daughters and friend pursued in an automobile along County Road 2205. They could not keep pace with the pickup truck.

Further down Road 2205, the truck ran a stop sign and careened into an intersection, broadsiding another vehicle entering the intersection. The driver of the second vehicle suffered massive injuries that caused her death.

The three men fled on foot from the scene of the accident but were soon apprehended. Jerry Furr (Furr) was brought to Deputy Sheriff Johnson's vehicle, where he told the Deputy that his brother, Jeffrey Furr, and Wilder did not know the trailer and tractor were being stolen.

At Wilder's trial in March 1995, defense counsel began questioning the Deputy about Furr's statement. The State objected on hearsay grounds. At a hearing, held outside the presence of the jury, on the admissibility of Furr's statement, Deputy Johnson testified:

[Jerry] Furr said that he was the driver of the vehicle. He also stated that Donny Wilder and his brother [, Jeffrey Furr,] didn't know didn't have anything to do with the theft of the tractor or the trailer; that they thought they were going to haul hay. They were just stopping to pick up the trailer and the tractor.

Defense counsel claimed the statement was excepted from the hearsay rule under Tex. R. Crim. Evid. 803(1) (present sense impression) and 803(24) (statement against interest). In detailed findings of fact and conclusions of law, the trial court ruled instead that the statement: was not made while Furr was perceiving the event described or immediately thereafter, as required by Rule 803(1) for present sense impression; and was not clearly trustworthy, as required by Rule 803(24) in criminal cases for a statement against penal interest. Consequently, the State's objection was sustained.

Accordingly, Wilder's attorney attempted later to call Furr as a witness; Furr was in county jail awaiting trial. Outside the presence of the jury, counsel for Wilder admitted: he had spoken to Furr's attorney who was then out of state about the possibility of Furr's testifying; and Furr's attorney had replied, "Not on your life; not without some immunity". It appeared certain that, if called as a witness, Furr would claim his Fifth Amendment right against self-incrimination. In the light of the absence of Furr's counsel, the court denied the request to call Furr. The trial proceeded, and the jury found Wilder guilty of theft and murder.

Wilder appealed his conviction to an intermediate court of appeals. He contended the trial court erred in: not allowing him to call Furr; denying a motion to grant Furr limited immunity to testify; and not admitting Furr's testimony as a statement against penal interest, pursuant to Tex. R. Crim. Evid. 803(24). The intermediate appeals court affirmed in May 1997, ruling in part that the trial court had not abused its discretion in finding the statement not clearly trustworthy as required by Rule 803(24). That October, the Texas Court of Criminal Appeals refused discretionary review.

Wilder then filed a pro se application for state habeas relief. Among other issues, he raised ineffective assistance of counsel. The state habeas court (Wilder's former trial court) summarily recommended denial of the application. In February 1999, the Court of Criminal Appeals, however, remanded the ineffective assistance claim to the habeas court to take further evidence.

After the remand, but before the hearing, Wilder retained counsel and filed an amended habeas application. The habeas court conducted a hearing, made factual findings as to the ineffective assistance claim, concluded the application was without factual merit, and again recommended denial. That September, the Court of Criminal Appeals denied the application without written opinion. In so doing, the Court of Criminal Appeals did not mention the additional claims raised in Wilder's amended application.

The next month (October 1999), Wilder filed the present federal habeas application, presenting many of the claims presented in his amended state application. The matter was referred to a magistrate judge, who recommended dismissing the entire application without prejudice for failure to exhaust state remedies with respect to the claims first presented in the amended state habeas application.

The district court disagreed, ruling that Wilder had exhausted state remedies because: exhaustion requires only that the applicant pursue a claim for state habeas relief before seeking federal habeas relief; and the Court of Criminal Appeals had accepted Wilder's amended application. Wilder v. Johnson, No. 6:99-CV-606 (E.D. Tex. 12 Mar. 2001) (citing Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000)). The district court concluded Wilder had "provide[d] the state courts with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim". Id. (quoting Anderson v. Harless 459 U.S. 4, 6 (1982)) (internal quotations omitted; alteration in original). Accordingly, the district court considered the merits of Wilder's habeas application.

Implicitly holding Wilder's pursuit of the Rule 803(24) evidentiary claim on direct appeal served to exhaust a federal due process claim premised on the exclusion of Furr's statement, the court considered whether that exclusion violated Chambers v. Mississippi, 410 U.S. 284 (1973). Chambers held that due process precludes a mechanistic application of the hearsay rule to prevent a criminal defendant from introducing into evidence exculpatory third-party confessions when surrounding circumstances provide "considerable assurance of their reliability". Id. at 300-03. The district court held: the circumstances surrounding Furr's making the statement and Wilder's offering it at trial provided such assurance; the statement should have been admitted; and its exclusion prejudiced Wilder and had a substantial and injurious effect on the verdict.

Accordingly, the district court granted conditional habeas relief, ordering Wilder released unless the State retried him within 120 days. In the light of its Chambers ruling, the district court did not address Wilder's remaining claims. In May 2001, on motion of the State, the district court granted a stay pending appeal.

II.

"We review a court's findings of fact on requests for habeas corpus relief for clear error and its rulings on issues of law de novo." Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999). While it is at least arguable that Wilder did not present the Chambers claim to the district court that is, that the court considered it sua sponte we will assume the claim, as discussed infra, was presented in his federal habeas application and limit our review to whether it was exhausted in state court.

Exhaustion is required by 28 U.S.C. § 2254(b)(1), which provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that

(A) the applicant has exhausted the remedies available in the courts of the State....

Whether a federal habeas petitioner has exhausted state remedies is a question of law. See Whiteley v. Meacham, 416 F.2d 36, 39 (10th Cir. 1969), rev'd on other grounds sub nom. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560 (1971); Rose v. Dickson, 327 F.2d 27, 28 (9th Cir. 1964).

To exhaust, a petitioner "must have fairly presented the substance of his claim to the state courts". Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)), cert. denied, 523 U.S. 1139 (1998). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal citation omitted). Indeed, "where petitioner advances in federal court an argument based on a legal theory...