Opposition Brief — Dretke v. Guidry (No. 05-965)

foam

(9) Supreme Court, U_S.

FILED

No. 05-965 FEB 8 - 2006

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

HOWARD PAUL GUIDRY,

Petitioner

¥,

DOUG DRETKE, Director, Texas Department of

Criminal Justice, Correctional Institutional Division

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Kenneth A. Williams Robert M. Rosenberg

Southwestern University School of Law 1309 NE 23rd Street

675 S. Westmoreland Avenue Wilton Manors, FL 33305

Los Angeles, CA 90036 (832)816-2955

(213)738-6806

ATTORNEYS FOR PETITIONER

Capital Case

QUESTIONS PRESENTED

Whether a state courts’ findings of fact regarding the voluntariness of a

confession, made without considering highly probative testimony, are entitled to a

presumption of correctness.

Whether a state court's decision regarding the voluntariness of a confession was

based on an unreasonable determination of the facts where it ignored crucial

testimony.

Whether a federal habeas court abused its discretion by granting an evidentiary

hearing when neither the AEDPA nor Rule 8 of the Rules Governing Section

2254 Cases precludes it from doing so.

TABLE OF CONTENTS

Page

QUESTIONS PEGE ee i cece ceaceretceescocbececccedccevecss i

TABUE OF AU TiAir ee i ee vebereetchecvedereseccescosccedce iii

ST ATENEO FU i sikh ais s dh ake bined sacsves 1

I POC OF TOO GEIR < ov ik bec cdeeeeressessceccdcccvesvecccece l

II. Facts Relating to the Fifth Amendment Claim................ |

SUMMARY OF TEE ARGsURGETE edvevevecercccvecceccseveuvees 8

ARGUMENT 05 cciccnssotawecteeeesesceseareseseececesveoocenes 8

I. The Court of Appeals' Holding That the State Court's

Fact-Finding Was Defective Because it Ignored or Overlooked

Highly Probative Testimony Central to Mr. Guidry's Claim

is Consistent With Decisions of This Court and Other Courts

se SRT ETEE TE ET OT LURE T OUTER TILT LE ETT ETL 9

II. The Lower Courts Properly Held That the Presumption of

Correctness Was Rebutted by Clear and Convincing Evidence

That Mr. Guidry Requested Requested Counsel During

The Interrogation «oc cceccccdeesverecesevecccocvecccceces 12

Iii, The Court of Appeals Was Correct in Holding That the District

Court had the Authority to Conduct an Evidentiary Hearing

Under the AEDPA and Rule 8 of the Rules Governing Section

SSF CIGD 6 occa eat hae eaee Phe ee Sed voces dusavecdeceseece 16

CONCLUSION oo. cccccdccntvvccvesevecvetassivesccocccccccess 19

il

TABLE OF AUTHORITIES

Cases

Page

Guidry v. Dretke, 397 F.3d 306 (Sth Cir. 2005)...............000 cee passim

Guidry v. Dretke, 2002 LEXIS 27685 (S.D. Texas 2002)............... 17

pier El ¥ Coes, S37 U.S. S22 GAOUS) ow cc cccecenvevcesevccdes 9,11

Taylor. v. Maddox, 366 F.3d 992 (9th Cir. 2004)................0245. 10, 11

Michael Williams v. Taylor, 529 U.S. 420 (2000)...... ern cerewenhade 18

Constitutions, Statutes and Rules

U.S. Const. amend V......... E Ccechkandenseaas WON s Cas whe 4 teen passim

Be en RETOLD i 6 aye bo Kor Riu weeayhaeebsdhdhavons oansa part 12

ye th fee pe Eg ee eR ey eT oe eee re ee ee 18

Rule 8 of the Rules Governing Section 2254 Cases in

Ey Ue CIRININON SN obo cb acer pus v chides duedeéed Cun edes ern 18

Miscellaneous

Antiterrorism and Effective Death Penalty Act of 1996.................. passim

ill

STATEMENT OF THE CASE

I. Facts of the Crime

The panel opinion succinctly summarized the facts relating to the instant offense:

Farah Fratta was murdered on 9 November 1994; her husband, Robert Fratta, had

hired Joseph Prystash to kill her. (Each received the death penalty). During a

custodial interrogation approximately four months after Farah Fratta's murder,

Guidry confessed to shooting Farah Fratta and leaving the scene with Prystash.

At Guidry's trial, his confession, as well as hearsay testimony against Guidry's

interest by Prystash's girlfriend, Mary Gipp, established that, for $1000, Guidry

agreed to help Prystash kill Farah Fratta.

Il. Facts Relating to the Fifth Amendment Claim

There were important events relating to Mr. Guidry's Fifth Amendment claim,

each discussed below: the March 7, 1995 interrogation of Mr. Guidry by the Harris

County Sheriff Department; a March 15, 1995 conversation in a Texas state court judge's

chambers; an August 28, 1996 motion to suppress hearing; a February 20, 1997 motion to

suppress hearing and a December 13, 2002 federal evidentiary hearing.

a. March 7, 1995 interrogation

On March 7, 1995, Mr. Guidry was incarcerated on an unrelated bank robbery

charge. Counsel had been appointed to represent him on this charge.' After receiving a

possible lead regarding the murder of Farah Fratta, Ronnie Roberts and Jim Hoffman,

detectives in the Harris County Sheriff's Department, interviewed Mr. Guidry. Tr. Vol.

24 at 50, 53, 101-02. Mr. Guidry asserts that he requested to speak with his attommey

during this interview. Tr. Vol. 7 at 166, 167. He says that the officers subsequently

informed him that they had spoken with his attorney who gave permission for Mr. Guidry

to speak with the detectives. Tr. Vol. 7 at 171-72. Asa result of this assurance, Mr.

Guidry provided several statements implicating him in the Fratta murder. Tr. Vol. 7 at

' Layton Duer had been appointed to represent Mr. Guidry on the unrelated bank robbery charge

174-75, 187. The detectives denied that Mr. Guidry ever asked during the interview to

speak with counsel. Tr. Vol. 24 at 126.

b. August 28, 1996 hearing

The state court conducted a hearing as a result of Mr. Guidry's motion to suppress

the sian he gave to the detectives during the March 7, 1995 interrogation. At this

hearing Detective Roberts denied that Mr. Guidry requested either to speak with his

attorney or to have him present. Tr. Vol. 3 at 21-22. Detective Roberts did, however,

offer conflicting testimony about whether he was aware that Mr. Guidry was represented

by counsel at the time:

Q: Were you aware of the fact that he, in fact, had an attorney representing

him out of the bank robbery?

A: Somewhere, subsequent in the conversation, I was advised that he did

have an attorney for the aggravated robbery.

Tr. Vol. 3 at 17-18 (emphasis added).

But later in the same hearing, Detective Roberts retreated from his acknowledgement that

Mr. Guidry had counsel:

A: ... 1 don't know if he had an attorney or not. | was, I assumed he, I don't

know, he didn't tell me. I don't know how, whether he had been in jail and

had been appointed an attorney [for the bank robbery charge], I never did

confirm if he had an attorney.

Q: So now you are going back to say you didn't even know he had an

attorney?

A: Just because somebody's lips move doesn't make it a prayer book. I never

did confirm whether there was an attorney or not.

Q: So when he told you he had an attorney, you assumed he was lying right,

so it wasn't a prayer book?

A: I'm not aware of how I was made aware of it, if he had an attorney or not.

Tr. Vol. 3 at 26-27.

The remainder of the testimony at this hearing is summarized by the Fifth

Circuit's panel opinion:

... Gottlieb, a lawyer unaffiliated with the Guidry case, gave the following

testimony about a 15 March 1995 conversation in the chambers of a Texas state

judge (approximately a week after the interrogation/confession.). The judge was

not present; the following persons were: Gottlieb, Guidry's two attorneys for the

murder charge, Scott and Yarborough; Assistant District Attorney Rizzo; and two

Harris County Sheriff's detectives. During this conversation, one of the detectives

remarked that he had been involved in obtaining Guidry's confession for the

investigation of Farah Fratta's murder.

Scott and Yarborough, who had been appointed on or about the very day to

defend Guidry on the murder charge, asked about the circumstances under which

Guidry confessed. Gottlieb testified about the detective's response:

Q: Was there any discussion [by the detectives] about whether or not Howard

Guidry had an attorney?

A: ... [think I said something to the effect that well, you know, he has an

attorney on the aggravated robbery. They said, Yes, we talked to the

attorney and got permission to talk to Guidry before we took him out to

have his statement. . .

[W]e all looked at each other in total and complete amazement... I mean

we were shocked that that would have occurred. That the lawyer gave

them permission to talk to a man being accused of capital murder . . . [that

a] defense attorney would even do that. I mean I specifically remember

elbowing... Yarborough, going, Who is that [lawyer?]

Duer, Guidry’s robbery-charge attorney, also testified at the 1996 hearing.

According to his testimony: he told Guidry not to talk to any officers; he was

never contacted by any detectives or by anyone else; and he never gave anyone

permission to discuss any matter with Guidry.

Guidry v. Dretke, 397 F.3d 306, 313 (Sth Cir. 2005).

Because the detectives contradicted Gottlieb's account of the in-chambers

conversation, Scott and Yarborough realized that they would be required to testify about

the conversation. Id. They therefore moved for a continuance so that they could

withdraw and new counsel could be appointed to represent Mr. Guidry. {d.

c. February 20, 1997 hearing

After Scott and Yarborough withdrew as Mr. Guidry's counsel, a new motion to

suppress hearing was held. Mr. Guidry testified that he had been instructed by Layton

Duer not to "make any statements to anyone for any reason." Tr. Vol. 7 at 155. He

further testified that once questioning commenced, he-asked the police to contact his

attorney so that he could be present during the questioning. Tr. Vol. 7 at 166-67, 170,

188. Detective Hoffman told him "no." Tr. Vol. 7 at 167. The two detectives then left

the room for over an hour. Tr. Vol. 7 at 168. Mr. Guidry testified that after Detective

Hoffman returned and he was presented with Joe Prystash's statement implicating him, he

renewed his request to speak with his attorney. Tr. Vol. 7 at 170. Mr. Guidry testified

that he informed the officers that Layton Duer was his attorney. Tr. Vol. 7 at 171.

According to Mr. Guidry, Detective Hoffman left the room, saying that he was going to

talk to Guidry's attorney. Tr. Vol. 7 at 170-71. Some time later, Detective Hoffman

returned, telling Mr. Guidry that he had talked to his attomey who "said it was all right

for [Guidry] to answer the questions and don't worry about it. Tr. Vol. 7 at 171-72. Mr.

Guidry decided to cooperate with the police when he was told by Detective Hoffman that

his attorney had given him clearance to speak with the police. Tr. Vol. 7 at 175, 187,

191. Mr. Guidry also testified that Detective Hoffman promised him a lenient sentence if

he confessed to being the triggerman. Tr. Vol. 7 at 163-64, 198.

Mr. Guidry's testimony was strongly corroborated by a conversation that occurred

in Judge Joe Kegans' chambers on March 15, 1995. First, Sylvia Yarborough testified

that she was present when attorneys Deborah Gottlieb and Bob Scott, tow Harris County

Shen ff Office detectives and Dan Rizzo, an Assistant Harris County District Attorney,

were all in Judge Kegans’ chambers. Tr. Vol. 7 at 105. Yarborough testified that

Detective Roberts was one of the detectives but she was not sure of the identity of the

other detective. Tr. Vol. 7 at 105. Yarborough testified that she heard Bob Scott ask

Detective Roberts to explain taking Mr. Guidry out and getting a confession from him

when the detective knew he had a lawyer. Tr. Vol. 7 at 107. She testified that Detective

Roberts’ response was that he called and talked to the lawyer and it was okay with the

lawyer to interview Mr. Guidry. Tr. Vol. 7 at 108. Yarborough testified that her initial

impression was shock that any lawyer would give such permission. Tr. Vol. 7 at 108.

= During cross-examination, she testified that she was positive that it was Detective

Roberts who made the remark. Tr. Vol. 7 at 119. Yarborough testified that Detective

Roberts didn't sound sarcastic but rather he sounded like he had been caught off-guard.

Tr. Vol. 7 at 115-16.

Another lawyer, Deborah Gottlieb, testified that she overheard an in-chambers

conversation between Bob Scott and two officers on March 15, 1995. Tr. Vol. 7 at 132.

She testified that she heard one of the officers say that he had contacted Mr. Guidry’s

lawyer and had gotten permission to talk to him. Tr. Vol. 7 at 132. Gottlieb testified that

she didn't know the name of the officer and that she thought it was the shorter officer who

made the remark, but that she was not sure of that. Tr. Vol. 7 at 132.

Robert Scoit testified that he was present during the in-chambers conversation on

March 15, 1995, along with Sylvia Yarborough, Deborah Gottlieb, Dan Rizzo and a

couple of Harris County Sheriff Office detectives when one of the officers mentioned

taking Mr. Guidry's confession. Tr. Vol. 7 at 140. Scott testified that he reacted by

asking the officer why he took the statement when Mr. Guidry had a lawyer at the time.

Tr. Vol. 7 at 141. Scott testified that the officer's response was that they knew Mr.

Guidry had a lawyer when they took the statement but that they checked with the lawyer

and had gotten permission to talk with Mr. Guidry. Tr. Vol. 7 at 140. Scott testified that

his initial reaction was to be upset with the lawyer for giving such permission. Tr. Vol. 7

at 142. Scott identified Detective Roberts as the officer who made the remark. Tr. Vol. 7

at 146, 149.

Mr. Guidry was further corroborated by the testimony of Layton Duer, his

robbery-charge attorney. Duer testified that he did not receive a call from anyone from

the Harris County Sheriff's Office seeking his permission to speak with Mr. Guidry. Tr.

Vol. 7 at 124. Duer also testified that he specifically told Mr. Guidry not to speak with

anyone about any cases unless he was present and that if any officers came to get a

statement from him to tell them he had a lawyer and have the officer call Duer. Tr. Vol.

7 at 123.

Detective Roberts was asked "Do you recall a conversation in Judge Keegan's

chambers where some defense attorneys representing Howard Guidry were present?" to

which he responded, "No, sir, [ don not." Tr. Vol. 7 at 203. He also gave the following

testimony regarding his knowledge of whether Mr. Guidry was represented by counsel at

the time of the interrogation:

Q: tor the record, today, tell us what you knew about who Howard Guidry's

attorney was or what information you had at the time the conversation

took place between you and him on March the 7, 1995?

A: I had no knowledge that he had an attorney.

Q: At any time during your conversation with... Mr. Guidry, either by

Detective Hoffman or anybody else in the interview room that date on

March 7, 1995, did you learn that Howard Guidry did, in fact, have an

attorney on the Klein Bank Robbery?

A: No, sir.

Later in the hearing, Detective Roberts contradicted this testimony:

Q: Did [Guidry] ever tell you he had an attorney?

A: Yes, sir.

Tr. Vol. 7 at 31.

d. Federal Evidentiary Hearing

On December 13, 2002, a federal evidentiary hearing was held in the Southern

District of Texas. At this hearing, Mr. Guidry reiterated that he invoked his right to

counsel prior to providing a statement to the Harris County detectives. (Evidentiary

Hearing transcript, hereinafter "EH" at 17). Mr. Guidry also reiterated his earlier

testimony that after he invoked his right to counsel, Detective Hoffman returned after a

while and announced that he had contacted Mr. Guidry's attorney and that his attorney

had indicated that he should speak with the detectives. EH at 18. Furthermore, the

attorney witnesses reiterated their testimony that, when confronted, Detective Roberts

indicated that they had contacted Mr. Guidry's robbery-charge attorney who gave them

permission to speak with Mr. Guidry. EH at 39, 46, 58. Finally, Layton Duer testified

that he gave Mr. Guidry his busi: ess card with instructions not to speak with anyone lese.

EH at 12. Duer further testified that he was never contacted by anyone seeking

permission to speak with Mr. Guidry. EH at 12.

Detective Roberts retracted his earlier denial regarding the in-chambers

conversation and admitted that the conversation did in fact occur and that he was present

but that he had no recollection of the nature of the conversation that took place. EH at

67. He also testified that he contacted a Harris Cointy Assistant District Attomey

because "I knew he had been in jail for several days; and usually after a suspect has been

in jail for two or three days, an attorney is appointed to them in most cases." EH at 68.

SUMMARY OF THE ARGUMENT

The Fifth Circuit's decision affirming the district court's grant of federal habeas

relief is in accord with decisions of both this Court and other federal courts of appeals.

Because the state court failed to consider evidence crucial to Mr. Guidry's claim that his

confession was illegally obtained, its findings were not entitled to a presumption of

correctness. Mr. Guidry offered other evidence that the state court's findings were not

entitled to any presumption of correctness, including the inconsistent and contradictory

testimony of the officers and statements by the state trial judge on the record. The state

court's ultimate finding, that the confession was voluntarily obtained, was based,

therefore, on an unreasonable determination of the facts and the district court was correct

in gation liad The Fifth Circuit properly upheld the district court's grant of habeas

relief.

Furthermore, the Fifth Circuit properly found that, under the AEDPA and Rule 8

of the Rules Governing Section 2254 Cases in the United State District Courts, the

federal habeas court was not precluded from granting an evidentiary hearing and did not

abuse its discretion.

The Court of Appeals decision was consistent with decisions of this and other

federal courts and with the AEDPA and thus there is no need for this court to consider

this matter further by granting certiorari.

ARGUMENT

I. The Court of Appeals' Holding That the State Court's Fact-Finding Was

Defective Because it Ignored or Overlooked Highly Probative Testimony

Central to Mr. Guidry's Claim is Consistent With Decisions of This Court

and Other Courts of Appeal.

Although the Anti-Terrorism and Effective Death Penalty Act (hereinafter

"AEDPA") mandates substantial deference for state court determinations of fact, the

Supreme Court has made it clear that:

deference does not imply abandonment or abdication of judicial review.

Deference does not by definition preclude relief. A federal court can disagree

with a state court's credibility determination and, when guided by AEDPA,

conclude the decision was unreasonable or that the factual premise was incorrect

by clear and convincing evidence.

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

In the case at bar, four attorneys testified during the motion to suppress hearing in

state court. Their testimony substantially corroborated Mr. Guidry's assertion that he

requested to speak with his attorney, who had been appointed to represent him on an

unrelated charge, during the Harris County detectives’ iadenoabon of him and that these

detectives falsely informed him that the attorney had authorized Mr. Guidry's cooperation

without his attorney being present. The trial judge’s only comment regarding this

testimony was that “/'m perfectly satisfied that the - that the Scott, Gottlieb, Yarborough

conversation, while the author of the comment may very well be up in the air, the

substance of the comment is not." Tr. Vol. 24 at 234-35. In its findings and conclusions,

the trial court found Mr. Guidry was not credible but the detectives were. See Guidry v.

Dretke, 397 F.3d 306, 325 (Sth Cir. 2005). Despite the unusual occurrence of four

members of the bar testifying in his court on behalf of a suspect charged with capital

murder, the trial court made no mention of this testimony in its ultimate findings and

never attempted to reconcile the ahove quoted statement with these findings. Based on

the state court record, it is not possible to fairly infer from the state record that the trial

judge found the four attorneys not to be credible given the above quoted statement and

other actions on the part of the trial judge.’ The only rational inference that can

reasonably be drawn from the trial judge's comments regarding the attorney's testimony is

that the detectives were not credible and that Mr. Guidry, whose testimony was

corroborated by the attorneys, was credible.

The federal habeas court found that, under these circumstances, the state court's

adjudication of the claim was based on an unreasonable determination of the facts and the

Court of Appeals agreed. See Guidry v. Dretke, 397 F.3d 306, 329 (Sth Cir. 2005). The

Court of Appeals’ holding that a state court's failure to make findings on critical evidence

negates the § 2254(e)(1) presumption of correctness and causes the fact finding to be

unreasonable is consistent with the holdings of this Court and with other circuits. In

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) the circumstances were strikingly similar

to the case at bar: Defendant was questioned during a murder investigation without the

presence of an attorney to advise him during questioning. Id. at 997. He subsequently

inculpated himself. Id. at 997. At his motion to suppress hearing, defendant testified that

he repeatedly asked for a lawyer prior to confessing and that his request was denied. Id.

at 998. The detective denied defendant's allegations. Id. at 998. An attorney also

testified that he received a telephone call from defendant shortly after he had given his

confession. Id. at 1005. The attorney testified that defendant informed him of the details

~ For mstance, when one of the attorneys testified, the trial pudge asked counsel for both sides if they

waived her being sworn, noting that, although she had “not [been] a long time member of the bar", she was

“experienced.” After counsel agreed to the waiver, the trial court stated “Ms Gottlheb, we trust you ”

CGiuidry v. Dretke, 397 F 3d 306, 314 (Sth @ir. 2005)

10

of the interrogation, including his request for counsel, therefore strongly corroborating

defendant's testimony. Id. at 1005. Neither the state trial court nor the state appellate

court even acknowledged the attorney's testimony. Id. at 1005. The Ninth Circuit held

that a rational fact-finder might have discounted this testimony or found it incredible "but

no rational fact-finder would simply ignore it. Yet this is precisely what the state courts

did..." Id. at 1006. The Ninth Circuit held that "by making their findings without

taking [the attorney's} testimony into account, the state courts made an ‘unreasonable

determination of the facts." Id. at 1008. "The state courts might have disbelieved [the

attorney witness] or perhaps discounted his testimony, but they were not entitled to act as

if it didn't exist." Id. at 1008. This Court has also clearly stated that the state-court fact-

finding process is undermined where the state court has before it, yet apparently ignores,

evidence that supports petitioner's claim. See Miller-El v. Cockrell, 537 U.S. 322, 346

(2003) ("our concerns are amplified by the fact that the state court also had before it and

apparently ignored, testimony demonstrating that the Dallas County District Attorney's

Office had, by its own admission, used this process to manipulate the racial composition

of the jury in the past.").

All courts deciding this issue are in agreement that state court findings which

ignore or overlook crucial evidence are not entitled to a presumption of correctness and

are unreasonable. Guidry v. Dretke, 397 F.3d 306, 329 (Sth Cir. 2005); Taylor v.

Maddox, 366 F.3d 992 (9th Cir. 2004); Miller-El v. Cockrell, 537 U.S. 322, 346 (2003).

Because there is a uniform rule of federal law, there is no need for this court to grant

appellant's petition for wrt of certiorari.

II. The Lower Courts Properly Held That the Presumption of Correctness Was

Rebutted by Clear and Convincing That Mr. Guidry Requested Counsel

During the Interrogation.

As discussed earlier, the courts have held that the 2254(e)(1) presumption of

correctness accorded to state court findings of fact is overcome by a state court's failure

to consider crucial evidence. Every federal court that has reviewed this case has found

that Mr. Guidry met his burden of proof in overcoming the presumption of correctness.

The lower courts found that Mr. Guidry overcame the presumption of correctness with

the following evidence:

a. Mr. Guidry's testimony - Mr. Guidry testified that his robbery-charge attorney

instructed him not to discuss anything with anyone (including officers and other

prisoners). Tr. Vol. 7 at 155. Mr. Guidry further testified that after Detectives Roberts

and Hoffman confronted him with pictures of Farah Fratta's body he became frightened

and as a result he réquested to speak with his attorney. Tr. Vol. 7 at 166-67. Mr. Guidry

further testified that the detectives left him alone for around one and a half hours before

Detective Hoffman returned, saying that he had a statement from Prytash implicating Mr.

Guidry. Tr. Vol. 7 at 170. The detective then gave the statement to Mr. Guidry to read

and claimed he had other evidence as well but that they would work out a deal if Mr.

Guidry cooperated. Tr. Vol. 7 at 185, 187. Mr. Guidry further testified:

... Lasked [Detective Hoffman] again, I - really didn't ask him, I kind of

demanded that | speak to my lawyer that second time, because I was - I was really

getting scared after the second time...

Arid when | told him that, he told me he was going to contact my attorney. At

that point in time, he picked up the statement and he left. . . the room.

Tr. Vol. 7 at 170.

Guidry testified that Detective Hoffman:

12

... asked me before he left. . . the room - when | asked him for my attomey the

second time, he asked me who my lawyer was. And I told him Mr. Layton Duer.

And he said: 'I'm going to contact your attorney and we're going to see what he

says, right.’ And he stayed in the room maybe a minute getting paperwork

together, and he left. . . the room.

Tr. Vol. 7 at 171.

According to Mr. Guidry, after some time passed, Detectives Roberts and Hoffman

returned, saying they had contacted Mr. Guidry's attorney:

Detective Hoffman . . . told me he had contacted my attorney.

He told me my attorney said it was all nght for me to answer the question, and

don't worry about it, you know, it was no problem.

Tr. Vol. 7 at 171-72.

As a result of this exchange, and in reliance on the alleged conveyed authorization from

his attorney, Mr. Guidry inculpated himself. Tr. Vol. 7 at 175.

b. The testimony of the four attorney witnesses - Mr. Guidry's version of the events

preceding his confession was corroborated by the consistent testimony of four members

of the bar. Deborah Gottlieb, a lawyer unaffiliated with the case, testified that she was

present on March 15, 1995 in the chambers of a Texas state judge (approximately a week

after the interrogation/confession). Tr. Vol. 7 at 132. The judge was not present; the

following persons were present: Gottlieb, Mr.Guidry's two court-appointed attomeys for

the murder charge, Robert Scott and Sylvia Yarborough; Assistant Distnct Attomey

Rizzo; and two Harris County Sheriff's detectives. Tr. Vol. 7 at 132. Gottlieb testified

that the officers were questioned about the circumstances under which Mr. Guidry

confessed. Tr. Vol. 7 at 132. The detectives indicated that they had spoken to Mr.

Guidry's robbery-charge attorney and that he had given them permission to talk to Mr.

Guidry concerning the Fratta murder. Tr. Vol. 7 at 132. According to Gottlieb:

And at that point, Sylvia and | elbowed each other - Ms. Yarborough and I

elbowed each other, looking and rolled our eyes going: What idiot was that,

meaning, why would a defense attorney do that?

Tr. Vol. 7 at 132.

Yarborough testified that on March 15, 1995, she was present in the judge's

chambers during the in-chambers conversation with the detectives who, when asked

about interrogating Mr. Guidry without his attorney being present, Detective Roberts

responded: "I talked to his lawyer, and his lawyer said it was okay to talk to him.” Tr.

Vol. 7 at 108. Yarborough testified that she was absolutely sure this is what Detective

Roberts said and that she thought he was serious. Tr. Vol. 7 at 115-16.

Robert Scott testified that after the detectives were queried about interrogating

Mr. Guidry without his attorney's present:

The response was that they knew [Guidry] had an attorney at the time they took

the statement, but they had checked with that attorney and got permission to go

ahead and talk to Howard Guidry.

Q. Now, just so that the record is clear. Did the officer indicate to you that he

talked with the attorney on the aggravated robbery case and got

permission to take the confession in the capital case?

A. Yes, sir. He said that he knew [Guidry] had an attorney - referring to the

other attorney - ang? that. . . they had called and gotten permission from

that attorney to talk. to Mr. Guidry before they took the statement in the

capital murder case

Tr. Vol. 7 at 141-42.

Finally, Layton Duer, Mr. Guidry's robbery-charge attorney, testified that he gave

Mr. Guidry his business card with instructions not to speak with anyone else. Tr. Vol. 7

at 123. Duer also testified that no one ever contacted him seeking permission to speak

with Mr. Guidry. Tr. Vol. 7 at 123.

c. The detectives’ inconsistent and contradictory testimony - The detectives testified

inconsistently on two key points: |) the March 15, 1995 in-chambers conversation and 2)

their knowledge that Mr. Guidry was represented by counsel.

Regarding the March 15, 1995 in-chambers conversation, Detective Roberts was

asked at the February 20, 1997 suppression hearing ". . . Do you recall ever having a

conversation in Judge Keegan's chambers where some defense attorneys representing

Howard Guidry were present?” to which he responded, "No, sir 1 do not.” Tr. Vol. 7 at

203. Seven years later, however, he testified that he did recall the in-chambers

conversation although he has no recollection of the nature of the conversation that took

place. EH at 67.

The detectives also gave inconsistent testimony when asked if they knew that Mr.

Guidry had an attorney when they interrogated him. At the first pre-tnal hearing,

Detective Roberts offered conflicting testimony about knowledge of Mr. Guidry's

representation. He initially testified that "somewhere, subsequent in the conversation, I

was advised that he did have an attorney for the aggravated robbery.” Tr. Vol. 3 at 17-18.

But later in the same hearing he retreated from his earlier unambiguous statement

testifying that "I don't know if he had an attorney or not.” Tr. Vol. 3 at 26-27. Then at

the second pre-trial hearing, Detective Roberts testified "I had no knowledge that he had

an attomey.” Tr. Vol. 7 at 12-13. During the same hearing, he was asked "Did {Guidry}

ever tell you he had an attorney?” to which he replied, "Yes, sir." Tr. Vol. 7 at 31. At the

federal evidentiary hearing, Detective Roberts testified that he had contacted an attorney -

Assistant District Attomey Ted Wilson - to ask if he could question Mr. Guidry about the

murder, because he knew that, based on Mr. Guidry's having been in jail several days on

another charge, he probably had an attorney. EH at 68. Furthermore, Detective

Billingsley testified at the motion to suppress hearing that he was "sure [he] knew that"

Mr. Guidry had an attomey. Tr. Vol. 3 at 73.

Mr. Guidry’s testimony, the corroboration of his testimony by the consistent testimony of

the four attorney witnesses, the trial judge's failure to make any findings or other wise

attempt to reconcile this testimony with its findings and the inconsistent and conflicting

testimony of the detectives regarding the March 15, 1995 in-chambers conversation and

whether they were aware that he had an attorney was clear and convincing evidence that

the state court's findings that Mr. Guidry did not ask to speak with his robbery-charge

attorney and that Mr. Guidry was not told by the detectives that his robbery-charge

attorney had given him permission to speak with them were not entitled to any

presumption of correctness. Thus, the lower courts were correct in concluding that the

state court's decision that Mr. Guidry's confession was voluntarily obtained was based on

an unreasonable determination of the facts.

lil. The Court of Appeals Was Correct in Holding That the District Court had

the Authority to Conduct an Evidentiary Hearing Under the AEDPA and

Rule 8 of the Rules Governing Section 2254 Cases.

The State made no objection to the evidentiary hearing before the federal habeas

court and thus the court was never afforded an opportunity to rule on the State's

objection. See Guidry v. Dretke, 397 F.3d 306, 319 (Sth Cir. 2005) ("In neither instance

did the State object to an evidentiary hearing; it certainly did nos present the narrow

hearing-is prohibited issue it raises now.").

In making an objection for the first time before the Fifth Circuit and this Court,

the State has mischaracterized the federal habeas court's reasons for granting an

evidentiary hearing. In an order denying Respondent's motion for summary judgment,

the court clearly set forth its reasons for granting an evidentiary hearing in this case:

Having extensively reviewed the facts of this case, this Court is unable to grant

Respondent's summary judgment motion at this time. Substantial factual

questions persist surrounding Guidry's confessions. The state courts made no

attempt to evaluate the veracity of the attorney testimony or analyze its

implication in this case. The state courts made no finding with respect to the

inconsistent and contradictory testimony by the police officers, If the allegations

in Guidry's petition, as corroborated by the attorneys’ testimony, are true, the

reasonableness of the state court decision is suspect. For this Court to fully

evaluate the circumstances surrounding this claim, further factual development is

appropriate. Factual development would aid this Court in determining whether

clear and convincing evidence rebuts the trial finding that Guidry did not request

counsel. Also, the factual development would clarify the ultimate question of the

reasonableness of the state court's determination.

Guidry v. Dretke, 2002 U.S. Dist. LEXIS 27685 at 22-23 (S.D. Texas 2002) (Appendix 1)

Although the same witnesses testified at the evidentiary hearing, the State is not

accurate in stating that the federal habeas court heard the same evidence presented in

state court. In fact, important new evidence was extracted from the State’s witness:

For example, Detective Roberts testified at the district court hearing that: prior to

questioning Guidry on 7 March 1995, he contacted an assistant distnct attorney to

ensure there would be no conflict in his doing so because Detective Roberts knew

that, for persons in Guidry's circumstances (in jail for several days on another

charge (bank robbery)), ‘usually . . . an attorney is appointed [for] them";

nevertheless, for the 7 March interrogation of Guidry, he did not know Guidry

had an attorney. As another example, Detective Roberts did recall the 15 March

1995 in-chamber: conversation

Guidry v. Dretke, 397 F.3d 306, 320-21 (Sth Cir. 2005). This evidence was useful in

sorting out the participants in the March 15, 1995 in-chambers conversation and in

determining the reasonableness of the state courts’ fact-finding process.

17

28 U.S.C. § 2254(e)(2) provides that a district court may not hold an evidentiary

hearing ‘[i]f the applicant failed to develop the factual basis of a claim in State court

proceedings..." [A] failure to develop the factual basis of a claim is not established

unless there is a lack of diligence..." Michael Williams v. Taylor, 529 U.S. 420, 430-32

(2000). “Diligence . . . depends upon whether the prisoner made a reasonable attempt. in

light of the information available at the time, to investigate and pursue claims in state

court..." Id. at 435

As the Court of Appeals indicated, there clearly was no lack of diligence on Mr.

Guidry’'s part in presenting the factual basis of his claim in state court. Mr. Guidry

moved to suppress his confession and a hearing was held during which he presented the

testimony of 4 witnesses besides his own testimony. Furthermore, Mr. Guidry presented

the claim in. his state habeas petition. Thus, no reasonable argument can be made that the

statute precluded the federal habeas court from condu ting an evidentiary hearing.

Because it was not precluded by the AEDPA , the federal habeas court had

discretion under Rule 8 of the Rules Governing Section 2254 Cases in United States

District Courts. The version of Rule 8 in effect when the hearing was granted provided:

If the petition is not dismissed at a previous stage in the proceeding, the judge,

after the answer and the transcript and record of state court proceedings are filed,

shall, upon a review of those proceedings and of th expanded record, if any,

determine whether an evidentiary hearing is required. \f it appears that an

evidentiary hearing is not required, the judge shall make such disposition of the

petition as justice shall require.

An evidentiary hearing was needed in the case because of the deficiencies in the

state court's fact-finding process. The federal habeas court had the authority under both

the AEDPA ard Rule 8 to conduct a hearing and the court did not abuse its discretion in

doing so.

CONCLUSION

Even the Dissent to the Denial of the Petition for Rehearing En Banc concedes

that "the panel majority's result may be justifiable .. .". Guidry v. Dretke, 2005 U.S. App.

LEXIS 23000 at 35 (Sth Cir. 2005). Because the state court completely ignored the

testimony of 4 attorney-witnesses, its finding that Mr. Guidry's confession was

voluntarily obtained was based on an unreasonable determination of the facts and had to

be reversed. The Fifth Circuit's decision is consistent with the decisions of this court and

other circuits and as a result there is no need for any further consideration of this matter

by granting certiorari.

Respectfully submitted,

[/ Vii Y if :

LAY. AW ame

enneth A. Williams

Southwestern University Schoo! of Law

675 S. Westmoreland Ave.

Los Angeles, CA 90005

Tel: (213)738-6806

Fax: (213)738-6698

Robert M. Rosenberg

1309 N.E. 23rd St., Unit A

Wilton Manors, Fl 33305

Tel: (832)816-2955

Fax: (954)565-2605

ATTORNEYS FOR HOWARD PAUL GUIDRY

19

LEXSEE

HOWARD PAUL GUIDRY, Petitioner, v. JANIE COCKRELL, Director, Institu-

tional Division, Texas Department of Criminal Justice, Respondent.

CIVIL NO. H-01-CV-4140

UNITED STATES DISTRICT COUR® FOR THE SOUTHERN DISTRICT OF

TEXAS, HOUSTON DIVISION

2002 U.S. Dist. LEXIS 27685

September 10, 2002, Decided

SUBSEQUENT HISTORY: Writ of habeas corpus

granted, Summary judgment granted, in part, summary

judgment denied, in part by Guidry v. Dretke, 2003 US

Dist. LEXIS 26199 (S.D. Tex., Sept. 25, 2003)

PRIOR HISTORY: Guidry v. State, 9 S W 3d 133, 1999

Tex. Crim. App. LEXIS 145 (Tex. Crim. App., 1999)

DISPOSITION: Respondent's Motion for Summary

Judgment denied.

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioner inmate filed a

petition for a writ of habeas corpus. The inmate claimed,

inter alia, that the trial court failed to dismiss an objec-

tionable juror for cause and that the police secured his

confession in a manner which violated the Fifth

Amendment's privilege against self-incrimination Re-

spondent warden moved for summary judgment and ar-

gued that the operation of federal law precluded habeas

corpus relief.

OVERVIEW: The inmate contended that the tal

court's determination that he did not invoke his mght to

counsel was unreasonable in light of the conflicting tes-

timony. Also, the inmate pointed to inconsistencies in the

police testimony that would indicate their awareness that

he was represented by counsel during the interrogation

In sum, the inmate contended that the state court's in-

complete determination was an unreasonable application

of federal law. The court found that the warden was not

entitled to summary judgment on the inmate's habeas

petition because substantial factual questions regarding

whether the police secured the inmate's confession m a

manner which violated the Fifth Amendment's privilege

against self-incrimination persisted, and if the alleggtions

in the inmate's petition, as corroborated by the attorneys’

testimony, were true, the reasonableness of the state

court decision was suspect. Because factual development

would aid the court in determining whether or not the

State court's rejection of the inmate's claim was reason-

able under 28 USCS § 2254(d), the court intended to

conduct an evidentiary hearing to determine if the inmate

invoked his nght to counsel.

OUTCOME: The warden’s motion for summary judg-

ment was denied

LexisNexis(R) Headnotes

Criminal Law & Procedure > Habeas Corpus > Cogni-

table Issues

(HN1] See 28 USCS. § 2254(d)

Criminal Law & Procedure » Habeas Corpus > Cogni-

table Issues

[HN2] Legal issues of mixed questions of law and fact

are evaluated under 28 USCS § 2254(d)(1). A state-

court decision is contrary to United States Supreme

Court precedent if. (1) the state court's conclusion 1s op-

posite to that reached by the Supreme Court on a ques-

tion of law, or (2) the state court confronts facts that are

materially indistinguishable from a relevant Supreme

Court precedent and arnves at an opposite result

Criminal Law & Procedure > Habeas Corpus > Cogni-

table Issues

[HIN3] A state court may unreasonably apply federal law

if st sdentifies the correct legal rule from United States

Supreme Court cases but unreasonably applies it to the

particular facts of the particular state prisoner's case or if

the state court either unreasonably extends a legal princ:

ple from Supreme Court precedent to a new context

where it should not apply or unreasonably refuses to ex

tend that principle to a new context where it should ap-

2002 U.S. Dist. LEXIS 27685, *

ply. To be unreasonable, the state court application of

federal law must be something more than merely errone-

ous. To provide relief, a federal habeas court must not

only conclude that the relevant state-court decision ap-

plied clearly established federal law erroneously or in-

correctly. Rather, that application must also be unreason-

able.

Civil Procedure > Summary Judgment > Summary

Judgment Standard

Criminal Law & Procedure > Habeas Corpus > Stan-

dards of Review

{HN4] When reviewing summary judgment on a petition

for habeas corpus, consistent with the provisions of 28

USCS. § 2254d), a federal court presumes all state

court findings of fact to be correct in the absence of clear

and convincing evidence.

Criminal Law & Procedure > Interrogation > Miranda

Rights > Right to Counsel During Questioning

Criminal Law & Procedure > Interrogation > Miranda

Rights > Right to Remain Silent

[HNS] In Miranda, the United States Supreme Court held

that certain warnings must be given before a suspect's

statement made during custodial interrogation could be

admitted in evidence. Under Miranda, a person must be

advised of the nght to remain silent and the right to have

an attorney present.

Criminal Law & Procedure > Counsel > Right to

Counsel

Criminal Law & Procedure > Interrogation > Miranda

Rights > Right to Counsel During Questioning

Crimincl Law & Procedure > Interrogation > Miranda

Rights > Right to Remain Silent

[HN6] The United States Supreme Court has held that,

once a suspect in custody mvokes the Fifth Amendment

right to counsel, the police may not interrogate the sus-

pect in the absence of counsel, even if the suspect later

attempts to waive that night. Under the Court's holding,

any statement made by the suspect in resporse to police-

imtiated questioning after an invocation of the mght to

counsel violates the Fifth Amendment and must be ex-

cluded The Court's ngid prophylactic rule embodies two

distinct inquiries. First, courts must determine whether

the accused actually invoked his mght to counsel Sec-

ond, if the accused invoked his mght to counsel, courts

may admut his responses to further questioning only on

finding that he: (a) untiated further discussions with the

police, and (b) knowingly and intelligently waived the

right he had invoked

Criminal Law & Procedure > Habeas Corpus > Stan-

dards of Review

[HN7] State factual findings are entitled to a presump-

tion of correctness under 28 U.S.C.S. § 2254(e)(1).

Criminal Law & Procedure > Habeas Corpus > Fviden-

tiary Hearings

{[HN8] When a district court elects, in instances not

barred by 28 USCS. § 2254e)(2), to hold an eviden-

tiary hearing, the hearing may assist the district court in

ascertaining whether the state court reached an unreason-

able determination under either 28 USCS. § 225441)

or (2).

COUNSEL: [*1] For Howard Paul Guidry, Petitioner:

Pro se, Livingston, TX; Kenneth Anthony Williams,

Gonzaga Univ Schol of Law, Spokane, WA; Robert M

Rosenberg, Attorney at Law, Wilton Manors, FL.

For Douglas Dretke, Respondent: Tina Joann Dettmer,

Attorney General Office, Austin, TX.

JUDGES: VANESSA D. GILMORE, UNITED

STATES DISTRICT JUDGE

OPINIONBY: VANESSA D. GILMORE

OPINION:

ORDER

Pending before the Court is Howard Paul Guidry's

("Guidry") Petition for Wnt of Habeas Corpus. (Instru-

ment No. 6). Respondent Janie Cockrell ("Respondent")

filed a motion for summary judgment arguing that the

operation of federal law precludes habeas corpus relief

on the claims presented in Guidry's petition. (Instrument

No. 9). In his federal petition for habeas relief, Guidry

raises four claims: (1) the admission of hearsay testi-

mony at trial violated the Confrontation Clause; (2) the

State engaged in misconduct by informung the jury that a

co-conspirator received a death sentence; (3) the trial

court failed to dismiss an objectionable juror for cause;

and (4) the police secured his confession m a manner

which violated the Fifth Amendment's privilege against

self-incrimination. Having considered the parties’ sub-

rmssions, [*2] the operation of applicable federal law --

particularly the application of the Anti-Terrorsm and

Effective Death Penalty Act ("AEDPA"), and the state

court record, the Court concludes that Respondent 1s not

entitled to summary judgment at this point in the pro-

ceedings. For the purposes of judicial economy, the

Court will only consider Guidry's final ground for relief

at this time. ni

nl If the Court were to grant federal relief on

Guidry's Fifth Amendment claim, the result would

Page 3

2002 U.S. Dist. LEXIS 27685, *

be the vacating of his conviction and sentence,

thus mooting his other claims. Also, the resolu-

tion of his hearsay claim depends, in part, on the

outcome of his Fifih Amendment claim. On direct

review the Court of Criminal Appeals avoided the

question of whether a witness’ testimony contain-

ing hearsay statements by a coconspirator vio-

lated Guidry's rights by finding their admission to

be harmless. See Guidry v. State, 9 SW 3d 133,

147-52 (Tex. Crim. App. 1999), cert. denied, 531

U.S. 837, 148 L. Ed. 2d 57, 121 S. Ct. 98 (2000).

The Court of Criminal Appeals partially based its

harmlessness determination on the admission of

Guidry's confessions. However, the only trial tes-

timony supporting the charge as spelled out in the

indictment (capital murder for remuneration)

came from the hearsay testimony and the confes-

sion. Any harmless error inquiry with respect to

the hearsay testimony, therefore, is dependant on

the validity of the confession. Judicial economy

suggests that the Court address the Fifth Amend-

ment claim before the others. The Court would

note, however, that it appears that an evidentiary

hearing is not required to resolve the other three

claims.

(*3)

I. Background

The State of Texas convicted and sentenced Guidry

to death for the murder-for-hire of Farah Fratta. Trial

testimony demonstrated that Guidry agreed to kill Ms

Fratta for one-thousand dollars. At tral, the State pre-

sented two written statements by Guidry and a video-

taped walk-through of the crime scene. In the instant

federal proceedings, Guidry claims that the police se-

cured his confessions without regard to his invocation of

his mght to counsel.

Before trial, Guidry sought to suppress his incrim-

nating statements. On August 28, 1996, the trial court

originally held a hearing concerning Guidry's motion to

suppress. Tr. Vol. 3 at 8-103. When it became apparent

that Guidry'’s counsel (Sylvia Yarborough and Robert

Scott) would need to testify in his behalf, the trial court

granted a continuance. Tr. Vol. 5 at 19

After the appointment of new counsel, the tial court

held a hearing on February 20, 1997, in which the parties

presented evidence relating to Guidry's confession n2

The State presented evidence from Ronnie Roberts, Jim

Hoffman, and Danny Billingsly, the three Harms County

Sheriff Department officers mvolved in taking Guidry’s

confession. The [*4] testirnony established that Guidry

was incarcerated on an unrelated aggravated robbery

charge in early March 1995. Appointed counsel (Layton

Duer) represented Guidry in that action. In Guidry's Feb-

ruary 20 hearing, each police officer testified that they

did not know that an attorney represented Guidry in his

aggrav. ‘ed robbery case. Tr. Vol. 7 at 12-13, 77, 99. n3

Detective Roberts later admitted that Guidry told him

that he had an attorney, but Guidry never indicated that

he wanted to speak with counsel. Tr. Vol. 7 at 31-32.

n2 Loretta Johnson Muldrow and Alvin

Nunnery represented Guidry at the February 20

hearing and at trial.

n3 This testimony conflicted with Detective

Roberts earlier testimony that “some time during

the time that [they] talked to (Guidry],” the offi-

cers became aware of the fact that he was repre-

sented by counsel. Tr. Vol. 3 at 17-26. In the Au-

gust 28 hearing, Sergeant Billingsly also testified

that he was “sure [he] knew that" Guidry was rep-

resented by counsel. Tr. Vol. 3 at 73. The officers

testified that Guidry did not invoke his nght to

counsel, yet the did not explain how they came to

find out about his representation during the inter-

rogation.

(°5}

The officers explained how they transferrea Guidry

from the Harris County jail to the homicide office for the

purpose of interviewing him about the Fratta murder.

While traveling to (he homicide office, the officers testi-

fied that they gave Guidry the Miranda warnings, but

they did not interview him in the car. Tr. Vol. 7 at 20,

42-43, 71.

At the police station, the police confronted Guidry

with certain facts about the murder. Tr. Vol. 7 at 47, 67

According to the officers’ account, Guidry then admitted

some involvement in the murder, but claimed only to be

the get-away driver. Tr. Vol. 7 at 74. n4 The police again

informed Guidry of his nghts. Tr. Vol. 7 at 48. The po-

lice typed a statement which Guidry then signed. Guidry

also initialed the form's recital of his constitutional

rights. Specifically, Guidry acknowledged his nght to

have counsel present and right to end the interview at

any time. The State introduced this written confession at

trial as State’s Exhibit 73. n5

n4 At the February 20 hearing, Detective

Roberts testified that they did not question

Guidry concerning the aggravated robbery case

Tr. Vol. 7 at 23. Detective Roberts, however, ad-

rmutted that he testified otherwise at the August 28

hearing. Compare Tr. Vol. 3 at 17 with Tr. Vol. 7

Page 4

2002 U.S. Dist. LEXIS 27685, *

at 23. Defense counsel cross-examined Detective

Roberts extensively about this conflicting testi-

mony. Tr. Vol. 7 at 22-33.

(*6]

nS The original written confession contained

the wrong date. State's Exhibit 73. The officers

had Guidry change the date on a copy of the

statement. The State introduced the corrected

Statement as State's Exhibit 73-A. Tr. Vol. 7 at

53-54.

Aware that the written statement conflicted with

other information known to the officers, they asked

Guidry to consent to a polygraph examination. Tr. Vo’. 7

at 55. Guidry failed the polygraph test. After the officers

confronted Guidry with the test results, he agreed ts give

a second statement. Tr. Vol. 7 at 57, 76. The police again

informed Guidry of his rights. Guidry then gave a second

confession, admitting that he shot Ms. Fratta. Guidry also

claimed that Joseph Prystash offered him a thousand

dollars to be the gunman. Guidry again initialed on the

statement that he had been informed of his rights. The

State introduced the second confession at trial as State's

Exhibit 74.

After Guidry signed the second confession, the po-

lice asked him if he would be w' ‘ling to participate in a

walk-through of the crime scene. At the crime scene, the

police again read [*7) Guidry his rights. The police

videotaped Guidry as he described how he killed Ms.

Fratta. The State introduced the videotape at trial as

State's Exhibit 156.

The defense also presented testimony during the

suppression hearing. Guidry now relies on the same evi-

dence to challenge the introduction of his confession.

During the hearing, Guidry himself testified. Guidry

claimed that, when the police transported him to the_

homicide office, they did not read him his rights. Tr. Vol.

7 at 188. When they arrived at the homicide office,

Guidry and Detective Hoffman were left alone in an in-

terview room. Detective Hoffman began questioning him

about his participation in bank robberies. Tr. Vol. 7 at

163-65. When Detective Roberts entered the room, he

started showing Guidry photographs of Ms. Fratta’s

corpse. Tr. Vol. 7 at 166. Guidry then asked to speak to

his attorney. Tr. Vol. 7 at 166. n6 Detective Hoffman

told him “no.” Tr. Vol. 7 at 167. The two officers then

left the room for over an hour. Tr. Vol. 7 at 168. Later,

Detective Hoffman returned and told Guidry that the

police had obtained a statement from his accomplice,

Joseph Prystash. Tr. Vol? at 169. After Guidry read the

statement, he [*8] “demmaxied™ that the officers let him

contact his attorney. Tr. Vol. 7 at 170. Detective Hoff-

man asked who his attorney was and left the room, say-

ing that he_was going to talk to counsel, Tr. Vol. 7 at

170-71. Some time later, Detective Hoffman returned,

telling Guidry that he had talked to the attorney. Detec-

tive Hoffman "said it was all right for [Guidry] to answer

the questions and don't worry about it." Tr. Vol. 7 at 171-

72. Guidry decided to cooperate with the police when he

heard that his counse: had given him clearance to speak

with the police. Tr. Vol. 7 at 175, 187, 191. n7

n6 Interestingly, in the August 28 hearing

when Detective Roberts was first asked if Guidry

had requested counsel he responded "I was not

present when he said that." Tr. Vol, 3 at 26.

n? Guidry's counsel for the aggravated rob-

bery charge, Layton Duer, had previously told

him not to talk to the police. Tr. Vol. 7 at 123.

On cross-examination, Guidry testified that, his ini-

tials on the written forms notwithstanding, the police

[*9] first read him his rights during the videotaped walk-

through. Tr. Vol. 7 at 181-82. Guidry also stated that

Detective Hoffman promised him a lenient sertence if he

confessed to being the triggerman. Tr. Vol. 7 at 198.

The defense supported Guidry's story with the testi-

mony of the attorneys first appointed to represent him in

the capital murder proceedings, Sylvia Yarborough and

Robert Scott. They testified concerning an event that

transpired in another state judge's chambers. On March

15, 1995, the trial court appointed Ms. Yarborough and

Mr. Scott to represent Guidry on the capital murder

charge. Tr. Vol. 7 at 104, 139. That day, those two attor-

neys, an Assistant District Atto.«¢y, another lawyer and

two police officers (including Detective Roberts) were in

the judge's chambers. Tr. Vol. 7 at 105. The attorneys

heard the one detective turn to Detective Roberts and ask

"Whai do you mean taking Mr. Guidry out, getting in a --

getting a confession when you knew he had a lawyer?"

Tr. Vol. 7 at 107. Detective Roberts told him "I talked to

his lawyer, and his lawyer said it was okay to talk to

him.” Tr. Vol. 7 at 108, 141-42. Another attorney present

in the room, Deborah Gottlieb, confirmed (*10] the de-

tails of this conversation. Tr. Vol. 7 at 131-32. n8

n8 Ms. Gottlieb, however, expressed some

confusion over which police officer made the

statement. Tr. Vol. 7 at 134-35.

Mr. Duer, Guidry's attorney from the aggravated

robbery case, testified that he had never been contacted

2002 U.S. Dist. LEXIS 27685, *

by the police with respect to the Fratte murder and that

he did not give them permission to speak to his client. Tr

Vol. 7 at 123-24. This testimony suggested that the po

lice feigned a conversation with counsel in order to trick

Guidry into confessing.

The tnal court orally denied Guidry’s motion to sup-

press after the hearing. Tr. Vol. 7 at 213-14. At trial, the

defense wished to place before the jury the question of

whether Guidry invoked his right to counsel. When tnal

counsel attempted to call Mr. Duer as a witness, the trial

court questioned whether his testimony would present a

question for the jury to decide. Regarding the conversa-

tion that occurred in chambers, the trial court stated "I'm

perfectly satisfied that the - [*11] that the Scott,

Gottheb, Yarborough conversation, while the author of

the conversation may very well be up in the air, the sub-

stance of the comment is not.” Tr. Vol. 24 at 234-35. The

trial judge, however, thought that this testirnony would

be immaterial “unless there is some testimony some-

where from somebody, whether it direct or implicit, or

circumstantial, that in fact, the defendant did not waive

his rights and, in fact, asserted one or more of them.

Unless that occurs, it doesn't make any difference what

his lawyers told him." Tr. Vol. 24 at_240. Out of the

jury's presence, the trial court then heard substantially the

same evidence as presented in the suppression hearing.

After considering that testimony, the trial court held that

the evidence did not raise a question for the jury to con-

sider regarding the waiver of Guidry's rights. Tr. Vol. 24

at 289-90.

After the conclusion of the trial and the initiation of

Guidry's appeal, the trial court issued findings of fact and

conclusions of law explaining its decision. Tr. Voi. '-A

at 423-29. The trial court extensively reviewed the testi-

mony presented by the State at the suppression hearing.

While the trial court discussed Guidry's [*12] own tes-

timony, it did not address, much less issue findings of

fact concerning, the testimony by the attorneys. After

considering the State's evidence, the trial court found that

the police had warned Guidry of his constitutional nghts

and Guidry had waived those nghts. Tr. Vol. I-A at 429.

The trial court found that “at no time did [Guidry] state

he wanted to have an attorney present prior to or during

any questioning; at no time did he indicate he wanted an

attorney present to advise him ?” Tr Vol. I-A at 430.

The tral court concluded that Guidry had been informed

of his rights at least five times and that he intelligently

and knowingly waived those rights. Tr. Vol. I-A at 430.

On direct review, Guidry asked the Court of Cnmi-

nal Appeals to remand his case for further fact-finding,

arguing that the trial court's failure to address the defense

testimony rendered the tal determination insufficiently

detailed to permit appellate review. The Court of Crimi-

nal Appeals recognized that the trial findings did not

address conflicts in the record, but held that “the trial

court is required to set forth the facts which support its

conclusions, but need not outline the testimony [*13]

which does not support its conclusions.” Guidry v. State,

9 S.W 3d 133, 141 (Tex. Crim. App. 1999), cert. denied,

531 US. 837, 148 L. Ed. 2d $7, 121 S Ct. 98 (2000).

Reviewing the trial findings, the Court of Criminal Ap-

peals found that the finding that Guidry did not request

th= presence of counsel provided a sufficient basis for

appellate review. See Guidry, 9 SW. 3d at 142.

In the Court of Cnminal Appeals, Guidry also raised

a claim that the police took his statement in violation of

his Fifth Amendment rights. n9 Guidry focused on the

inconsistent testimony in the suppression hearing. Guidry

claimed that the police officers tricked him into confess-

ing by pretending that his counsel gave him permission

to talk to them. Guidry highlighted the fact that the tral

court's findings and conclusions did not mention his evi-

dence about the conversation in judge's chamber and his

own account of the interrogation. The Court of Criminal

Appeals rejected Guidry's claim as follows:

n9 Guidry additionally argued that the tal

court vivlated his Sixth Amendment right to coun-

sel because he was entitled to have the atiorncy

appointed for the aggravated robbery charges

present during the capital-murder confession.

This is of no moment. The right to counsel only

attaches at the initiation of formal criminal pro-

ceedings. See Texas v. Cobb, $32 U.S. 162, 167-

74, 149 L. Ed. 2d 321, 121 S. Ct. 1335 (2001)

(holding that the mght to counsel! does not attach

to uncharged, separate offenses); McNeil v. Wis-

consin, 501 U.S. 171, 175-76, 115 L. Ed. 2d 158.

141 S. Ct. 2204 (1991) (finding that the night to

counsel is offense-specific). At the time of his

confession, criminal proceedings had not been

initiated against Guidry in the Fratta murder. He

had no Sixth Amendment entitlement to counsel

for the capital murder case when he confessed.

[*14)

There was conflicting testimony as to

whether appellant requested his attorney

during the interrogation. The interrogating

officers testified that appellant did not ask

to speak to an attorney; appellant testified

that he requested to talk to his attorney.

The tnal court found that appellant was

fully aware of his mghts, including the

nghts to remain silent and to seek the as-

sistance of counsel. The trial court further

Page 6

2002 U.S. Dist. LEXIS 27685, *

concluded that appellant knowingly, intel-

ligently, and voluntarily waived his nghts.

There is evidence in the record supporting

these findings. Because the trial court is in

the best position to evaluate the credibility

of the witnesses and their testimony, we

defer to the trial court's findings.

Guidry, 9 S W 3d at 143. n10

nl0 Guidry also challenged his confession on

state habeas review. The state habeas court pro-

cedurally barred his claim because it had been

raised and rejected on direct review. State Ha-

beas Record at 143 P 5. The state habeas court

did review the facts supporting the trial determi-

nation and pointed out discrepancies in Ms.

Gottlieb's testimony. State Habeas Record at 129-

38. The state habeas court did not discuss Mr.

Scott or Ms. Yarborough's testimony. In its alter-

native ruling, the state court found that Guidry

failed to prove that the police took his statement

in violation of the Constitution. State Habeas Re-

cord at 143 P6

(*15}

In these proceedings, Guidry argues that the trial

court failed to consider the testimony from the four at-

torneys that bolstered his credibility. Guidry contends

that the trial court's determination that he did not invoke

his right to counsel was unreasonable in light of the con-

flicting testimony. Specifically, Guidry contends that the

trial court's silence with respect to the attorney testimony

implicitly accuses members of the bar with perjury-an

unlikely and unreasonable conclusion. Yet Guidry notes

that the state court's trial comments inexplicably find

their account of the chamber's conversation to be credi-

ble. Also, Guidry points to inconsistencies in the police

testimony that would indicate their awareness that he

was represented by counsel during the interrogation. In

sum, Guidry contends that the state court's incomplete

determination was an unreasonable application of federal

law. Guidry's contention must be addressed in the con-

text of the AEDPA.

Il. Analysis

A. The AEDPA

This issue comes before the Court under the

AEDPA's limited review. Under the relevant portions of

the AEDPA,

[HN1] An application for a writ of habeas

corpus on behalf of a person (*16] in cus-

tody pursuant to the judgment of a State

court shall not be granted with respect to

any claim that was adjudicated on the

merits in State court proceedings unless

the adjudication of the claim --

(1) resulted in a decision

that was contrary to, or in-

volved an unreasonable

application of, clearly es-

tablished Federal law, as

determined by the Supreme

Court of the United States;

or

(2) resulted in a decision

that was based on an un-

reasonable determination

of the facts in light of the

evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d). The deferential standard outlined

above differs depending on whether the state court en-

gaged in a legal, factual, or mxed inquiry.

{HN2] Legal issues or mixed questions of law and

fact are evaluated under 28 USC § 2254(d)(1). See

Gachot v. Stadler, 298 F 3d 414, 417-18 (Sth Cir. 2002).

A state-court decision is contrary to Supreme Court

precedent if: (1) the state court's conclusion is "opposite

to that reached by [the Supreme Court] on a question of

law” or (2) the "state court confronts facts that are mate-

nally indistinguishable from a reievant [*17] Supreme

Court precedent” and arrives at an opposite result. Terry

Williams v. Taylor, 529 U.S. 362, 406, 146 L. Ed. 2d

389, 120 S. Ct. 1495 (2000). ni Guidry's primary argu-

ment is not that the state determination was contrary to

federal law; he instead relies on the “unreasonable appli-

cation” prong of § 2254/(d)(/).

nll On April 18, 2000, the Supreme Court

issued two separate opinions, both originating in

Virginia, involving the AEDPA in which the peti-

tioners had the same surname. Jerry Williams v.

Taylor, 529 U.S. 362, 146 L. Ed. 2d 389, 120 S.

Ct. 1495 (2000) involves § 2254(d)(1) and Mi-

chael Williams v. Taylor, 529 US. 420, 146 L

Ed. 2d 435, 120 S Ct. 1479 (2000) involves §

2254(e}(2). To avoid confusion, this Court will

Page 7

2002 U.S. Dist. LEXIS 27685, *

include the full name of the petitioner when cit-

ing these cases.

{HN3] A state court may unreasonably apply federai

law if it "identifies the correct legal rule from [Supreme

Court] cases but unreasonably applies it to the particular

facts of the particular state prisoner's case” or "if the state

court either unreasonably extends a legal principle [*18}]

from [Supreme Court] precedent to a new context where

it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply." Terry

Williams, 529 U.S. at 407. "To be unreasonable, the state

court application of federal law must be something more

than merely erroneous." DiLosa v. Cain, 279 F.3d 259,

262 (Sth Cir. 2002). To provide relief, a federal habeas

court must not only conclude that "the relevant state-

court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must

also be unreasonable." Terry Williams, 529 US. at 4/1,

see also Penry v. Johnson, 532 U.S. 782, 793, 150 L. Ed.

2d 9, 121 S. Ct. 1910 (2001), Gardner v. Johnson, 247

F 3d S51, 560 (Sth Cir. 2001) ("Even though we cannot

reverse a decision merely because we would reach a dif-

ferent outcome, we must reverse when we conclude that

the state court decision applies the correct legal rule to a

given set of facts in a manner that is so patently incorrect

as to be unreasonable."”).

{HN4] “When reviewing summary judgment on a

petition for habeas corpus, consistent with the provisions

of 28 USC. § 2254 [*19] (da), [a federal court] pre-

sumes all state court findings of fact to be correct in the

absence of clear and convincing evidence.” Ogan v.

Cockrell, 297 F.3d 349, 358 (Sth Cir. 2002). The Court

will consider Guidry’s allegations in light of the above-

mentioned standard.

B. The Merits

Guidry contends that the admission of his statements

violated his Fifth Amendment right to counsel. [HN5] "In

Miranda v. Arizona, 384 US 436, 16 L. Ed. 2d 694, 86

S. Ct. 1602(1966), {the Supreme Court} held that certain

warnings must be given before a suspect's statement

made during custodial interrogation could be admitted in

evidence.” Dickerson v. United States, 530 U.S. 428,

431, 147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000). Under

Miranda, a person must be advised of the right to remain

silent and the right to have an attorney present. See

Miranda, 384 US at 478-479.

In his petition, Guidry claims that the taking of his

confessions violated the principles enshrined in Edwards

v. Arizona, 451 US. 477, 68 L. Ed. 2d 378, 101 S. Ct

1880 (1981). "In Edwards v. Arizona, 451 U.S 477, 101

S. Ct. 1880, 68 L. Ed. 2d 378 (1981), {HN6] the Stpreme —

Court held that, once a suspect in [*20] custody invokes

the Fifth Amendment right to counsel, the police may not

interrogate the suspect in the absence of counsel -- even

if the suspect later attempts to waive that right.” United

States v. Avants, 278 F 3d 510, 514-15 (Sth Cir), cert.

denied,536 U.S. 968, 153 L. Ed. 2d 854, 122 S. Ct. 2683

(2002), see also Oregon v. Bradshaw, 462 US. 1039.

1044, 77 L. Ed 2d 405, 103 S. Ct. 2830 (1983) (stating

that Edwards set forth a "prophylactic rule, designed to

protect an accused in police custody from being badg-

ered by police officers. . . ."). "Under Edwards, any

statement made by the suspect in response to police-

initiated questioning after an invocation of the right to

counsel violates the Fifth Amendment and must be ex-

cluded.” Avants, 278 F.3d at 515. The “'rigid’ prophylac-

tic rule [of Edwards] embodies two distinct inquires.

First, courts must determine whether the accused actually

invoked his mght to counsel. Second, if the accused in-

voked his right to counsel, courts may admit his re-

sponses to further questioning only on finding that he (a)

initiated further discussions with the police, and (b)

knowingly and intelligently waived [*21] the right he

had invoked.” Smith v. Illinois, 469 U.S. 91, 95, 83 L. Ed.

2d 488, 105 S. Ct. 490 (1984) (citations omitted). Both

inquiries are at issue in this case.

On direct review the Court of Criminal Appeals ex-

pressly deferred to the trial court's factual findings and

legal conclusions. The trial court unequivocally found

that Guidry did not “ever ask to remain silent; at no time

did he ever indicate he didn't want to make any statement

at all; at no time did he state he wanted to have an attor-

ney present prior to or during any questioning; at no time

did he indicate he wanted an attorney present to advise

him; and at no time did [he] indicate that he wanted to

end the interview." Tr. Vol. I-A at 429-30. This issue

comes before the Court under the deferential review af-

forded state factual findings. [HN7] Such findings are

entitled to a presumption of correctness under 28 U.S.C.

§ 2254(e)(1). Guidry may rebut the presumption of cor-

rectness by clear and convincing evidence.

Having extensively reviewed the facts of this case,

this Court is unable to grant Respondent's summary

judgment motion at this time. Substantial factual ques-

tions persist surrounding Guidry's confessions. [{*22]

The state courts made no attempt to evaluate the veracity

of the attorney testimony or analyze its implication in

this case. The state courts made no specific finding with

respect to the inconsistent and contradictory testimony

by the police officers. If the allegations in Guidry’s peti-

tion, as corroborated by the attorneys’ testimony, are true,

the reasonableness of the state court decision is suspect.

For this Court to fully evaluate the circumstances sur-

rounding this claim, further factual development is ap-

propriate. Factual development would aid this Coust in

determining whether clear and convincing evidence re-

Page 8

2002 U.S. Dist. LEXIS 27685, *

buts the trial finding that Guidry did not request counse!

Also, the factual development would clarify the ultimate

question of the reasonableness of the state court's deter-

mination. See Valdez v. Cockrell, 274 F.3d 941, 952 (Sth

Cir. 2001) (HN8] ("When a district court elects, in in-

stances not barred by § 2254(e)(2), to hold an eviden-

tiary hearing, the hearing may assist the district court in

ascertaining whether the state court reached an unreason-

able determination under either § 2254/d)(1) or (d)(2).").

To that end, the Court will hold an evidentiary hearing

[*23]} limited to the issue of Guidry's Fifth Amendment

claim. n12

nl2 Having reviewed the record, especially

in light of Guidry's effort to remand his direct ap-

peal for fact-finding, the Court finds that Guidry

has complied with 28 USC § 2254(e)(2/'s

threshold standard of diligence. See 28 USC. $

2254(e)(2); Michael Williams, 529 U.S. at 432.

The Court, However, must comment on the allega-

tions in Respondent's summary judgment motion. Re-

spondent argues that the testimony from the chambers

episode is not as beneficial as anticipated by Guidry's

claim. Respondent focuses on three main factors: (1) the

police denied making the statements; (2) if the episode in

chambers indeed occurred, the motive behind the state-

ment is unclear; and (3) the statement does not prove that

Guidry invoked his right to counsel. These factors, how-

ever, do not detract from the strength of Guidry’'s asser-

tion. First, while Detective Roberts testified that no one

made the [*24] statement in question, three members of

the bar testified otherwise. Detective Roberts’ testimony

in that respect is suspect. This is especially the case as

Detective Roberts gave contradictory and inconsistent

testimony on other grounds. Second, the fact that the

motive behind the statement is unclear highlights the

inadequacies of the state review. Respondent's attempt to

characterize the statement as a joke is pure speculation,

accentuating the need for factual development. It is espe-

cially difficult to ascertain Detective Roberts’ motive

from the record because he emphatically denied making

any such statement in chambers. Tr. Vol. 7 at 203. Fi-

nally, while the officer making the comment did not ex-

pressly say that Guidry had invoked his right to counsel,

the Court cannot turn a blind eye to the fact that the

comment is based on the assumption that Guidry asked

to speak to counsel. The police would have no need to

concoct a story about getting an attorney's permission to

speak with a client if Guidry did not request counsel's

assistance. The comment by the police does more than

enhance Guidry's credibility and detract from their own,

it shows that the police potentially ignored Guidry's

{*25] right to counsel.

Respondent also claims that, even if the episode oc-

curred, any improper admission of the confession was

harmless error. That argument cannot carry the day here.

Aside from Guidry's confession, little evidence demon-

strated his guilt for capital murder. Only three other fac-

tors pointed to his guilt: (1) his possession of the murder

weapon, (2) weak and inconclusive eyewitness testimony

showing that someone dressed like Guidry killed Ms.

Fratta; and (3) statements made by Prystash to his girl-

friend implicating Guidry in the murder-for-hire. How-

ever, the Court of Criminal Appeals held that Prystash’'s

hearsay statements were harmless because the jury may

have based its verdict on Guidry's confessions. If the

Court assumes that the confessions were erroneously

admutted, it may be improper to rely on those statements

to show any harmlessness of the hearsay statements.

Thus, the evidentiary picture constructed from the re-

maining properly-admitted evidence may implicate

Guidry in the murder, but it would not support the factor

which made the killing a capital offense: that Guidry

committed th murder for remunerativn. In the end, the

confession formed a substantial role in (*26] the jury's

determination which, if im error, was injurious to

Guidry's case. The admission of the confessions was not

harmless.

Factual development would aid the Court in deter-

mining whether or not the state court's rejection of this

claim was reasonable as understood by the AEDPA. The

Court, therefore, will conduct an evidentiary hearing in

which the parties will present evidence to determine if

Guidry invoked his right to counsel. The Court is par-

ticularly interested in exploring the conversation in

which the police stated that they had contacted Guidry's

counsel, the conflicting suppression-hearing testimony

by the police officers, and the reasonableness of the trial

court's decision,

Ill. Conclusion

Based on the discussion above, the Court denies Re-

spondent's motion for summary judgment. nl3 An evi-

dentiary hearing is scheduled for November |, 2002, at

9:30 a.m. Counsel shall file their proposed witness and

exhibit lists by October 15, 2002.

nl3 The Court did not address the ments of

Guidry’s prosecutorial misconduct and impartial

jury claims. The summary judgment motion relat-

ing to those claims is denied without prejudice to

reurge after the Court holds the evidentiary hear-

ing.

(*27]

The Clerk will provide a copy to the parties.

2002 U.S. Dist. LEXIS 27685, *

Signed at Houston, Texas, on September 10, 2002.

VANESSA D. GILMORE

UNITED STATES DISTRICT JUDGE

Y,

No. 05-965

IN THE SUPREME COURT OF THE UNITED STATES

HOWARD PAUL GUIDRY,

Respondent,

Vv.

DOUG DRETKE, Director, Texas Department of

Criminal Justice, Correctional Institutional Division

Petitioner.

On Petition For Writ of Certiorari

to the Texas Court of Criminal Appeals

REPLY BRIEF

GREG ABBOTT *GENA BUNN

Attorney Generai of Texas Chief, Assistant Attorney General

Postconviction Litigation

Division

BARRY R. McBEE

First Assistant Attorney General TINA J. DETTMER

Assistant Attorney General

DON CLEMMER Postconviction Litigation Division

Deputy Attorney General

_ For Criminal Justice P.O. Box 12548, Capitol Station

Austin, Texas 78711

* Counsel of Record (512) 936-1600

ATTORNEYS FOR PETITIONER

TABLE OF AUTHORITIES

Page

Baston v. Kentucky, 476 U.S. 79 (1986) .............00058- 3

Lavalle v. Delle Rose, 410 U.S. 690 (1973) ................ 3

Marshall v. Longberger, 459 U.S. 422 (1983) ............. 3

Miller v. Fenton, 474 U.s. 104 (1985) ............2.0050.. oy

mice Vv. Comins. 1276'S. Ct: 969 C008) oe cei ee 3,4

Tvlor v. Maddox, 366 F.3d 922 (9" Cir. 2004) ........... 1,2

Constitutions, Statutes, and Rules

By ay Ot RR OME cs oe oe oO eee eee RSW OEE 3

Miscellaneous

Antiterrorism and Effective Death Penalty Act of 1996 ..... 3.4

REPLY

The Fifth Circuit’s opinion in this case is not consistent with

decisions from this Ccourt and other circuit courts of appeals.

Guidry maintains ‘hat certiorari review is not necessary in this case

because “[a]ll courts deciding this issue are in agreement that state

court findings which ignore or overlook crucial evidence are not

entitled to a presumption of correctness and are unreasonable.”

Opposition at 11. He relies upon this Court’s decision in Miller-El

v. Cockrell, 537 U.S. 322, 346 (2003), and the Ninth Circuit’s

opinion in Taylor v. Maddox, 366 F.3d 922, 1006-1008 (9" Cir.

2004) for support. However, neither case is applicable in this

instance.

Guidry is correct in pointing out that both Miller-El and

Maddox were concerned, at least in part, with the adequacy of the

state court fact-finding process where the state court apparently

ignored or failed to consider relevant evidence. See Miller-El, 537

U.S. at 346 (stating that “Our concerns are amplified by the fact that

the state court also had before it, and apparently ignored, testimony

demonstrating that the [ |District Attorney's Office had, by its own

admission, used this process to manipulate the racial composition

of the jury in the past.”); Taylor v. Maddox, 366 F.3d at 1005

(finding that “[t]he state courts’ failure to consider, or even

acknowledge, [ | highly probative testimony casts serious doubt on

the state-court fact-finding process and compels the conclusion that

the state-court decisions were based on an_ unreasonabie

determination of the facts.”’).

Nevertheless, these cases do not control here. Contrary to

Guidry’s contention, the state trial court did not ignore the

testimony offered by the four attorneys during the suppression

hearing in deciding whether Guidry’s confession was obtained in

violation of the Fifth Amendment. Although the trial court’s

2

findings of fact did not specifically reference the attorneys’

testimony, the record bears out that this testimony was considered

by the state trial court in making a very difficult credibility

determination.

At the close of the second suppression hearing, the trial

court made the follov. + comments:

Let me be sure that I’m hearing accurately. And this

is just so that I’m satisfied in my mind-eye of the

following. Do we agree that in Judge Kegans’

- courtroom chambers the conversation was absolutely

meaningless, except as it relates to credibility?

7SR211. A few moments later, the trial court stated for purposes

of the record that his understanding of the ultimate question was

whether or not Guidry had asserted his rights and asked for a lawyer

to be present. The judge also reiterated his view that the

conversation that allegedly look place in the Judge’s chambers was

relevant only to the extent that it bore on Guidry and the detective’s

credibility. 7 SR 211-213.

The fact that the state trial court did not make explicit

reference to the testimony of the four attorneys in its factual

findings is of no moment. Unlike Miller-El and Taylor, where there

was nothing in the record indicating that the state court had

considered the evidence in question, it is clear from the record in

this case the court considered this evidence to the extent that it

weighed on Guidry and/or the detectives’ credibility concerning

whether Guidry had, in fact, asked for iis lawyer to be present

during questioning.

Thus, implicit in the state court, finding that the detectives’

testimony was credible, is a finding that the attorneys’ testimony

3

did not persuade the court that Guidry had told the truth when he

told the court he had requested an attorney be present during the

police interrogation. Furthermore, for reasons stated more fully in

the Director’s petition for certiorari review, these implicit findings

are entitled to the same presumption of correctness afforded to

explicit factual findings under 28 U.S.C. § 2254(e)(1). See

Marshall v. Lonberger, 459 U.S. 422 (1983); LaValle v. Delle Rose,

410 U.S. 690 (1973). It is the failure to afford proper deference to

this implicit finding and the other credibility determinations made

by the state trial court that places the Fifth Circuit’s opinion in this

case at odds with precedent from this Court and other courts of

appeals. See Petition at 11-17.

Notably, in the time that has elapsed since the Director filed

his petition for writ of certiorari, the Court announced its opinion

in Rice v. Collins, 126 S. Ct. 969 (2006), which clearly controls the

issue here. Certiorari review was granted in that case because the

Court was “[c]Joncerned that, in {a] habeas corpus case, a federal

court set aside reasonable state-court determinations of fact in favor

of its own debatable interpretation of the record.” /d. at 972. It was

decided that a federal habeas court could not supersede the state

trial court’s credibility determinations regarding the viability of the

prosecutor’s race-neutral explanations proffered in response to a

Baston' challenge simply because it disagreed with the findings

made by the state court. /d. at 976. Specifically, the Court stated

that “The panel majority’s attempt to use a set of debatable

inferences to set aside the conclusion reached by the State court

does not satisfy AEDPA’s[’] requirements for granting a writ of

habeas corpus.” /d.

Baston v. Kentucky, 476 U.S. 79 (1986).

Antiterrorism and Effective Death Penalty Act (1996).

4

Rice is applicable here. The court of appe~!s in this case

accepted the district court’s substitution of its own credibility

determinations for those made by the state trial and appellate courts.

After holding a hearing that produced substantially the same

information as that offered during the state court suppression

hearings, the district court explicitly stated that it wanted to make

its own credibility determinations. Furthermore, the district court

acknowledged in its opinion that those credibility determinations

were based on the “same live witnesses, and presumptively same

demeanor, as was presumably considered by the trial court.”

Appendix C at 15. Thus, with little, if any, new information, the

federal district court replaced the state court’s credibility findings

with its own equally debatable determinations.

Because the instant case is materially indistinguishable from

Rice, this Court must grant certiorari review to resolve the conflict

that exists between the Fifth Circuit’s published decision in Guidry

and authority issued from this Court. Alternatively, because this

Court’s decision in Rice was not available to the Fifth Circuit in

deciding this case, this Court should grant, vacate, and remand to

the court of appeals for reconsideration in light of Rice.

CONCLUSION

For the reasons stated above, the Director respectfully

requests that this Court grant certiorari review to ensure uniform

application of the AEDPA. Alternatively, this Court should grant,

vacate, anc remand to the court of appeals in light of Rice v.

Collins.

*Counsel of Record

5

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

BARRY R. McBEE

First Assistant Attorney General

DON CLEMMER

Deputy Attorney General

for Criminal Justice

*GENA BUNN

Chief, Assistant Attorney General -

Postconviction Litigation Division

TINA J. DETTMER

Assistant Attorney General

Postconviction Litigation

Texas Bar No. 24026139

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Tel: (512) 936-1400

Fax: (512) 320-8132

ATTORNEYS FOR PETITIONER