Kenneth Wayne Magouirk v. Michael Phillips, Warden, Winn Correctional Center and Richard P. Ieyoub, Attorney General, State of Louisiana

putative state officials these proceed against because, in capacities such

in their individual “persons” within capacity, they are Melo, v. 502 U.S. meaning § 1983. Hafer 358, 365,

21, 31, 116 L.Ed.2d 301

(1991).

Conclusion factors, considering relevant we

Upon all arm of is not an that the GNOEC

conclude may not and therefore state of Louisiana immunity. For Amendment

invoke Eleventh ably assigned

essentially the same reasons court, deny its decisions to

by the district summary judgment motion for

GNOEC’s subject matter for lack of dismissal

and/or case is

jurisdiction is AFFIRMED and the proceedings. further

REMANDED for Wayne MAGOUIRK,

Kenneth

Petitioner-Appellant, PHILLIPS, Warden,

Michael Winn Cor Iey Center; P. and Richard

rectional Attorney General,

oub, State of Louisi

ana, Respondents-Appellees.

No. 96-31049. Appeals,

United States Court

Fifth Circuit.

June Black, LA, Shreveport,

Peter J. for Peti- tioner-Appellant. Mary Slaughter, Asst. Dist.

Madeleine Monroe, LA, Atty., Respondents-Appel- lees. WISDOM, DeMOSS, SMITH and

Before Judges. Circuit DeMOSS, Judge: Circuit Wayne Magouirk appeals from Kenneth dismissing the district court’s order his 28 petition corpus § 2254 for habeas re- U.S.C. lief. raised five claims for federal court, acting on the review. The district Magistrate Judge recommendation of a who Magouirk’s procedural raised default of three sponte, applied Magouirk’s sua default litigation of those three claims. to bar federal Magistrate Magouirk maintains Judge the federal district court were authority without to raise default sponte. that a federal district We hold apply has to raise and discretion petitioner’s procedural default sua habeas sponte. We therefore affirm the district holding Magouirk’s procedural court’s litigation barred federal of three of his five claims. appeals also the district court’s that he is not entitled to relief

determination remaining respect with to his two claims. meaningful review of Finding no basis for record, Magouirk’s remaining claims the district court’s dismissal of we vacate those claims and remand to the district record, supplement instructions to evidentiary necessary, if to conduct an (cid:127) challenged Magouirk and the state two Both merits of hearing on the evidentiary ruling, seeking the trial court’s judg- Accordingly, remaining claims. discretionary interlocutory review. writs part, part, reversed ment is affirmed at 58 n. 1. Those writs were denied Id. further with instructions remanded Appeal and the both the Louisiana Court of proceedings. Id.; see also Louisiana Court. (La.1987) Magouirk, 503 So.2d 481 State BACKGROUND application for writ of certio (denying state’s (La. rari); Magouirk, 503 State v. So.2d I. 1987) application for (denying Magouirk’s certiorari). writ of Introduction man Magouirk of convicted Louisiana III. Katherine Thomas the death of slaughter Magouirk’s hér abducted from Confession Thomas was 1987. home, and thrown into Oua killed trial, mobile year July In about one before Mago generally State chita River. See jailhouse to his Magouirk allegedly confessed uirk, (La.Ct.App.1989) 52-54 roommate, 539 So.2d Durbyn, was re Alfred that he denied, offense), unit 566 So.2d (describing Durbyn Thomas’ murder. re sponsible for (La.1990). was drawn to Police attention lawyer, to his who ar ported the confession tip they that Ma Magouirk after received Durbyn to make a recorded ranged for underwear, a fetish for women’s gouirk had Durbyn’s state statement for the Sheriff. of Thomas’ that had some and jail Magouirk’s recounts ment to the Sheriff possession. Id. at in his confession; underwear says told house arrest, police spot Magouirk’s Near the Durbyn Magouirk had taken Thomas clothing, which in bag of women’s found a home, perform oral from her forced her at belonging to Thomas and her,” cluded items truck and then “wasted and sex his women, Cloyd and Karen least two other to kill him says Magouirk threatened Kaye Id. at 59-60. Rothwell. (Durbyn) (Durbyn) Magouirk’s revealed if he 1986, Magouirk filed August In

confession. Preliminary Examination for “Motion for II. Testimony for the Perpetuation of Evidence “Other Crimes’’ 54; at Magouirk, 539 So.2d Fixing of Bail.” Sep In art. 296. see also La.Code CrimP. trial, provided notice Prior the content the state disclosed tember. relating evidence that it wanted to introduce Mago Durbyn’s statement recorded burglaries in which women’s to five other counsel in answers discov uirk’s defense Specifically, the state was stolen. underwear thereafter, Magouirk moved ery. Shortly burglary of an earlier to use evidence wanted Durbyn’s inculpatory statement. suppress Thomas, burglaries from and similar from at 54. Magouirk, 539 So.2d at 58. The women. See id. four other .trial mo- Magouirk’s In and while prior Thomas October evidence of the court excluded was Durbyn’s statement suppress burglaries, but al tion burglary, two other hearing on held a pending, the trial court burglaries of Kar relating to lowed evidence testimony. perpetuate Magouirk’s motion Kaye Rothwell. Id. Evidence Cloyd en any wit- not call at 54. The state did burglaries was Id. Cloyd and Rothwell from the Durbyn, who re- Magouirk called nesses. Cloyd’s clothing and Roth- because allowed Magouirk’s confession bag peated the details in the clothing were found well’s eliciting the dam- Thus, Id. After for the at evi record. clothing. Thomas’ Id. 58-60. counsel claimed testimony, Magouirk’s aging relating Cloyd and Rothwell dence permission to treat surprise requested demonstrably related to burglaries was The state witness. Id. homicide, Durbyn as a hostile to establish and tended Thomas surprise because no argued- there was in the course of one that Thomas was killed testimony been dis- Durbyn’s had burglaries. Id. content signature Magouirk’s jury, Durbyn discovery. The trial court ex- court warned that the closed in justify dismay Magouirk was claim- Fifth Amendment did not his refusal pressed Magouirk’s request testify against Magouirk. Id. When Dur- ing surprise, and denied byn testify, as hostile. Id. at continued to refuse to the trial to treat his own witness Durbyn contempt. court held Id. 54-55. hearing Magouirk’s Durbyn subsequent The state moved to have declared At a “unavailable,” Durbyn’s testimony, Durbyn’s testimony Dur- so that suppress motion to Durbyn’s plea perpetuation hearing bar- could be intro- byn’s lawyer testified Magouirk objected, arguing that gain testimony duced.1 he not affected Durbyn to cross-examine against Magouirk. Magouirk’s Id. at 55. had no attempted Durbyn hearing. as a in the earlier Id. The trial court again counsel to call witness, rejected Magouirk’s request was denied. and allowed hostile Durbyn Durbyn’s testimony pre- then from Id. counsel called recorded examination, Durbyn liminary hearing played point jury at which to be for the on direct trial, entirety. Mago- confession its Id. Later in the stated the details time, attempted Durbyn uirk for a motion to to call as a hostile third testimony Id. The trial suppress Durbyn’s was denied. witness. court refused to have Durbyn brought jury again. before the Id. Durbyn was examined

When outside presence jury, of the he stated that he would IV. stay altogether.” to out of “like Id. Testimony Trial Durbyn’s Aborted Magouirk charged degree was with second begin to on June Trial was scheduled murder, jury but the was also instructed on June, jail early Parish 1987. In Ouachita deliberation, lesser included offenses. After Durbyn reported Magouirk that and officials jury guilty returned a verdict on the jail engaged in paths in the and had crossed responsive lesser included' verdict of man- physical a brief altercation. The assistant slaughter. Id. at 52. attorney prosecuting Magouirk’s ease shortly of this attack thereaf- was informed V. officer, jail by investigating ter who also happened prosecuting attorney’s Magouirk’s Appeal First to be to the Louisiana Thereafter, trial, shortly Appeal wife. before Court of attorney Dur- prosecuting reinterviewed Magouirk appealed, raising a number of byn potential testimony about his (1) issues, including was he denied the Durbyn prose- against Magouirk. told the Durbyn, to cross-examine in vio- attorney attorney’s cuting and the district lation of his Sixth Amendment confrontation fight Magouirk. with investigator about (2) right; erroneously the trial court 15,1987. Cloyd began Trial as scheduled on June admitted evidence of the and Rothwell Durbyn being burglaries, prior transferred from as While was well as evidence of the jail Durbyn testify, burglary by to told the district Thomas that had been excluded (3) order; attorney’s investigator that he had decided the evidence him testify. against support not to When the state called Dur- was insufficient to his September In byn, Durbyn took the stand and testified that conviction. the Louisi- hearing per- Appeal opinion at the ana of an his earlier statements issued re- petuate testimony Durbyn versing remanding were true. Id. the matter for a new further, testify stating Appeal trial. Id. at 54-57. The Court of then refused Durbyn’s perpet- he to exercise his Fifth Amendment found that the admission of wanted , presence testimony rights. Magouirk uated denied his consti- Id. Outside able, (2) unavailability provides testimony given at was not Louisiana law witness’ preliminary by party offering testimony. examination is admissible for procured case, purpose subsequent proceeding at a 295(B). La.CodeCrim.P.art. if the court finds that the is unavail- witness trial, by Durbyn Magouirk right waived his confrontation right to confront tutional misconduct; afforded the limited cross-examination had hearing was preliminary by examination right in the in fact waived his confrontation mis satisfy insufficient Amendment his Sixth Magouirk, at 64-66. conduct. 539 So.2d Ap- right. The Court of Id. Appeal responded Mago confrontation The Court that the rejected argument peal scope uirk’s waiver and limited the relating to similar crimes” evidence remand, however, “other proceedings ex admitted, and de- improperly burglaries cluding reliance facts or evidence that consider, unnecessary, as his chal- clined the state either knew or should have known Id. sufficiency the evidence. lenge to the testify time Durbyn about at the refused to at 58-61. Appeal at trial. The Court of also examined proof by the standard which the state Appeal the Court In October after prove would be forced waiver decision, filed a initial entered its considering conflicting After misconduct. rehearing, arguing that petition for circuits, precedent from federal right by engaging his confrontation waived approach Court of embraced the em un Durbyn to be that caused misconduct by the ployed Second Circuit United at trial. See available for cross-examination (2d Mastrangelo, Cir. States v. 693 F.2d 269 Thevis, 616, 630 v. States United 1982). permits Mastrangelo finding (“We 1982) that a B conclude Unit Cir. respect prior state a witness’ to be un a witness who causes defendant proves “by prepon when the state ments prevent purpose for trial for available of the evidence” that the defendant’s derance testifying waives witness from also ing that subsequent caused the misconduct witness’ confrontation.”); see also United unavailability for at trial. cross-examination White, (D.C.Cir.), States — Mastrangelo, 693 F.2d at 273-74. The Loui 390, 139 denied, U.S.-, cert. Appeal rejected expressly siana Court hesitation have no L.Ed.2d 305 (1997) (‘We stringent convincing more “clear and evi league to have finding, in with all circuits used to es by this Circuit dence” standard matter, who that a defendant considered Thevis, waiver in tablish United States a witness procures the absence of wrongfully (5th Cir.1982). F.2d 616 potential may witness not assert confron or witness.”). to rights as that tation petition rehearing simply recount state’s VI.. already the state at trial. ed facts known to Proceedings. Remand on any newly

The state did not offer discovered explain to its belated deci facts or evidence remand, evi- the trial court received On Magouirk’s as a to assert misconduct sion why Durbyn refused to to determine dence Magouirk’s rights. waiver of confrontation testify whether -the'state knew or should why testify to Durbyn known refused have that, responded although all of Magouirk Magouirk’s time the raised before the comprising alleged mis- Magouirk’s the facts by petition misconduct in for re- waiver its Dur- known state when conduct were to the Ap- hearing before Louisiana Court to had never byn testify, was called testify re- Durbyn was to on peal. called Magouirk’s before raised that mand, trial again but he refused and the to waive alleged misconduct was sufficient Durbyn contempt a second court held right to con- Magouirk’s Sixth Amendment time. Therefore, Magouirk Durbyn at trial. front that had waived its maintained waiver, trial issue of the state’s On the argue right Magouirk to that had waived testimony from the assistant court received right Durbyn confront at trial. prosecuted attorney Magouirk’s who investigator. Ap attorney’s the district rehearing, case and On Louisiana Court course, Although both of these interested witnesses peal changed remanding the case alleged mis- Magouirk’s the details of trial court for consideration of knew (1) conduct, including the and the fist- argue that threats right the state waived its (3) fight, testimony gouirk their right; the trial court credited waived his confrontation they calling had no reason to believe Ma- that counsel was ineffective for Dur- Dur- gouirk’s byn misconduct could have caused failing lodge contemporane- and for byn’s testify Durbyn evidence; until objection refusal was ous to the “other crimes” which reinterviewed in December that the evidence was insufficient to Magouirk’s after trial and after the Louisiana Mago- convict him. The trial court denied opinion granting an Appeal Court of issued petition post-conviction uirk’s relief.with- Magouirk The trial relief. court therefore opinion. Magouirk appeal out did not the state had not concluded that waived disposition. trial court’s Magouirk right argue waived his con- right

frontation misconduct. IX. waiver, Magouirk’s the trial On the issue of Magouirk’s Federal Habeas Action Mago- court received the same evidence of this, Magouirk his first filed federal habeas uirk’s misconduct that was known to the action, corpus Magouirk’s October 1995. trial, preponderance state at found petition following for relief raised the claims: Magouirk’s misconduct evidence (1)' Magouirk’s conviction was secured Durbyn’s unavailability caused at trial. The of the Due violation Process Clause trial court held that therefore had Appeal because the Louisiana Court of trial, Durbyn right waived his confront allowed the state to introduce new evi- Magouirk’s request for relief from his appeal Durbyn’s dence on concerning convictionwas denied. testify; refusal to conviction was secured VII. in violation of the Sixth Amendment to the Constitution because the trial court Appeal Second clearly findings made erroneous re- Appeal Louisiana Court of (a) garding right argue the state’s Magouirk appealed, and the Louisiana remand that waived his Court of Mago affirmed. State v. (b) confrontation uirk, (La.Ct.App.), So.2d writ de right, his confrontation nied, (La.1990). In So.2d addition to because wrong court used the reviewing Magouirk’s contention that the dis proof establishing standard of Ma- remand, trict court erred on the Court of waiver; gouirk’s Appeal rejected sufficiency reviewed and the (3) Magouirk’s that conviction was secured Magouirk’s appeal. in raised first in violation of the Due Process Clause Magouirk, (“every See So.2d rea because the state was allowed to intro- hypothesis sonable of innocence was exclud crimes”; duce evidence of “other ed”). Magouirk’s application to the Louisi (4) Magouirk’s that conviction was secured certiorari, ana Court for writ of in violation of the Due Process Clause which raised the issue the state’s waiver because there was insufficient evidence waiver, challenged finding and the of his own support to his conviction for man- opinion. Mago was denied without State v. slaughter; and (La.1990). uirk, 566 So.2d 983 (5) that convictionwas secured in violation of the Sixth Amendment VIII. right to effective assistance of counsel Magouirk’s State Petition request because counsel failed to a lim- Post-Conviction iting respect instruction with to the Relief “other crimes” evidence. Magouirk petition post- next filed a alia, arguing, conviction relief inter that The district court referred the matter to a he was Magistrate denied the to test Dur- Judge, who entered a Memoran- cross-examination; (2) byn’s testimony Magouirk requiring dum Order to file docu- argue that the mentary proof state waived its Ma- that state remedies had been 4, responded by filing Magistrate Judge the found the Magouirk evi- exhausted'. copies in and decisions of selected briefs filed offered at trial was suffi- dence state by Louisiana courts. support Magouirk’s rendered the cient conviction. The Thereafter, Magistrate Judge entered a the Magistrate Judge reached that conclusion That Order. order re- second Memorandum any without state court record of answer, quired to file an a brief Thus, the state Magistrate Judge trial. recom- answer, copy of support of its and a “certified Magouirk’s petition mended that be denied record,” including all docu- the state court claims, as to all cause dis- appeal part any as filed on or ments direct missed. relief, application post-conviction tran- Magouirk timely objections, challeng filed proceedings all held scripts of ing Magistrate Judge’s sponte sua invo court, copies of or citations to all state procedural cation default doctrine with arising Magouirk’s con- court decisions out of respect proposed and his viction. disposition of claims on the merits. complied with this court The state never Magistrate The district court held that the Instead, filed a Motion to order. state power Judge had Dismiss, arguing Magouirk had failed sponte, citing v. default sua Graham John five his remedies because the exhaust state son, 1996) (permitting Cir. presented never to the listed claims were raised the exhaustion doctrine highest state’s court. sponte). also The district court held Louisiana to adopt Court free response, arguing Magouirk filed “preponderance the Second Circuit’s technically claims were exhausted because determining Mago evidence” standard for was time See further state relief barred. waiver, uirk’s rather than the “clear and 731-33, Thompson, v. Coleman 501 U.S. by convincing evidence” standard used our 115 L.Ed.2d 640 S.Ct. In Court United States Thevis. all (claims “technically” are exhausted when respects, adopted other district available, longer relief no without state Report and Recommendation issued regard actually the claims were Magistrate Judge, judgment and entered dis by presentation applicable exhausted missing Magouirk’s courts). claims. pointed also out state had made effort comply with the court’s Memorandum Order X.

requiring state to file an answer and Magouirk’s Appeal to This Court proceedings certified record of timely appeal filed notice court. requesting ap- and a motion certificate Relying the selective state (COA) court, pealability from pleadings Magouirk, and decisions filed Magouirk appealed, which was denied. Magistrate Judge Report filed granted Magouirk a COA limited petition that for Recommendation (1) Magistrate to two issues: whether the 1, respect to 3 be denied. With claims relief Judge procedural default sua properly raised 5, Judge accepted Mago- Magistrate and the Magouirk’s objec- sponte, and his techni- uirk’s that claims were Judge’s report pro- Magistrate to tions the exhausted, cally sponte but sua the raised him to adequate opportunity an vided premise that those claims were nonetheless prejudice or a funda- 'demonstrate cause and procedurally to respect With defaulted. miscarriage justice, of which mental either 2, Magistrate Judge claim that concluded the. potentially de- could excuse findings the trial the issue of waiv- court’s on fault. evidence, supported by er enti- were the and appeal, Magouirk challenges Magis- the presumption of On tled to a correctness. ap- sponte Judge Judge’s trate invocation Magistrate reached conclusion procedural default doctrine to pro- plication without state record 1, also chai- respect claim 3 ceedings on With to bar claims remand. 356 disposition of claim and the

lenges findings the district court’s dard used fact with made Specifically, Magouirk respect ar- 2 on merits. to on remand to trial (1) that the trial used the gues court.

wrong evidentiary deciding standard when on Lindh, Supreme In Court clarified Amendment remand he waived his Sixth only applies corpus AEDPA to those habeas Durbyn, right to confront on or claims filed after AEDPA’s effective findings court’s fact remand were on supplanted pre-Lindh thus date. Lindh our Although Magouirk does not erroneous. precedent AED- applied like Drinkard that specifically challenge the court’s dis- pending PA to that were effec- eases on the 4, claim, sufficiency position of claim Lindh, the Act. In light tive date of it is argue does that his claims should apparent now claims are have been absence of a dismissed governed pre-AEDPA law. complete record. pre-AEDPA law, habeas Under a

DISCUSSION corpus petitioner required a obtain (CPC) probable appeal. certificate of cause I. Johnson, (5th 1069, 132 Lucas v. F.3d 1073 Scope Review Cir.1998). granted A CPC was when petitioner — was able to make “a substantial U.S.-, Murphy, Prior to Lindh v. showing right.” of the denial of a federal 2059, (1997), 117 138 S.Ct. L.Ed.2d 481 Lucas, 1073; Johnson, 132 F.3d at Rector v. Magouirk’s § at the time 2254 action became (5th 551, Cir.1997), 120 557 F.3d de cert. appeal, ripe applied our Circuit Anti- —nied, -, 1061, U.S. 118 140 S.Ct. Penalty terrorism and Effective Death Act of (1998). CPC, issuing L.Ed.2d 122 When (AEDPA), 104-132, 1996 Pub.L. No. 110 required specify the court was not 1214, corpus Stat. habeas were appeal, issues to be considered on before, on, 24, pending April but filed request all for review of issues was sufficient E.g., effective date of 1996 AEDPA. Drin bring petitioner’s all claims-before Johnson, (5th Cir.1996), 97 F.3d kard Johnson, — Court for review. McBride v. denied, 1114, -, cert. U.S. S.Ct. (5th Cir.1997). (1997). § 137 L.Ed.2d 315 on, before, pending action was filed and was Magouirk’s ease is not the first to fall into Thus, April AEDPA’s 1996 effective date. gap precedent ap between our Circuit’s Magouirk sought permission appeal, when plying April AEDPA to cases pending in request this considered that under disposition Court’s AEDPA. Rector, 557; E.g., Lindh. 120 F.3d at Hall Johnson, (5th requires petitioner AEDPA a habeas to mark v. — (COA) denied, appealability Cir.), a certificate -, obtain cert. U.S. 2253(c). appeal. 576, 139 (1997); § order 28 U.S.C. A L.Ed.2d 415 John Tucker v. granted son, petitioner when Cir.), COA is able to de cert. —nied, -, “a showing make substantial of the denial of U.S. S.Ct. 2253(c)(2). (1997). § right.” a constitutional Id. L.Ed.2d 492 Because the standards COA, granting a required pre-AEDPA When the court is issuing CPC were the specify which issues are suitable for con- for issuing post-AEDPA same as those 2253(c)(3). appeal. COA, § sideration In generally Id. we have grant allowed our standards, post-AEDPA accordance satisfy require AEDPA COA to granted Magouirk’s Court request pre-AEDPA for a ment for a CPC in cases. these COA, Rector, Hallmark, but 4; limited review to the issue F.3d at 557 n. 120 118 1077; Tucker, Magistrate Judge and the dis- F.3d at 115 We F.3d at 276. properly that, upon procedur- trict court relied have also held cases in which Lindh 1, pur al default doctrine to of claims compels previous bar review to “construe grant us 2, CPC,” McBride, 3 5. The Court grant denied review of claim a COA as a of a 118 Magouirk’s challenge evidentiary 436, grant stan- such a particular F.3d at “on a

357 131-33, Granberry, 481 U.S. at 107 S.Ct. at brings up all the issues issue nonetheless yet no a peti- 1674. And there is doubt that petitioner’s habeas in a federal raised sponte may petition- sua federal court raise our earlier tion,” construe id. We therefore state law remedies er’s failure to exhaust to be COA in this case grant of a limited litigation apply that doctrine to bar federal This will an unlimited CPC. Court grant of petitioner’s claims until .exhaustion com- propriety of the district only not review 131-35, 1674-75; plete. Id. at 107 S.Ct. at 1, 3 5 were that claims holding court’s Graham, Similarly, 94 F.3d at 969-70. defaulted, procedurally but also that court’s may refuse to honor the state’s Court disposition Magouirk’s remaining claims defense, comity an exhaustion when or Moreover, all references on the merits. judicial efficiency appropriate it make opinion § are limited to in this 2254 upon complete exhaustion. insist prior it provision as existed of that substance 131-33, Granberry, at 107 S.Ct. at 481 U.S. AED- of that section to the amendment Graham, 1674; 94 at 970. F.3d PA. Court has held that the com II. ity and concerns that underlie the federalism applica requiremént equally are exhaustion Authority To Federal Court Raise procedurally de ble when claims have been Procedural Default Coleman, 729-33, 501 faulted. See U.S. Authority A. The District Court’s S.Ct, our 111 at 2554-55. Some of sister Magistrate Magouirk argues that the expressly upon relied the simi circuits have authority the procedur to raise Judge lacked procedural larity between exhaustion de sponte proce sua because al default defense may that a exer fault hold federal defect, (1) a jurisdictional is not dural default procedural its default cise discretion that must be is an affirmative defense James, Washington sponte. E.g., v. 996 sua specifically pleaded and be can waived. (2d Cir.1993); 1442, F.2d 1447 Hardiman v. that, (10th in the Cir.1992); is correct 500, Reynolds, F.2d 504 971 context, procédural (3d of a Freeman, 159, habeas the existence v. F.2d 164 Cir. Hull 932 destroy jurisdiction of default does not 1991), grounds, Caswell v. overruled on other —Cain, v. U.S. (3d Cir.1992); the federal court. Trest Burgin v. Ryan, 953 F.2d 853 480, 478, Cir.1990). -,-, (7th 139 L.Ed.2d 990, Broglin, F.2d 997-98 juris (procedural “is not a Likewise, default ease relied matter”). Magouirk Johnson, is also correct dictional precedent our in Graham v. (5th de procedural default is an affirmative Cir.1996), per which F.3d if the fails to may be fense waived exhaustion sponte mits sua invocation pleadings. E.g., Cu defense in its doctrine, raise the proposition authority for as (5th pit Whitley, 535-36 Cir. v. may also raised sua procedural default 1994); Lynaugh, Mayo 893 F.2d v. sponte. Cir.1990). (5th But not those axioms do Magouirk argues that surprisingly, Not require a federal court the conclusion that important are differences between there may procedural default on not notice procedural default doctrines exhaustion own motion. procedural default require holding sponte. Magouirk Consider, raised example, may analo for failure ex- corpus points out that dismissal gous requiring that a habeas doctrine Failure, merely delays federal haust state remedies petitioner state remedies. exhaust until petitioner’s claim jurisdictional litigation defect. exhaust is not Greer, 129-33, to address state court has Granberry v. 481 U.S. claims, dismissal 1671, 1673-74, petitioner’s while S.Ct. L.Ed.2d Johnson, operates pre- (1987); 970 basis of v. Graham Cir.1996). litigation petitioner’s further Failure exhaust is an affir clude court. state and federal See by the in both the may be waived mative defense (3d Horn, 400, 408-09 rely upon the Smith state’s failure to doctrine. 358

Cir.1997) exercised, (distinguishing sponte between sua none of the federal Circuits has contrary position. taken procedural invocation of nonexhaustion and — denied, -, default), 118 cert. U.S. definitively This Court has never ad (1998). 1037, L.Ed.2d 103 S.Ct. 140 Similar may whether a court dressed federal district ly, Magouirk argues comity that and federal procedural sponte, although raise default sua may implicated greater ism be to a interests implicitly our eases recog some of seem to degree federal court be when a intervenes power E.g., Mayo nize that such a exists. v. fore are when state remedies exhausted than (5th Cir.1990) 683, 893 Lynaugh, F.2d 686 further remedies are be unavailable may it (“although permissible to allow a cause defaulted. any at opportunity district court to evaluate default, procedural alleged the same flex We view differences as a matter of these ibility posited raising cannot be to allow Coleman, degree than substance. rather See procedural any juncture default defense at in (“Just 731-33, 111 501 U.S. at S.Ct. at 2555 Procunier, proceedings”); Wiggins v. 753 prisoner as in in which those cases a state (5th Cir.1985) 1318, 1321 (reviewing F.2d remedies, fails to exhaust a habeas procedural default notwithstanding issue petitioner has failed to the State’s who meet state’s waiver because “the district court ad procedural requirements presenting default”); procedural dressed the issue of see deprived federal has the state courts Johnson, 688, v. also Narvaiz F.3d 134 692- of an to address claims in those (5th Cir.1998); Johnson, v. 93 Goodwin 132 instance.”) Moreover, the first whatever (5th 162, Cir.1998) 178 (relying upon F.3d may eventually force these differences exert - Trest, -, 478, U.S. S.Ct. 118 139 particular on a district court’s of its exercise 444, proposition L.Ed.2d for the procedural discretion to raise doc- default Appeals required Court of is not to raise they sponte, weight trine sua are without procedural sponte). Today, default sua we in this case. claims are “techni- join sister by adopting our circuits the rule because, cally” because, only exhausted may, that a district federal court the exer lapse he allowed his state law remedies discretion, petition cise of its raise a habeas presenting without his claims to the state procedural sponte er’s default sua and then case, courts. In such there is no substan- apply default litiga as a bar to further tial between difference nonexhaustion and petitioner’s tion of claims. Like other feder procedural similarity Id. Given default. courts, recognize al we the district doctrines, case, particularly of these in this court’s exercise its discretion must be adopt we see no reason rule very principles founded same holding inconsistent with our in Graham. judicial comity economy undergird First, Second, Third, Seventh, Ninth, The See, procedural default e.g., doctrine. Tenth recog- Smith, and Eleventh Circuits have all 409; Esslinger, 120 F.3d at 44 F.3d may, 1515, 1525-28; nized that a court exer- federal Granberry, see also 481 U.S. discretion, judicial cise of procedural 129-36, raise at 107 S.Ct. at 1673-76. We turn default sponte sua In- habeas case.2 now to an examination of deed, although vary respect the Circuits properly exercised its discretion may appropriately when that discretion ease. Marshall, 993, (1st 2. See procedural sponte rejected Brewer v. 119 F.3d raised default sua - denied, Cir.1997), -, cert. petition rehearing U.S. S.Ct. Court in a 1172, (1998); remand), Esslinger 140 L.Ed.2d v. the district court on cert. de Davis, 1515, Cir.1995); (11th nied, -U.S.-, 44 F.3d 1523-29 117 S.Ct. 138 L.Ed.2d (10th (1997). Young, Steele v. recently 11 F.3d Cir. de 1447; 1993); Washington, 996 F.2d may at Hardi clined answer whether a habeas court man, 502-03; Ryan, procedural sponte, F.2d at Harmon answering v. default sua (9th Cir.1992); Hull, question presented, 932 F.2d instead the more narrow 4; Burgin Broglin, Appeals 164 n. v. was whether which a Court must (7th 1990); Delo, 997-98 Cir. see also Bannister raise the doctrine of Trest, at---, 1996) (petitioner’s sponte. Cir. -U.S. improperly the district at 480-81.

359 be, may they clearly Its Dis- ment were met in this Court’s Exercise B. The District case. cretion Here, Magistrate Judge’s the Memo default, standing Procedural placed Mago randum and Recommendation alone, always justify a dismissal not does procedural uirk on notice a default was Pro petitioner’s claims. corpus habeas the potentially dispositivé respect issue to with upon a show may be excused cedural default Magouirk responded three of his claims. to application prejudice or that ing of cause and Judge’s sponte Magistrate the sua invocation will result a fundamental of the doctrine procedural ten-day default within the time Coleman, at justice. 501 miscarriage U.S. objections period filing the allowed to 748-50, courts 111 at 2564. Several S.Ct. report:" Thus, Magouirk was both afforded the court’s discre have constrained district opportunity op notice a reasonable to sponte by procedural to default suá tion pose procedural application of the default provide court the habeas requiring that the in the doctrine district court. procedural with de petitioner notice by the an issue for consideration may fault will be purposeful A state’s court, opportuni a reasonable pose sponte habeas an also obstacle to sua reliance appli respond argument opposing default, ty procedural to a the nature Esslinger, 44 E.g., alleged given cation of the doctrine. the state’s “waiver” should be (“[W]e fundamentally it think F.3d at 1528 consideration district court. “[P]roce sponte normally to a a that the unfair for a court sua invoke dural default is defense giving peti obligated preserve is to raise and if it is procedural default without State not to lose the to opportunity to show cause for assert defense tioner an - (“If Trest, -, default.”); petitioner thereafter.” at 118 id. at 1529n. 45 U.S. (internal process, quotations he re at 480 and alterna to afforded due must S.Ct. is omitted). Notwithstanding to inter tions that obli ceive notice of the court’s inclination default, opportunity gation, an to there are situations which the state pose the demon fails, otherwise,” inadvertently ‘prejudice,’ “whether or strate ‘cause’ for default and Granberry, and, present, an a if material fact are to raise meritorious defense. issues of 133-35, 107 evidence.”); Har at at 1675. opportunity present to 481 U.S. S.Ct. Where (“Prior diman, dismissing purposeful or at omission is the result of defense, give forgo sponte, sua court must deliberate decision an action should, case, typical pre complainant opportunity respond in the an district See, dismissal.”); Washing e.g., Es argument for see also sume that waiver be valid. ton, slinger, (finding at an (requiring F.3d abuse at additional ignored sua district court state’s procedural when default raised discretion where briefing procedural express after the sponte appeal). agree that when waiver entered We state) (rather by the default issue was raised federal district court than default, Hardiman, court); (noting sponte procedural 971 F.2d at 502 failure sua raises sponte rule provide petitioner against with notice that the consideration the habeas distinguishes our present ar of waived defenses adver and a reasonable sarial’judicial system inquisitorial from against may, given in a an gument dismissal one). case, Conversely, inadver an abuse of 'discretion. We when omission constitute tent, likely not, however, may more impose per rule federal interests do se justify any particular form of or “a fresh look” at omitted defense requiring notice —Trest, at Granberry, 481 U.S. argument. at the habeas court. additional See U.S. (‘We 1675; -, 133-35, Washing say at see also 118 S.Ct. at 481 do not S.Ct. (“This ton, case briefing is not a always must ask for further consciously waived disposes government when it of a case on basis where often, here, procedural knowing that argued. default defense previously But as ; (and valid.”) Henderson, fairer) way may it indeed be longer somewhat often home’.”). may the court way (holding F.2d at 498 ‘round is the shortest Whatev- when the state parameters require- precise er consider belatedly procedural inadvertently omits or raises the state’s failure to raise defense, in may this was the of a that the court not override default case result consid- but forgo to de- ered and deliberate decision to waive reliance a state’s deliberate decision fense). reasons, upon that For doctrine. these we no abuse find of the district court’s discretion The in this case indicates that the record Magouirk’s procedural to raise default sua byprod was an inadvertent state’s “waiver” (cid:127) sponte. briefing. uct of While it is true that careless argument the thrust the state’s in favor of of III. its the ex Motion to Dismiss focused requirement, Application is haustion it also true that Procedural of only Doctrine Magouirk’s claims were exhausted be Default present cause his to the he failed claims Magouirk raised five claims in his they state before were time court barred. petition. federal habeas objecting Claim correctly argued The fact state essential attempt state’s to the offer new evidence timely present that Magouirk failed to petition appeal, in rehearing its on was highest claims to state’s court. More presented Mago never state court. over, upon procedural the state relies argument uirk made that for the first time in Narvaiz, in its to this Court. petition. alleging Cf. his federal habeas Claim 692-93; Goodwin, F.3d at constitutionally that trial counsel was ineffec raising no in (finding federal interest tive, only court, was raised in the state procedural sponte appeal default sua part Magouirk’s of petition post- as argue where failed to in doctrine Magouirk conviction relief. concedes that he ap both court the district court of seeking is time-barred from further relief in peals). cannot from We conclude this record Therefore, Magouirk’s the Louisiana courts. intentionally waived reliance present failure claims 1 and 5 to the Thus, upon procedural default. the circum proper procedural Louisiana courts creates stances case not such of this are purposes default for of federal habeas re Magistrate Judge and district court were Hargett, view. See Sones v. F.3d (5th Cir.1995). inelegant presen bound to honor state’s procedural tation of the default defense. 3, challenging Claim the introduction We conclude that a federal district court evidence, presented “other crimes” was judicial discretion, may, in the exercise of its Appeal the Louisiana Court of on interlocu procedural sponte. default sua appeal, tory again part to that court as court’s exercise of its discretion not be should appeal. direct Magouirk first automatic, every in in- but must ease be not, now, present did and cannot this claim to balancing formed those factors relevant to Supreme the Louisiana Court. Thus claim 3 comity judicial federal interests procedurally is also defaulted. economy against petitioner’s substantial Magouirk argues his failure to seek review justice. interest Once federal district of claim 3 Louisiana Supreme Court to raise default sua elects be should excused because the review is dis- sponte, should consider whether cretionary. Magouirk recognizes that justice requires petitioner that the habeas requires presented Court afforded with notice oppor- and reasonable court, highest state’s even when the review is tunity present briefing argument op- Procunier, discretionary. Richardson v. Likewise, posing dismissal. the district court Cir.1985). (5th Magouirk 431-32 should consider whether the state’s failure to nonetheless contends the Court should merely raise the is defense inadvertence or prior overrule in Richardson decision purposeful the result forgo decision to Eighth approach embrace the Circuit’s the defense. Erickson, Doing v. . Magouirk Cir.1994), was afforded both notice and require which does not exhaustion oppose reasonable discretionary dismissal. Alternatively, remedies. Likewise, distinguish there is no evidence that asks the Court to Rich- challenges the state trial court’s ex- Claim both Ribhardson examined ardson because waiver, in Texas state courts. findings haustion fact on the issue and that like- discretionary more review argues that preponderance court’s use of the evi- Texas, the Texas Court because ly dence standard to determine exclusively Appeals has criminal Criminal presented waiver. to the Loui- Claim the Louisiana jurisdiction while appeal, siana Court of on direct mat- criminal both civil and handles Supreme Mago- to the Louisiana Court that we should Magouirk’s ters. of application uirk’s for writ certiorari. highest court from the state’s remove Thus, 2 has not claim been defaulted and we no loop unp.ersuasive. We find is exhaustion disposition of claim review the district court’s attempt disagree with or to distin- reason 2 on the merits. binding in Rich- precedent guish this Court’s procedurally is defaulted. ardson. Claim 3 Magouirk argues first court determined The district adoption Appeal’s of of the Louisiana Court faded to demonstrate cause Magouirk preponderance of the evidence standard to miscarriage of or a fundamental prejudice Magouirk’s deprived him waiver determine of his default justice that would excuse right to confront of his Sixth Amendment 1, agree. Magouirk’s 3 and 5. We claims Durbyn. Magouirk Whether waived his con authority of the objections challenge the right Durbyn is a fed stitutional confront Magistrate Judge to default federal, state, question by not eral controlled Although' he had sponte without notice. Collins, 132. law. Shaw v. 5 F.3d at As not at Magouirk did even opportunity, concedes, held, Magouirk district court explain why pursue he failed to tempt by not state courts are bound Louisiana time within the state remedies available making precedent when a de Magouirk has Fifth Circuit by state law. frame allowed appeal, See, oversight on even e.g., not corrected of law.3 Free termination federal placed Magouirk on though this Court’s COA Lane, 1252, 1258 962 & n. man v. 3 [7th would his for the default notice that excuse 1351, Cir.1992); Crisp, Bromley v. appeal. an on issue (10th Cir.1977), Peyton, Owsley v. 352 1354 (4th Cir.1965). procedurally 804, The Louisiana default- F.2d 805 Claims 3 and 5 are both Although Magouirk rejected had notice Appeal ed. considered and Court present argument Thevis, an v. 665 F.2d 616 United States opposing application district court Cir.1982), and convinc requires which clear doctrine, Magouirk made procedural default his ing has waived evidence a defendant Indeed, his attempt no to excuse default. right by misconduct. Id. confrontation upon'his to establish Magouirk relied s, Appeal Rejecting Thevi the Court The district court’s “technical” exhaustion. adopted Circuit’s decision the Second 1, 3 5 is affirmed. disposition of claims Mastrangelo, United States (2d Cir.1982), permits finding a which IV. preponderance of the proof by on Remaining Claims Magouirk’s 693 F.2d at 272-73. Mastrangelo, evidence. preponder adoption of the Mastrangelo’s claims, remaining 2 and not inadvertent—the procedurally ance standard was defaulted. have not been course, right Appeal by mis- defendant's confrontation Court of would criminal 3. Of Louisiana (address- Jones, Supreme precedent Court be bound Louisiana 325 So.2d at conduct. See briefly pre- point. Magouirk argues that the on ing required ’to demonstrate that the standard in- ponderance also Johnson, of the evidence standard is testify); witness is unavailable prece- with Louisiana consistent dent, (involving the denial of a So.2d at 650 criminal Jones, citing State v. 325 So.2d request pro- transcript of trial defendant's Johnson, (La.1976), and State v. La. Mastrangelo, ceedings); also States v. see United (1972). Although those both of So.2d (“waiver by an is 693 F.2d at misconduct right; confrontation neither cases discuss the underlying right of con- from the issue distinct evidentiary Jones nor Johnson addresses frontation”). required waiver of standard demonstrate opinion lengthy necessary portions discussion contains the state court record standards, by Magouirk simply 6ur in had been filed and cites decision incor- various Magouirk only filed rect. a selection of Thevis. The Louisiana Court courts, together briefs filed Louisiana adopt preponderance of the evi free to published some of the determining resulting decisions dence standard state, his from conviction. Neither the which upon waiver. That Court’s reliance Mas to file a record, had been ordered state court deprive Magouirk of trangelo did Magouirk, proceed- nor filed a record Durbyn. right Sixth to confront Amendment ings in court. The district chal also renews his adopted Magistrate Judge’s recom- lenge findings trial court’s fact findings mendation that the state trial court remand that the state did not waive its presumed without correct elaboration. rely waiver mis meaningful There is no basis review of conduct, con waived his Magouirk’s challenge to the state court fact right by frontation misconduct.4 The state findings in existing the record. The record findings trial were made after hear court’s a not pleadings does contain the filed on re ing by on the merits and are evidenced a The does mand. record not contain a tran opinion both analyzing written factual issues. script of proceedings the on remand. In circumstances, In such the state trial court’s deed, only portion the of the record that typically pre fact findings are entitled to a provides any for meaningful basis review of sumption of correctness. See 28 U.S.C. Magouirk’s claim the trial state court’s 2254(d). § presumption may That rebut be findings fact are erroneous is the state trial ted, alia, by showing inter the fact remand, simply court’s order on which states finding procedure employed by the state very findings being subjected fact here adequate court not to afford a full and Regardless of review. how deferential fair hearing, or that the material facts were of for standard review state court fact find developed not at adequately the state court manner, ings in secured fail to we see 2254(d). Moreover, § hearing. Id. state all how review at can be conducted when findings may court be fact not to the entitled portions relevant of the court state rec same deference when the federal habeas rec not ord on remand are available review. portion ord does not contain that of the state Sain, 293, 318-20, See Townsend v. 372 U.S. required court record is establish the (1963) (“Or 745, 760, 9 L.Ed.2d 770 sufficiency support of the evidence to dinarily such record—including the tran 2254(e). § state fact finding. court’s Id. (or script testimony if unavailable some Magistrate Judge The found that he could substitute, such adequate as a narrative rec proceed to an examination of the merits ord), pleadings, opinions, court and other Magouirk’s challenge correctness pertinent indispensable documents—is to de findings state trial court’s fact because termining applicant whether the habeas re publish- “the state court record this case is a full ceived and fair evidentiary state-court necessary portions ed and the of the record hearing resulting findings.”); in rehable Bak provided by Magouirk.” have been The Estelle, Cir.1983) er Magistrate Judge supported that assertion (excusing produce state’s failure to necessary provisions § citation to those required by as record court order where newly passage amended of AEDPA. state record was shown to be unavailable and produced). alternative evidence was Magistrate Judge’s

The statement that the published state court puzzling. problem record was think We a similar infects the Magistrate Judge’s The assertion that district court’s dismissal of Mago- claim right remand, scope Whether waived his to confront er of the court’s on district review Durbyn question is a federal of constitutional encourage we the district court to be mindful of dimension. Whether the waived state the fundamental between these two difference. by failing the. assert considering Mago- factual when determinations is a matter of state law. Al- uirk’s claims. though express concerning prop- we no view sufficiency Mago- of the state court record. of the evi- relevant challenge uirk’s to the challenge uirk’s correctness of the The record before against him. dence findings court state fact be not contain court must then evalu- court did light are at a ated in of the state of the trial. We court record transcript Magouirk’s proceedings Similarly, Mago- habeas remand. how a federal to understand loss sufficiency meaningful challenge sufficiency uirk’s evi- of the can conduct transcript light be trial. dence must then evaluated without a review If, adopted in the order court record trial. Magistrate Judge, reason, court, rely solely purported whatever relevant state the district available, reported the facts records are not the district court the rendition of evidentiary deny- must hearing decision order an Louisiana Court of sufficiency presentation relating Mago- claim on direct of evidence ing Magouirk’s uirk’s Magouirk may face claims. The district court is reminded again, Once appeal. that, disposition con- review of his under the Court’s heavy burden on collateral — mean, however, U.S.-, Murphy, Lindh v. S.Ct. That does viction. (1997), Magouirk’s upon the state court 138 L.Ed.2d may simply rely we by pre-AEDPA denying governed as claims are law. Magouirk identifies decision support our conclu- rights to constitutional opinion way or the express We no one This ease they not violated. were sion ultimately other to whether will as that the record can must remanded so be able to establish a violation of his constitu- portions the those supplemented with merely the rec- rights: tional We hold that necessary to conduct state court record court, ord before the district which contained meaningful review. proceedings the state no record of the before remand, and of Ma- court on no record by the justified fact Remand is also trial, provide gouirk’s meaningful did his deference Magistrate Judge premised the Magouirk’s basis for review of claims findings upon that court fact to the state findings the trial court’s fact on remand were by §of that has been amended version pre- clearly and that evidence erroneous the § 2254- The version of AEDPA. amended sup- him was against sented insufficient on habeas places a more onerous burden port his conviction. presump the who seek to rebut petitioners fact state court tion of correctness afforded CONCLUSION Anderson, 112 F.3d findings. Jackson v. - (5th Cir.1997), denied, 823, cert. 824-25 application pro- the The court’s district 1059, U.S.-, 140 L.Ed.2d Claims cedural doctrine (1998). Thus, Judge’s appli Magistrate 1, the de- is without error. and 5 claims, Magouirk’s 1, and, of AEDPA to although cation he faulted 3 and 5 precedent so, our Mago- which conformed to to do afforded shown to incor subsequently time but was uirk has not either cause .established Lindh, view may have influenced his justice rect prejudice miscarriage of or a manifest Therefore, afforded the chal of the deference to be sufficient to excuse default. lenged findings fact burden court’s dismissal of claims district overcoming that deference. and 5 is AFFIRMED. 2, to reasons, of claim The court’s dismissal the district foregoing For district accuracy of challenged it it extent extent court’s dismissal of claim remand, findings court’s on findings state trial trial court’s fact challenges sufficiency remand, challenging claim Magouirk’s chal- and claim conviction, evidence, support Magouirk’s sufficiency of the will evidence lenge to the adequate in the absence of an to was ordered will be remanded be vacated. The case dis- Accordingly, the court’s record. district instructions that the district court with is VA- missal claims on-the merits Mag- of these compliance with the district court order with CATED, the cause REMANDED requiring that Judge’s order istrate earlier remand, must be the state copy instructions. On the state file an answer and certified comply Magistrate Judge’s ordered submitting a com- DOUGLAS,

Memorandum Order M. Kordice Plaintiff- whatever plete If, state court record. Appellee-Cross-Appellant, available, reason, those records are not evidentiary court must order an hear- DYNMcDERMOTT receiving PETROLEUM OPER purpose evidence

ing for COMPANY; Poindexter, ATIONS John to those claims. relevant Defendants-Appellants-Cross-Appellees. judgment of district court is AF- part, part, VACATED in FIRMED No. 96-30883. is REMANDED with instructions the cause Appeals, United States Court of proceedings. further Fifth Circuit. SMITH, Judge, E. Circuit JERRY June

dissenting part: join’the majority’s opinion except I 4,” “claim the claim

its decision address conviction was obtained with and-(2) evidence,

insufficient the remand.or-

der, language, loose allows a which

re-arguing wholly state-law

claim that has waived its prisoner

argue this his confron- waived rights. I respectfully

tation therefore dis- part.

sent

Magouirk’s opening brief in does sufficiency-of-the-evidence

not raise issue generous readings. even the most

under

Accordingly, jurispru- under the well-settled circuit, non-jurisdictional of this this

dence See, e.g., is waived. Brinkmann v. Abner, County Deputy

Dallas Sheriff (5th Cir.1987). 744, 748 T would not this, other, or

address issues that

has chosen not to argue raise and this

court. explicitly

I scope would also limit the federal,

the remand is- constitutional

sue of waiver of his confrontation

rights. The distinct issue its claim

has waived to assert that rights

has his constitutional waived is an purely of

issue state law and is renewa- aby

ble federal majority habeas court. The

errs to the -extent that its remand order can encompass

be read issue of law.

Case Details

Case Name: Kenneth Wayne Magouirk v. Michael Phillips, Warden, Winn Correctional Center and Richard P. Ieyoub, Attorney General, State of Louisiana

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 18, 1998

Citation: 144 F.3d 348

Docket Number: 96-31049

Court Abbreviation: 5th Cir.